Contract
Exhibit 10.1 Execution Version FOURTH AMENDED AND RESTATED CREDIT AGREEMENT by and among BANK OF AMERICA, N.A., as Administrative Agent, BANK OF AMERICA, N.A., and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Joint Lead Arrangers, BANK OF AMERICA, N.A., and PNC BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent THE LENDERS THAT ARE PARTIES HERETO, as the Lenders, TITAN MACHINERY, INC., HEARTLAND AGRICULTURE, LLC, HEARTLAND AG KANSAS, LLC, and CERTAIN ENTITIES JOINED HERETO AS A U.S. BORROWER, as the U.S. Borrowers, and X.X. X’XXXXXX & SONS PTY LTD, and CERTAIN ENTITIES JOINED HERETO AS AN AUSTRALIAN BORROWER, as the Australian Borrowers Dated as of May 17, 2024
v EXHIBITS AND SCHEDULES Exhibit A-1 Form of Assignment and Acceptance Exhibit B-1(i) Form of U.S. Revolver Borrowing Base Certificate Exhibit B-1(ii) Form of Australian Revolver Borrowing Base Certificate Exhibit B-2(i) Form of U.S. Floorplan Borrowing Base Certificate Exhibit B-2(ii) Form of Australian Floorplan Borrowing Base Certificate Exhibit B-4 Form of Bank Product Purchase Agreement Exhibit C-1 Form of Compliance Certificate Exhibit L-1 Form of SOFR Notice/ Bill Rate Notice Exhibit N-1 Form of Notice of Borrowing Schedule 1.1 Defined Terms Schedule A-1 Agent’s Account Schedule A-2 Authorized Persons Schedule C-1 U.S. Commitments Schedule C-2 Australian Commitments Schedule D-1 Designated Account Schedule E-2 Existing Letters of Credit Schedule E-3 Existing Hedge Agreements Schedule P-1 Permitted Investments Schedule P-2 Permitted Liens Schedule 3.1 Conditions Precedent Schedule 3.6 Conditions Subsequent Schedule 4.1(b) Capitalization of Borrowers Schedule 4.1(c) Capitalization of Borrowers’ Subsidiaries Schedule 4.1(d) Subscriptions, Options, Warrants, Calls Schedule 4.1(e) Fiscal Year Ends Schedule 4.6 Litigation Schedule 4.10 ERISA Matters Schedule 4.11 Environmental Matters Schedule 4.14(a) Indebtedness Schedule 4.14(b) Permitted Indebtedness Schedule 4.24 Location of Inventory Schedule 5.1 Financial Statements, Reports, Certificates Schedule 5.2 Collateral Reporting Schedule 6.5 Nature of Business Schedule 6.10 Transactions with Affiliates
1 FOURTH AMENDED AND RESTATED CREDIT AGREEMENT This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), is entered into as of May 17, 2024, by and among the lenders identified on the signature pages hereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender”, as that term is hereinafter further defined), BANK OF AMERICA, N.A., a national banking association, as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”) and as Australian Security Trustee, BANK OF AMERICA, N.A. and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as joint lead arrangers (in such capacity, together with their successors and assigns in such capacity, the “Joint Lead Arrangers”), BANK OF AMERICA, N.A. and PNC BANK, NATIONAL ASSOCIATION, as co-documentation agents, TITAN MACHINERY, INC., a Delaware corporation (“Titan”), HEARTLAND AGRICULTURE, LLC, an Iowa limited liability company (“Heartland Agriculture”), HEARTLAND AG KANSAS, LLC, a Kansas limited liability company (“Heartland Kansas” and together with Titan, Heartland Agriculture and any other entity joined hereto as a U.S. Borrower from time to time, individually, a “U.S. Borrower” and collectively, the “U.S. Borrowers”), and X.X. X’XXXXXX & SONS PTY LTD, a company incorporated under the laws of Australia with ACN 005 242 142 (“J.J.”; and together with any other entity joined hereto as an Australian Borrower from time to time, individually, an “Australian Borrower” and collectively, the “Australian Borrowers”; and together with the U.S. Borrowers, each, a “Borrower” and collectively, the “Borrowers”). WHEREAS, U.S. Borrowers, Agent and certain Lenders are party to that certain Third Amended and Restated Credit Agreement dated as of April 3, 2020 the (“Original Closing Date”) (as amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”); and WHEREAS, the parties to the Existing Credit Agreement desire to (a) amend and restate the Existing Credit Agreement in its entirety pursuant to this Agreement, and (b) add the Australian Borrower as a Borrower hereunder, in each case, pursuant to the terms and subject to the conditions of this Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1 DEFINITIONS AND CONSTRUCTION. 1.1 Definitions. Capitalized terms used in this Agreement shall have the meanings specified therefor on Schedule 1.1. 1.2 Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP; provided, that if Borrowers notify Agent that Borrowers request an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the application thereof on the operation of such provision (or if Agent notifies Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such Accounting Change or in the application thereof, then Agent and Borrowers agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change
3 regardless of whether demand has been made therefor, (iii) all fees or charges that have accrued hereunder or under any other Loan Document (including the Letter of Credit Fee and the Unused Line Fee) and are unpaid, (b) in the case of contingent reimbursement obligations with respect to Letters of Credit, providing Letter of Credit Collateralization, (c) in the case of obligations with respect to Bank Products (other than Hedge Obligations), providing Bank Product Collateralization, (d) the receipt by Agent of cash collateral in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including attorneys’ fees and legal expenses), such cash collateral to be in such amount as Agent reasonably determines is appropriate to secure such contingent Obligations, (e) the payment or repayment in full in immediately available funds of all other outstanding Obligations (including the payment of any termination amount then applicable (or which would or could become applicable as a result of the repayment of the other Obligations) under Hedge Agreements provided by Hedge Providers) other than (i) unasserted contingent indemnification Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding without being required to be repaid or cash collateralized, and (iii) any Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider to remain outstanding without being required to be repaid, and (f) the termination of all of the Commitments of the Lenders. Any reference herein to any Person shall be construed to include such Person’s successors and assigns. Any requirement of a writing contained herein or in any other Loan Document shall be satisfied by the transmission of a Record. 1.5 Time References. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all references to time of day refer to Pacific standard time or Pacific daylight saving time, as in effect in Los Angeles, California on such day; provided, that all references to time of day with respect to Australian Revolver Loans, Australian Floorplan Loans and Letters of Credit issued on behalf of Australian Borrowers shall refer to the time in Sydney, Australia. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to and including”; provided that, with respect to a computation of fees or interest payable to Agent or any Lender, such period shall in any event consist of at least one full day. 1.6 Schedules and Exhibits. All of the schedules and exhibits attached to this Agreement shall be deemed incorporated herein by reference. 1.7 Effect of Amendment and Restatement; No Novation; Release. Upon the effectiveness of this Agreement, the Existing Credit Agreement shall be amended and restated in its entirety by this Agreement. The Existing Obligations outstanding on the Closing Date shall continue in full force and effect, and the effectiveness of this Agreement shall not constitute a novation or repayment of the Existing Obligations. Without limiting the foregoing, upon the effectiveness of this Agreement, (i) the outstanding “Revolver Loans” (as defined in the Existing Credit Agreement) shall constitute Revolver Loans hereunder, (ii) the outstanding “Floorplan Loans” (as defined in the Existing Credit Agreement) shall constitute Floorplan Loans hereunder, (iii) the outstanding “Swing Loans” (as defined in the Existing Credit Agreement) shall constitute Swing Loans hereunder. Such Existing Obligations, together with any and all additional Obligations incurred by Borrowers under this Agreement or under any of the other Loan Documents, shall continue to be secured by, among other things, the Collateral, whether now existing or hereafter acquired and wheresoever located, all as more specifically set forth in the Loan Documents. Borrowers hereby reaffirm their obligations, liabilities, grants of security interests, pledges and the validity of all covenants by it contained in any and all Loan
10 determine whether the applicable conditions precedent set forth in Section 3 have been satisfied on the Funding Date applicable thereto prior to making any U.S. Revolver Swing Loan. The U.S. Revolver Swing Loans shall be secured by Agent’s Liens, constitute U.S. Revolver Loans and U.S. Obligations, and bear interest at the rate applicable from time to time to U.S. Revolver Loans that are Floating U.S. SOFR Rate Loans (or, if the applicability of Section 2.12(b)(iv) has been terminated, U.S. Base Rate Loans). (ii) In the case of a request for a U.S. Floorplan Loan and so long as the aggregate amount of U.S. Floorplan Swing Loans made since the last Settlement Date, minus all payments or other amounts applied to U.S. Floorplan Swing Loans since the last Settlement Date, plus the amount of the requested U.S. Floorplan Swing Loan does not exceed 10% of the U.S. Maximum Floorplan Amount, U.S. Floorplan Swing Lender shall make a U.S. Floorplan Loan (any such U.S. Floorplan Loan made by U.S. Floorplan Swing Lender pursuant to this Section 2.3(b)(ii) being referred to as a “U.S. Floorplan Swing Loan” and all such U.S. Floorplan Loans being referred to as “U.S. Floorplan Swing Loans”) available to U.S. Borrower on the Funding Date applicable thereto by transferring immediately available funds in the amount of such requested Borrowing to the Designated Account. Each U.S. Floorplan Swing Loan shall be deemed to be a U.S. Floorplan Loan hereunder and shall be subject to all the terms and conditions (including Section 3) applicable to other U.S. Floorplan Loans, except that all payments (including interest) on any U.S. Floorplan Swing Loan shall be payable to U.S. Floorplan Swing Lender solely for its own account. Subject to the provisions of Section 2.3(d)(ii), U.S. Floorplan Swing Lender shall not make and shall not be obligated to make any U.S. Floorplan Swing Loan if U.S. Floorplan Swing Lender has actual knowledge that (A) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing, or (B) the requested Borrowing would exceed the U.S. Floorplan Availability on such Funding Date. U.S. Floorplan Swing Lender shall not otherwise be required to determine whether the applicable conditions precedent set forth in Section 3 have been satisfied on the Funding Date applicable thereto prior to making any U.S. Floorplan Swing Loan. The U.S. Floorplan Swing Loans shall be secured by Agent’s Liens, constitute U.S. Floorplan Loans and U.S. Obligations, and bear interest at the rate applicable from time to time to U.S. Floorplan Loans that are Floating U.S. SOFR Rate Loans (or, if the applicability of Section 2.12(b)(iv) has been terminated, U.S. Base Rate Loans). (iii) In the case of a request for a Australian Floorplan Loan and so long as the aggregate amount of Australian Floorplan Swing Loans made since the last Settlement Date, minus all payments or other amounts applied to Australian Floorplan Swing Loans since the last Settlement Date, plus the amount of the requested Australian Floorplan Swing Loan does not exceed AUS$5,000,000, Australian Floorplan Swing Lender shall make a Australian Floorplan Loan (any such Australian Floorplan Loan made by Australian Floorplan Swing Lender pursuant to this Section 2.3(b)(iii) being referred to as a “Australian Floorplan Swing Loan” and all such Australian Floorplan Loans being referred to as “Australian Floorplan Swing Loans”) available to Australian Borrower on the Funding Date applicable thereto by transferring immediately available funds in the amount of such requested Borrowing to the Designated Account. Each Australian Floorplan Swing Loan shall be deemed to be a Australian Floorplan Loan hereunder and shall be subject to all the terms and conditions (including Section 3) applicable to other Australian Floorplan Loans, except that all payments (including interest) on any Australian Floorplan Swing Loan shall be payable to Australian Floorplan Swing Lender solely for its own account. Subject to the provisions of Section 2.3(d)(ii), Australian Floorplan Swing Lender shall not make and shall not be obligated to make any Australian Floorplan Swing Loan if Australian Floorplan Swing Lender has actual knowledge that (A) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding
13 continuance of a Default or an Event of Default, or (B) that any of the other applicable conditions precedent set forth in Section 3 are not satisfied, Agent hereby is authorized by U.S. Borrowers and the U.S. Lenders, from time to time, in Agent’s sole discretion, to make U.S. Revolver Loans and/or U.S. Floorplan Loans to, or for the benefit of, U.S. Borrowers, on behalf of the applicable U.S. Lenders, that Agent, in its Permitted Discretion, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof, or (2) to enhance the likelihood of repayment of the U.S. Obligations (other than the Bank Product Obligations) (the U.S. Revolver Loans described in this Section 2.3(d)(ii) shall be referred to as “U.S. Protective Revolver Advances”; the U.S. Floorplan Loans described in this Section 2.3(d)(ii) shall be referred to as “U.S. Protective Floorplan Advances”; U.S. Protective Revolver Advances and U.S. Protective Floorplan Advances shall be referred to, collectively, as “U.S. Protective Advances” and together with the Australian Protective Advances, the “Protective Advances”). Notwithstanding the foregoing, (A) the aggregate amount of all U.S. Protective Revolver Advances outstanding at any one time shall not exceed an amount equal to 10% of the U.S. Maximum Revolver Amount, and (B) the aggregate amount of all U.S. Protective Floorplan Advances outstanding at any one time shall not exceed an amount equal to 10% of the U.S. Maximum Floorplan Amount. (iii) Any contrary provision of this Agreement or any other Loan Document notwithstanding, but subject to Section 2.3(d)(iv), the Australian Lenders hereby authorize (A) Agent and Agent may, but is not obligated to, knowingly and intentionally, continue to make Australian Revolver Loans to Australian Borrowers notwithstanding that an Australian Revolver Overadvance exists or would be created thereby, so long as (1) after giving effect to such Australian Revolver Loans, the outstanding Australian Revolver Usage does not exceed the Australian Revolver Borrowing Base by more than by more than 10% (unless Australian Required Lenders otherwise agree to a higher amount), and (2) after giving effect to such Australian Revolver Loans, the outstanding Australian Revolver Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) does not exceed the Australian Maximum Revolver Amount, and (B) Agent or Australian Floorplan Swing Lender, as applicable, and either Agent or Australian Floorplan Swing Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make Australian Floorplan Loans (including Australian Floorplan Swing Loans) to Australian Borrowers notwithstanding that an Australian Floorplan Overadvance exists or would be created thereby, so long as (1) after giving effect to such Australian Floorplan Loans, the outstanding Australian Floorplan Usage does not exceed the Australian Floorplan Borrowing Base by more than by more than 10% (unless Australian Required Lenders otherwise agree to a higher amount), and (2) after giving effect to such Australian Floorplan Loans, the outstanding Australian Floorplan Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) does not exceed the Australian Maximum Floorplan Amount. In the event Agent obtains actual knowledge that an Australian Overadvance exists, Agent shall notify the Australian Lenders as soon as practicable (and prior to making any (or any additional) intentional Australian Overadvances (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case Agent may make such Australian Overadvances and provide notice as promptly as practicable thereafter), and the Australian Lenders shall, together with Agent, jointly determine arrangements to be implemented with Australian Borrowers to eliminate the Australian Overadvance; provided, that Australian Borrowers may not have outstanding Australian Revolver Overadvances or Australian Floorplan Overadvances, as applicable, for more than 30 consecutive days and at the end of such period shall immediately repay Australian Revolver Loans or Australian Floorplan Loans, respectively, in an amount sufficient to eliminate all Australian Overadvances under the applicable tranche. The foregoing provisions are meant for the benefit of the Australian Lenders and Agent and are not meant for the benefit of any Borrower, which shall continue to be bound by the provisions of
14 Section 2.4(e)(1). Each Australian Lender with an Australian Revolver Commitment shall be obligated to make Australian Revolver Loans in accordance with Section 2.3(c), or settle Australian Revolver Overadvances made by Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount of such Australian Lender’s Pro Rata Share of any unintentional Australian Revolver Overadvances by Agent reported to such Australian Lender, any intentional Australian Revolver Overadvances made as permitted under this Section 2.3(d)(iii), and any Australian Revolver Overadvances resulting from the charging to the Loan Account of interest, fees, or Lender Group Expenses. Each Australian Lender with an Australian Floorplan Commitment shall be obligated to make Australian Floorplan Loans in accordance with Section 2.3(c), or settle Australian Floorplan Overadvances made by Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount of such Australian Lender’s Pro Rata Share of any unintentional Australian Floorplan Overadvances by Agent reported to such Australian Lender, any intentional Australian Floorplan Overadvances made as permitted under this Section 2.3(d)(iii), and any Australian Floorplan Overadvances resulting from the charging to the Loan Account of interest, fees, or Lender Group Expenses. (iv) Any contrary provision of this Agreement or any other Loan Document notwithstanding, but subject to Section 2.3(d)(iv), the U.S. Lenders hereby authorize (A) Agent or U.S. Revolver Swing Lender, as applicable, and either Agent or U.S. Revolver Swing Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make U.S. Revolver Loans (including U.S. Revolver Swing Loans) to U.S. Borrowers notwithstanding that a U.S. Revolver Overadvance exists or would be created thereby, so long as (1) after giving effect to such U.S. Revolver Loans, the outstanding U.S. Revolver Usage does not exceed the U.S. Revolver Borrowing Base by more than by more than 10% (unless U.S. Required Lenders otherwise agree to a higher amount), and (2) after giving effect to such U.S. Revolver Loans, the outstanding U.S. Revolver Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) does not exceed the U.S. Maximum Revolver Amount, and (B) Agent or U.S. Floorplan Swing Lender, as applicable, and either Agent or U.S. Floorplan Swing Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make U.S. Floorplan Loans (including U.S. Floorplan Swing Loans) to U.S. Borrowers notwithstanding that a U.S. Floorplan Overadvance exists or would be created thereby, so long as (1) after giving effect to such U.S. Floorplan Loans, the outstanding U.S. Floorplan Usage does not exceed the U.S. Floorplan Borrowing Base by more than by more than 10% (unless U.S. Required Lenders otherwise agree to a higher amount), and (2) after giving effect to such U.S. Floorplan Loans, the outstanding U.S. Floorplan Usage (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) does not exceed the U.S. Maximum Floorplan Amount. In the event Agent obtains actual knowledge that an U.S. Overadvance exists, Agent shall notify the U.S. Lenders as soon as practicable (and prior to making any (or any additional) intentional U.S. Overadvances (except for and excluding amounts charged to the Loan Account for interest, fees, or Lender Group Expenses) unless Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case Agent may make such U.S. Overadvances and provide notice as promptly as practicable thereafter), and the U.S. Lenders shall, together with Agent, jointly determine arrangements to be implemented with U.S. Borrowers to eliminate the U.S. Overadvance; provided, that U.S. Borrowers may not have outstanding U.S. Revolver Overadvances or U.S. Floorplan Overadvances, as applicable, for more than 30 consecutive days and at the end of such period shall immediately repay U.S. Revolver Loans or U.S. Floorplan Loans, respectively, in an amount sufficient to eliminate all U.S. Overadvances under the applicable tranche. The foregoing provisions are meant for the benefit of the U.S. Lenders and Agent and are not meant for the benefit of any Borrower, which shall continue to be bound by the provisions of Section 2.4(e)(1). Each U.S. Lender with a U.S. Revolver Commitment shall be obligated to make U.S.
15 Revolver Loans in accordance with Section 2.3(c), or settle U.S. Revolver Overadvances made by Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount of such U.S. Lender’s Pro Rata Share of any unintentional U.S. Revolver Overadvances by Agent reported to such U.S. Lender, any intentional U.S. Revolver Overadvances made as permitted under this Section 2.3(d)(iv), and any U.S. Revolver Overadvances resulting from the charging to the Loan Account of interest, fees, or Lender Group Expenses. Each U.S. Lender with a U.S. Floorplan Commitment shall be obligated to make U.S. Floorplan Loans in accordance with Section 2.3(c), or settle U.S. Floorplan Overadvances made by Agent as provided in Section 2.3(e) (or Section 2.3(g), as applicable) for the amount of such U.S. Lender’s Pro Rata Share of any unintentional U.S. Floorplan Overadvances by Agent reported to such U.S. Lender, any intentional U.S. Floorplan Overadvances made as permitted under this Section 2.3(d)(iv), and any U.S. Floorplan Overadvances resulting from the charging to the Loan Account of interest, fees, or Lender Group Expenses. (v) Each Australian Protective Revolver Advance, U.S. Protective Revolver Advance, Australian Revolver Overadvance and each U.S. Revolver Overadvance (each, an “Extraordinary Revolver Advance”) shall be deemed to be an Australian Revolver Loan and U.S. Revolver Loan, as applicable, hereunder. Each Australian Protective Floorplan Advance, U.S. Floorplan Protective Advance, Australian Floorplan Overadvance and each U.S. Floorplan Overadvance (each, an “Extraordinary Floorplan Advance”; each, together with each Extraordinary Revolver Advance, an “Extraordinary Advance”) shall be deemed to be an Australian Floorplan Loan or U.S. Floorplan Loan, as applicable, hereunder. No Extraordinary Advance shall be eligible to be a SOFR Rate Loan or Australian Bill Rate Loan, as applicable. Prior to Settlement with respect to Extraordinary Advances, all payments on the Extraordinary Advances, including interest thereon, shall be payable to Agent solely for its own account. The Extraordinary Advances shall be repayable on demand, secured by Agent’s and Australian Security Trustee’s Liens, constitute Obligations hereunder, and bear interest at the rate applicable from time to time to Loans that are Australian Base Rate Loans or U.S. Base Rate Loans, as applicable. The provisions of this Section 2.3(d) are for the exclusive benefit of Agent, each U.S. Swing Lender, and the Lenders, in each case, as applicable, and are not intended to benefit the Borrowers (or any other Loan Party) in any way. (vi) Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary: (A) no Extraordinary Revolver Advance may be made by Agent if such Extraordinary Revolver Advance would cause the aggregate principal amount of Extraordinary Revolver Advances outstanding to exceed an amount equal to 10% of the sum of the Australian Maximum Revolver Amount and U.S. Maximum Revolver Amount; (B) no Extraordinary Floorplan Advance may be made by Agent if such Extraordinary Floorplan Advance would cause the aggregate principal amount of Extraordinary Floorplan Advances outstanding to exceed an amount equal to 10% of the sum of the Australian Maximum Floorplan Amount and U.S. Maximum Floorplan Amount; (C) to the extent that the making of any Australian Protective Revolver Advance causes the aggregate Australian Revolver Usage to exceed the Australian Maximum Revolver Amount, such portion of such Australian Protective Revolver Advance (unless Australian Required Lenders agree to a higher amount) shall be for Agent’s sole and separate account and not for the account of any Australian Lender and shall be entitled to priority in repayment in accordance with Section 2.4(b); (D) to the extent that the making of any U.S. Protective Revolver Advance causes the aggregate U.S. Revolver Usage to exceed the U.S. Maximum Revolver Amount, such portion of such U.S. Protective Revolver Advance (unless U.S. Required Lenders agree to a higher amount) shall be for Agent’s sole and separate account and not for the account of any U.S. Lender and shall be entitled to priority in repayment in accordance with Section 2.4(b); (E) to the extent that the making of any Australian Floorplan Protective Advance causes the aggregate Australian Floorplan Usage to exceed the Australian Maximum Floorplan
17 Revolver Swing Loans and Extraordinary Revolver Advances) made by an U.S. Lender that is not a Defaulting Lender exceeds such U.S. Lender’s U.S. Pro Rata Share of the U.S. Revolver Loans (including U.S. Revolver Swing Loans and Extraordinary Revolver Advances) as of a Settlement Date, then Agent shall, by no later than 12:00 p.m. on the Settlement Date, transfer in immediately available funds to a Deposit Account of such Lender (as such Lender may designate), an amount such that each such Lender shall, upon receipt of such amount, have as of the Settlement Date, its U.S. Pro Rata Share of the U.S. Revolver Loans (including U.S. Revolver Swing Loans and Extraordinary Revolver Advances), (u) if the amount of the Australian Revolver Loans (including Extraordinary Revolver Advances) made by an Australian Lender is less than such Australian Lender’s Australian Pro Rata Share of the Australian Revolver Loans (including Extraordinary Revolver Advances) as of a Settlement Date, such Australian Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds to Agent’s Account, an amount such that each such Australian Lender shall, upon transfer of such amount, have as of the Settlement Date, its Australian Pro Rata Share of the Australian Revolver Loans (including Extraordinary Revolver Advances), (v) if the amount of the U.S. Revolver Loans (including (x) if the amount of the U.S. Revolver Loans (including U.S. Revolver Swing Loans and Extraordinary Revolver Advances) made by an U.S. Lender is less than such U.S. Lender’s U.S. Pro Rata Share of the U.S. Revolver Loans (including U.S. Revolver Swing Loans, and Extraordinary Revolver Advances) as of a Settlement Date, such U.S. Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds to Agent’s Account, an amount such that each such U.S. Lender shall, upon transfer of such amount, have as of the Settlement Date, its U.S. Pro Rata Share of the U.S. Revolver Loans (including U.S. Revolver Swing Loans and Extraordinary Revolver Advances), U.S. Revolver Swing Loans and Extraordinary Revolver Advances) made by an (x) if the amount of the U.S. Revolver Loans (including U.S. Revolver Swing Loans and Extraordinary Revolver Advances) made by an U.S. Lender is less than such U.S. Lender’s U.S. Pro Rata Share of the U.S. Revolver Loans (including U.S. Revolver Swing Loans, and Extraordinary Revolver Advances) as of a Settlement Date, such U.S. Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds to Agent’s Account, an amount such that each such U.S. Lender shall, upon transfer of such amount, have as of the Settlement Date, its U.S. Pro Rata Share of the U.S. Revolver Loans (including U.S. Revolver Swing Loans and Extraordinary Revolver Advances), Lender is less than such U.S. Lender’s U.S. Pro Rata Share of the U.S. Revolver Loans (including U.S. Revolver Swing Loans, and Extraordinary Revolver Advances) as of a Settlement Date, such U.S. Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds to Agent’s Account, an amount such that each such U.S. Lender shall, upon transfer of such amount, have as of the Settlement Date, its U.S. Pro Rata Share of the U.S. Revolver Loans (including U.S. Revolver Swing Loans and Extraordinary Revolver Advances), (w) if the amount of the Australian Floorplan Loans (including Australian Floorplan Swing Loans and Extraordinary Floorplan Advances) made by an Australian Lender that is not a Defaulting Lender exceeds such Australian Lender’s Australian Pro Rata Share of the Australian Floorplan Loans (including Australian Floorplan Swing Loans and Extraordinary Floorplan Advances) as of a Settlement Date, then Agent shall, by no later than 12:00 p.m. on the Settlement Date, transfer in immediately available funds to a Deposit Account of such Australian Lender (as such Australian Lender may designate), an amount such that each such Australian Lender shall, upon receipt of such amount, have as of the Settlement Date, its Australian Pro Rata Share of the Australian Floorplan Loans (including Australian Floorplan Swing Loans and Extraordinary Floorplan Advances), (x) if the amount of the U.S. Floorplan Loans (including U.S. Floorplan Swing Loans and Extraordinary Floorplan Advances) made by an U.S. Lender that is not a Defaulting Lender exceeds such U.S. Lender’s U.S. Pro Rata Share of the U.S. Floorplan Loans (including U.S. Floorplan Swing Loans and Extraordinary Floorplan Advances) as of a Settlement Date, then Agent shall, by no later than 12:00 p.m. on the Settlement Date, transfer in immediately available funds to a Deposit Account of such U.S.
18 Lender (as such U.S. Lender may designate), an amount such that each such U.S. Lender shall, upon receipt of such amount, have as of the Settlement Date, its U.S. Pro Rata Share of the U.S. Floorplan Loans (including U.S. Floorplan Swing Loans and Extraordinary Floorplan Advances), (y) if the amount of the Australian Floorplan Loans (including Australian Floorplan Swing Loans and Extraordinary Floorplan Advances) made by an Australian Lender is less than such Australian Lender’s Pro Rata Share of the Australian Floorplan Loans (including Australian Floorplan Swing Loans and Extraordinary Floorplan Advances) as of a Settlement Date, such Australian Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds to Agent’s Account, an amount such that each such Australian Lender shall, upon transfer of such amount, have as of the Settlement Date, its Australian Pro Rata Share of the Australian Floorplan Loans (including Australian Floorplan Swing Loans and Extraordinary Floorplan Advances), and (z) if the amount of the U.S. Floorplan Loans (including U.S. Floorplan Swing Loans and Extraordinary Floorplan Advances) made by an U.S. Lender is less than such U.S. Lender’s Pro Rata Share of the U.S. Floorplan Loans (including U.S. Floorplan Swing Loans, and Extraordinary Floorplan Advances) as of a Settlement Date, such U.S. Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds to Agent’s Account, an amount such that each such U.S. Lender shall, upon transfer of such amount, have as of the Settlement Date, its U.S. Pro Rata Share of the U.S. Floorplan Loans (including U.S. Floorplan Swing Loans and Extraordinary Floorplan Advances). Such amounts made available to Agent under clauses (u), (v), (y) and (z) of the immediately preceding sentence shall be applied against the amounts of the applicable Swing Loans or Extraordinary Advances. If any such amount is not made available to Agent by any applicable Lender on the Settlement Date applicable thereto to the extent required by the terms hereof, Agent shall be entitled to recover for its account such amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate. (ii) In determining whether a Lender’s balance of the Revolver Loans (including U.S. Revolver Swing Loans and Extraordinary Revolver Advances) or the Floorplan Loans (including U.S. Floorplan Swing Loans and Extraordinary Floorplan Advances) is less than, equal to, or greater than such Lender’s Pro Rata Share of the Revolver Loans or Floorplan Loans, as applicable, as of a Settlement Date, Agent shall, as part of the relevant Settlement, apply to such balance the portion of payments actually received in good funds by Agent with respect to principal, interest, fees payable by Borrowers and allocable to the Lenders hereunder, and proceeds of Collateral. (iii) Between Settlement Dates, Agent, to the extent Extraordinary Advances for the account of Agent, or Swing Loans for the account of a U.S. Swing Lender, are outstanding, may pay over to Agent or a U.S. Swing Lender, as applicable, any payments or other amounts received by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the applicable Revolver Loans or the applicable Floorplan Loans, as applicable, for application to the applicable Extraordinary Advances or Swing Loans. Between Settlement Dates, Agent, to the extent no Extraordinary Advances or Swing Loans are outstanding, may pay over to a U.S. Swing Lender any payments or other amounts received by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the applicable Revolver Loans or the applicable Floorplan Loans, as applicable, for application to U.S. Revolver Swing Lender’s U.S. Pro Rata Share of the U.S. Revolver Loans, Australian Floorplan Swing Lender’s Australian Pro Rata Share of the Australian Floorplan Loans or U.S. Floorplan Swing Lender’s U.S. Pro Rata Share of the U.S. Floorplan Loans , as applicable. If, as of any Settlement Date, payments or other amounts of U.S. Borrowers or its Subsidiaries received since the then immediately preceding Settlement Date have been applied (A) to U.S. Revolver Swing Lender’s U.S. Pro Rata Share of the U.S. Revolver Loans other
20 required to be, but were not, paid by the Defaulting Lender, (C) third, to Issuing Bank, to the extent of the portion of a Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender, (D) fourth, to each Non-Defaulting Lender ratably in accordance with their Commitments (but in each case, only to the extent that such Defaulting Lender’s portion of a Revolver Loan or Floorplan Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (E) fifth, in Agent’s sole discretion, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrowers (upon the request of Borrowers and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Revolver Loans or Floorplan Loans (or other funding obligations) hereunder, and (F) sixth, from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (L) of Section 2.4(b)(iii) and Section 2.4(b)(iv). Subject to the foregoing, Agent may hold and, in its discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.10(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Xxxxxx’s Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 14.1(a)(i) through (iii). The provisions of this Section 2.3(g) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, Issuing Bank, and Borrowers shall have waived, in writing, the application of this Section 2.3(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.3(g)(ii) shall be released to Borrowers). The operation of this Section 2.3(g) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent, Issuing Bank, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrowers, at their option, upon written notice to Agent, to arrange for a substitute Xxxxxx to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Xxxxxx, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Xxxxxx (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.3(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.3(g) shall control and govern.
21 (ii) If any U.S. Swing Loan or Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then: (A) such Defaulting Lender’s Swing Loan Exposure and Letter of Credit Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all Non-Defaulting Lenders’ Revolver Loan Exposures plus such Defaulting Lender’s Revolver Swing Loan Exposure does not exceed the total of all Non-Defaulting Lenders’ Revolver Commitments, (y) the sum of all Non-Defaulting Lenders’ Floorplan Loan Exposure plus such Defaulting Lender’s Floorplan Swing Loan Exposure and Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders’ Floorplan Commitments and (z) the conditions set forth in Section 3.2 are satisfied at such time; (B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, Borrowers shall within one Business Day following notice by the Agent (x) first, prepay such Defaulting Lender’s Swing Loan Exposure (after giving effect to any partial reallocation pursuant to clause (A) above) and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Agent, for so long as such Letter of Credit Exposure is outstanding; provided, that no Borrower shall be obligated to cash collateralize any Defaulting Lender’s Letter of Credit Exposure if such Defaulting Lender is also the Issuing Bank; (C) if a Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.3(g)(ii), Borrowers shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section 2.6(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized; (D) to the extent the Letter of Credit Exposure of the Non- Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Letter of Credit Exposure; (E) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.3(g)(ii), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all Letter of Credit Fees that would have otherwise been payable to such Defaulting Lender under Section 2.6(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Issuing Bank until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized or reallocated; (F) so long as any Lender is a Defaulting Lender, the U.S. Revolver Swing Lender shall not be required to make any U.S. Revolver Swing Loan, the U.S. Floorplan Swing Lender shall not be required to make any U.S. Floorplan Swing Loan and the Issuing Bank shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender’s Pro Rata Share of such Swing Loans or Letter of Credit cannot be reallocated pursuant to this Section 2.3(g)(ii) or (y) the applicable U.S. Swing Lender or Issuing Bank, as applicable, has not otherwise entered into arrangements reasonably satisfactory to such U.S. Swing Lender or Issuing Bank, as applicable, and Borrowers to eliminate such U.S. Swing Lender’s or Issuing
24 (E) fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the U.S. Lenders under the Loan Documents, until paid in full, (F) sixth, ratably, to pay any fees or premiums then due to any of the U.S. Lenders under the Loan Documents until paid in full, (G) seventh, ratably, to pay interest accrued in respect of U.S. Floorplan Swing Loans and U.S. Revolver Swing Loans until paid in full, (H) eighth, ratably, to pay the principal of all U.S. Floorplan Swing Loans and U.S. Revolver Swing Loans until paid in full, (I) ninth, ratably, to pay interest accrued in respect of the U.S. Loans (other than Protective Advances) until paid in full, (J) tenth, ratably i. to pay the principal of all U.S. Revolver Loans and all U.S. Floorplan Loans until paid in full, ii. to Agent, to be held by Agent, for the benefit of Issuing Bank (and for the ratable benefit of each of the Lenders that have an obligation to pay to Agent, for the account of Issuing Bank, a share of each Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the U.S. Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Letter of Credit Disbursement as and when such disbursement occurs and, if a Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof), iii. up to the amount (after taking into account any amounts previously paid pursuant to this clause (iii) during the continuation of the applicable Application Event) of the most recently established Bank Product Reserve to (y) the Bank Product Providers based upon amounts then certified by the applicable Bank Product Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to such Bank Product Providers on account of Bank Product Obligations which constitute U.S. Obligations, and (z) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations which constitute U.S. Obligations owed to the applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof, (K) eleventh, ratably, to pay any other U.S. Obligations (including those under the Guaranty and Security Agreement) other than Obligations owed to Defaulting Lenders,
25 (L) twelfth, ratably, to pay any U.S. Obligations (including those under the Guaranty and Security Agreement) owed to Defaulting Lenders, and (M) thirteenth, to U.S. Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law. (iv) At any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all payments remitted to Agent and all proceeds of Australian Collateral received by Agent shall be applied as follows: (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents, in each case, with respect to Australian Obligations, until paid in full, (B) second, to pay any fees or premiums then due to Agent under the Loan Documents with respect to the Australian Obligations until paid in full, (C) third, ratably, to pay interest due in respect of all Australian Protective Floorplan Advances and Australian Protective Revolver Advances until paid in full, (D) fourth, ratably, to pay the principal of all of Australian Protective Floorplan Advances and Australian Protective Revolver Advances until paid in full, (E) fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Australian Lenders under the Loan Documents, until paid in full, (F) sixth, ratably, to pay any fees or premiums then due to any of the Australian Lenders under the Loan Documents until paid in full, (G) seventh, ratably, to pay interest accrued in respect of the Australian Revolver Loans and Australian Floorplan Loans (other than Protective Advances) until paid in full, (H) eighth, ratably i. to pay the principal of all Australian Revolver Loans and all Australian Floorplan Loans until paid in full, ii. to Agent, to be held by Agent, for the benefit of Issuing Bank (and for the ratable benefit of each of the Lenders that have an obligation to pay to Agent, for the account of Issuing Bank, a share of each Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Australian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Letter of Credit Disbursement as and when such disbursement occurs and, if a Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof), iii. up to the amount (after taking into account any amounts previously paid pursuant to this clause iii. during the continuation of the applicable Application Event)
26 of the most recently established Bank Product Reserve to (y) the Bank Product Providers based upon amounts then certified by the applicable Bank Product Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to such Bank Product Providers on account of Bank Product Obligations which constitute Australian Obligations, and (z) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations which constitute Australian Obligations owed to the applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iii), beginning with tier (A) hereof, (I) ninth, ratably, to pay any other Australian Obligations (including those under the Guaranty and Security Agreement) other than Obligations owed to Defaulting Lenders, (J) tenth, ratably, to pay any Australian Obligations (including those under the Guaranty and Security Agreement) owed to Defaulting Lenders, and (K) eleventh, to Australian Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law. (v) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(e). (vi) In each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(ii) shall not apply to any payment made by Borrowers to Agent and specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan Document. (vii) For purposes of Section 2.4(b)(iii) and Section 2.4(b)(iv), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency Proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. (viii) In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, if the conflict relates to the provisions of Section 2.3(g) and this Section 2.4, then the provisions of Section 2.3(g) shall control and govern, and if otherwise, then the terms and provisions of this Section 2.4 shall control and govern.
37 supports the obligations of Borrowers or their Subsidiaries in respect of (x) a lease of real property, or (y) an employment contract. (b) Issuing Bank shall have no obligation to issue a Letter of Credit if any of the following would result after giving effect to the requested issuance: (i) the U.S. Letter of Credit Usage would exceed the U.S. LC Subline, or (ii) the Australian Letter of Credit Usage would exceed the Australian LC Subline, or (iii) the U.S. Letter of Credit Usage would exceed the U.S. Maximum Revolver Amount less the outstanding amount of U.S. Revolver Loans (including U.S. Revolver Swing Loans), or (iv) the Australian Letter of Credit Usage would exceed the Australian Maximum Revolver Amount less the outstanding amount of Australian Revolver Loans, or (v) the U.S. Letter of Credit Usage would exceed the U.S. Revolver Borrowing Base at such time less the outstanding principal balance of U.S. Revolver Loans (inclusive of U.S. Revolver Swing Loans) at such time, or (vi) the Australian Letter of Credit Usage would exceed the Australian Revolver Borrowing Base at such time less the outstanding principal balance of Australian Revolver Loans at such time. (c) In the event there is a Defaulting Lender as of the date of any request for the issuance of a Letter of Credit, the Issuing Bank shall not be required to issue or arrange for such Letter of Credit to the extent (i) the Defaulting Lender’s Letter of Credit Exposure with respect to such Letter of Credit may not be reallocated pursuant to Section 2.3(g)(ii), or (ii) the Issuing Bank has not otherwise entered into arrangements reasonably satisfactory to it and Borrowers to eliminate the Issuing Bank’s risk with respect to the participation in such Letter of Credit of the Defaulting Lender, which arrangements may include Borrowers cash collateralizing such Defaulting Lender’s Letter of Credit Exposure in accordance with Section 2.3(g)(ii). Additionally, Issuing Bank shall have no obligation to issue a Letter of Credit if (A) any order, judgment, or decree of any Governmental Authority or arbitrator shall, by its terms, purport to enjoin or restrain Issuing Bank from issuing such Letter of Credit, or any law applicable to Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over Issuing Bank shall prohibit or request that Issuing Bank refrain from the issuance of letters of credit generally or such Letter of Credit in particular, (B) the issuance of such Letter of Credit would violate one or more policies of Issuing Bank applicable to letters of credit generally, or (C) if amounts demanded to be paid under any Letter of Credit will or may not be in United States Dollars. (d) Any Issuing Bank (other than Bank of America or any of its Affiliates) shall notify Agent in writing no later than the Business Day immediately following the Business Day on which such Issuing Bank issued any Letter of Credit; provided that (i) until Agent advises any such Issuing Bank that the provisions of Section 3.2 are not satisfied, or (ii) unless the aggregate amount of the Letters of Credit issued in any such week exceeds such amount as shall be agreed by Agent and such Issuing Bank, such Issuing Bank shall be required to so notify Agent in writing only once each
38 week of the Letters of Credit issued by such Issuing Bank during the immediately preceding week as well as the daily amounts outstanding for the prior week, such notice to be furnished on such day of the week as Agent and such Issuing Bank may agree. Borrowers and the Lender Group hereby acknowledge and agree that all Existing Letters of Credit shall constitute Letters of Credit under this Agreement on and after the Closing Date with the same effect as if such Existing Letters of Credit were issued by Issuing Bank at the request of Borrowers on the Closing Date. Each Letter of Credit shall be in form and substance reasonably acceptable to Issuing Bank, including the requirement that the amounts payable thereunder must be payable in Dollars. If Issuing Bank makes a payment under a Letter of Credit, the applicable Borrowers shall pay to Agent an amount equal to the applicable Letter of Credit Disbursement on the Business Day such Letter of Credit Disbursement is made and, in the absence of such payment, the amount of the Letter of Credit Disbursement immediately and automatically shall be deemed to be a U.S. Revolver Loan or Australian Revolver Loan (as applicable) hereunder (notwithstanding any failure to satisfy any condition precedent set forth in Section 3) and, initially, shall bear interest at the rate then applicable to Revolver Loans that are U.S. Base Rate Loans or Australian Base Rate Loans, as applicable. If a Letter of Credit Disbursement is deemed to be a Revolver Loan hereunder, the applicable Borrowers’ obligation to pay the amount of such Letter of Credit Disbursement to Issuing Bank shall be automatically converted into an obligation to pay the resulting applicable Revolver Loan. Promptly following receipt by Agent of any payment from Borrowers pursuant to this paragraph, Agent shall distribute such payment to Issuing Bank or, to the extent that Revolver Lenders have made payments pursuant to Section 2.11(e) to reimburse Issuing Bank, then to Revolver Lenders and Issuing Bank as their interests may appear. (e) Promptly following receipt of a notice of a Letter of Credit Disbursement pursuant to Section 2.11(d), each Revolver Lender agrees to fund its Pro Rata Share of any Revolver Loan deemed made pursuant to Section 2.11(d) on the same terms and conditions as if Borrowers had requested the amount thereof as a Revolver Loan and Agent shall promptly pay to Issuing Bank the amounts so received by it from the Revolver Lenders. By the issuance of a Letter of Credit (or an amendment, renewal, or extension of a Letter of Credit) and without any further action on the part of Issuing Bank or the Revolver Lenders, Issuing Bank shall be deemed to have granted to each U.S. Revolver Lender or Australian revolver Lender (as applicable), and each U.S. Revolver Lender or Australian revolver Lender (as applicable)shall be deemed to have purchased, a participation in each applicable Letter of Credit issued by Issuing Bank, in an amount equal to its Pro Rata Share of such Letter of Credit, and each such Revolver Xxxxxx agrees to pay to Agent, for the account of Issuing Bank, such Revolver Lender’s Pro Rata Share of any Letter of Credit Disbursement made by Issuing Bank under the applicable Letter of Credit. In consideration and in furtherance of the foregoing, each Revolver Lender hereby absolutely and unconditionally agrees to pay to Agent, for the account of Issuing Bank, such Revolver Lender’s Pro Rata Share of each Letter of Credit Disbursement made by Issuing Bank and not reimbursed by Borrowers on the date due as provided in Section 2.11(d), or of any reimbursement payment that is required to be refunded (or that Agent or Issuing Bank elects, based upon the advice of counsel, to refund) to Borrowers for any reason. Each Revolver Lender acknowledges and agrees that its obligation to deliver to Agent, for the account of Issuing Bank, an amount equal to its respective Pro Rata Share of each Letter of Credit Disbursement pursuant to this Section 2.11(e) shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to satisfy any condition set forth in Section 3. If any such Revolver Lender fails to make available to Agent the amount of such Revolver Lender’s Pro Rata Share of a Letter of Credit Disbursement as provided in this Section, such Revolver Lender shall be deemed to be a Defaulting Lender and Agent (for the account of Issuing Bank) shall be entitled to recover such amount on demand from such Revolver Lender together with interest thereon at the Defaulting Lender Rate until paid in full.
39 (f) Each Borrower agrees to indemnify, defend and hold harmless each member of the Lender Group (including Issuing Bank and its branches, Affiliates, and correspondents) and each such Person’s respective directors, officers, employees, attorneys and agents (each, including Issuing Bank, a “Letter of Credit Related Person”) (to the fullest extent permitted by law) from and against any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable fees and disbursements of attorneys, experts, or consultants and all other costs and expenses actually incurred in connection therewith or in connection with the enforcement of this indemnification (as and when they are incurred and irrespective of whether suit is brought), which may be incurred by or awarded against any such Letter of Credit Related Person (other than Taxes, which shall be governed by Section 16) (the “Letter of Credit Indemnified Costs”), and which arise out of or in connection with, or as a result of: (i) any Letter of Credit or any pre-advice of its issuance; (ii) any transfer, sale, delivery, surrender or endorsement of any Drawing Document at any time(s) held by any such Letter of Credit Related Person in connection with any Letter of Credit; (iii) any action or proceeding arising out of, or in connection with, any Letter of Credit (whether administrative, judicial or in connection with arbitration), including any action or proceeding to compel or restrain any presentation or payment under any Letter of Credit, or for the wrongful dishonor of, or honoring a presentation under, any Letter of Credit; (iv) any independent undertakings issued by the beneficiary of any Letter of Credit; (v) any unauthorized instruction or request made to Issuing Bank in connection with any Letter of Credit or requested Letter of Credit or error in computer or electronic transmission; (vi) an adviser, confirmer or other nominated person seeking to be reimbursed, indemnified or compensated; (vii) any third party seeking to enforce the rights of an applicant, beneficiary, nominated person, transferee, assignee of Letter of Credit proceeds or holder of an instrument or document; (viii) the fraud, forgery or illegal action of parties other than the Letter of Credit Related Person; (ix) Issuing Bank’s performance of the obligations of a confirming institution or entity that wrongfully dishonors a confirmation; or (x) the acts or omissions, whether rightful or wrongful, of any present or future de jure or de facto governmental or regulatory authority or cause or event beyond the control of the Letter of Credit Related Person; in each case, including that resulting from the Letter of Credit Related Person’s own negligence; provided, however, that such indemnity shall not be available to any Letter of Credit Related Person claiming indemnification under clauses (i) through (x) above to the extent that such Letter of Credit
40 Indemnified Costs may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of the Letter of Credit Related Person claiming indemnity. Each Borrower hereby agrees to pay the Letter of Credit Related Person claiming indemnity on demand from time to time all amounts owing under this Section 2.11(f). If and to the extent that the obligations of Borrowers under this Section 2.11(f) are unenforceable for any reason, each Borrower agrees to make the maximum contribution to the Letter of Credit Indemnified Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit. (g) The liability of Issuing Bank (or any other Letter of Credit Related Person) under, in connection with or arising out of any Letter of Credit (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages suffered by the applicable Borrower that are caused directly by Issuing Bank’s gross negligence or willful misconduct in (i) honoring a presentation under a Letter of Credit that on its face does not at least substantially comply with the terms and conditions of such Letter of Credit, (ii) failing to honor a presentation under a Letter of Credit that strictly complies with the terms and conditions of such Letter of Credit or (iii) retaining Drawing Documents presented under a Letter of Credit. Issuing Bank shall be deemed to have acted with due diligence and reasonable care if Issuing Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. Borrowers’ aggregate remedies against Issuing Bank and any Letter of Credit Related Person for wrongfully honoring a presentation under any Letter of Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by Borrowers to Issuing Bank in respect of the honored presentation in connection with such Letter of Credit under Section 2.11(d), plus interest at the rate then applicable to U.S. Base Rate Loans and Australian Base Rate Loans hereunder, as applicable. Borrowers shall take action to avoid and mitigate the amount of any damages claimed against Issuing Bank or any other Letter of Credit Related Person, including by enforcing its rights against the beneficiaries of the Letters of Credit. Any claim by Borrowers under or in connection with any Letter of Credit shall be reduced by an amount equal to the sum of (x) the amount (if any) saved by Borrowers as a result of the breach or alleged wrongful conduct complained of; and (y) the amount (if any) of the loss that would have been avoided had Borrowers taken all reasonable steps to mitigate any loss, and in case of a claim of wrongful dishonor, by specifically and timely authorizing Issuing Bank to effect a cure. (h) Borrowers are responsible for preparing or approving the final text of the Letter of Credit as issued by Issuing Bank, irrespective of any assistance Issuing Bank may provide such as drafting or recommending text or by Issuing Bank’s use or refusal to use text submitted by Borrowers. Borrowers are solely responsible for the suitability of the Letter of Credit for Borrowers’ purposes. With respect to any Letter of Credit containing an “automatic amendment” to extend the expiration date of such Letter of Credit, Issuing Bank, in its sole and absolute discretion, may give notice of nonrenewal of such Letter of Credit and, if Borrowers do not at any time want such Letter of Credit to be renewed, Borrowers will so notify Agent and Issuing Bank at least 15 calendar days before Issuing Bank is required to notify the beneficiary of such Letter of Credit or any advising bank of such nonrenewal pursuant to the terms of such Letter of Credit. (i) Borrowers’ reimbursement and payment obligations under this Section 2.11 are absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including:
41 (i) any lack of validity, enforceability or legal effect of any Letter of Credit or this Agreement or any term or provision therein or herein; (ii) payment against presentation of any draft, demand or claim for payment under any Drawing Document that does not comply in whole or in part with the terms of the applicable Letter of Credit or which proves to be fraudulent, forged or invalid in any respect or any statement therein being untrue or inaccurate in any respect, or which is signed, issued or presented by a Person or a transferee of such Person purporting to be a successor or transferee of the beneficiary of such Letter of Credit; (iii) Issuing Bank or any of its branches or Affiliates being the beneficiary of any Letter of Credit; (iv) Issuing Bank or any correspondent honoring a drawing against a Drawing Document up to the amount available under any Letter of Credit even if such Drawing Document claims an amount in excess of the amount available under the Letter of Credit; (v) the existence of any claim, set-off, defense or other right that any Borrower or any other Person may have at any time against any beneficiary, any assignee of proceeds, Issuing Bank or any other Person; (vi) any other event, circumstance or conduct whatsoever, whether or not similar to any of the foregoing that might, but for this Section 2.11(i), constitute a legal or equitable defense to or discharge of, or provide a right of set-off against, Xxxxxxxxx’ reimbursement and other payment obligations and liabilities, arising under, or in connection with, any Letter of Credit, whether against Issuing Bank, the beneficiary or any other Person; or (vii) the fact that any Default or Event of Default shall have occurred and be continuing; provided, however, that subject to Section 2.11(g) above, the foregoing shall not release Issuing Bank from such liability to any Borrower as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against Issuing Bank following reimbursement or payment of the obligations and liabilities, including reimbursement and other payment obligations, of any Borrower to Issuing Bank arising under, or in connection with, this Section 2.11 or any Letter of Credit. (j) Without limiting any other provision of this Agreement, Issuing Bank and each other Letter of Credit Related Person (if applicable) shall not be responsible to any Borrower for, and Issuing Bank’s rights and remedies against any Borrower and the obligation of each Borrower to reimburse Issuing Bank for each drawing under each Letter of Credit shall not be impaired by: (i) honor of a presentation under any Letter of Credit that on its face substantially complies with the terms and conditions of such Letter of Credit, even if the Letter of Credit requires strict compliance by the beneficiary; (ii) honor of a presentation of any Drawing Document that appears on its face to have been signed, presented or issued (A) by any purported successor or transferee of any beneficiary or other Person required to sign, present or issue such Drawing Document or (B) under a new name of the beneficiary;
42 (iii) acceptance as a draft of any written or electronic demand or request for payment under a Letter of Credit, even if nonnegotiable or not in the form of a draft or notwithstanding any requirement that such draft, demand or request bear any or adequate reference to the Letter of Credit; (iv) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other than Issuing Bank’s determination that such Drawing Document appears on its face substantially to comply with the terms and conditions of the Letter of Credit); (v) acting upon any instruction or request relative to a Letter of Credit or requested Letter of Credit that Issuing Bank in good faith believes to have been given by a Person authorized to give such instruction or request; (vi) any errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent or transmitted) or for errors in interpretation of technical terms or in translation or any delay in giving or failing to give notice to Borrowers; (vii) any acts, omissions or fraud by, or the insolvency of, any beneficiary, any nominated person or entity or any other Person or any breach of contract between the beneficiary and Borrowers or any of the parties to the underlying transaction to which the Letter of Credit relates; (viii) assertion or waiver of any provision of the ISP or UCP that primarily benefits an issuer of a letter of credit, including any requirement that any Drawing Document be presented to it at a particular hour or place; (ix) payment to any paying or negotiating bank (designated or permitted by the terms of the applicable Letter of Credit) claiming that it rightfully honored or is entitled to reimbursement or indemnity under Standard Letter of Credit Practice applicable to it; (x) acting or failing to act as required or permitted under Standard Letter of Credit Practice applicable to where Issuing Bank has issued, confirmed, advised or negotiated such Letter of Credit, as the case may be; (xi) honor of a presentation after the expiration date of any Letter of Credit notwithstanding that a presentation was made prior to such expiration date and dishonored by Issuing Bank if subsequently Issuing Bank or any court or other finder of fact determines such presentation should have been honored; (xii) dishonor of any presentation that does not strictly comply or that is fraudulent, forged or otherwise not entitled to honor; or (xiii) honor of a presentation that is subsequently determined by Issuing Bank to have been made in violation of international, federal, state or local restrictions on the transaction of business with certain prohibited Persons. (k) U.S. Borrowers and Australian Borrowers (as applicable) shall pay immediately upon demand to Agent for the account of Issuing Bank as non-refundable fees, commissions, and charges (it being acknowledged and agreed that any charging of such fees,
43 commissions and charges to the Loan Account pursuant to the provisions of Section 2.6(d) shall be deemed to constitute a demand for payment thereof for the purposes of this Section 2.11(k)): (i) a fronting fee which shall be imposed by Issuing Bank upon the issuance of each Letter of Credit of 0.125% per annum of the face amount thereof, plus (ii) any and all other customary commissions, fees and charges then in effect imposed by, and any and all expenses incurred by, Issuing Bank, or by any adviser, confirming institution or entity or other nominated person, relating to Letters of Credit, at the time of issuance of any Letter of Credit and upon the occurrence of any other activity with respect to any Letter of Credit (including transfers, assignments of proceeds, amendments, drawings, renewals or cancellations). Notwithstanding the foregoing, if Issuing Bank is a person other than Bank of America, all fronting fees payable in respect of Letters of Credit issued by such Issuing Bank shall be paid by U.S. Borrowers or Australian Borrowers (as applicable) immediately upon demand directly to such Issuing Bank for its own account. (l) If by reason of (x) any Change in Law, or (y) compliance by Issuing Bank or any other member of the Lender Group with any direction, request, or requirement (irrespective of whether having the force of law) of any Governmental Authority or monetary authority including, Regulation D of the Board of Governors as from time to time in effect (and any successor thereto): (i) any reserve, deposit, or similar requirement is or shall be imposed or modified in respect of any Letter of Credit issued or caused to be issued hereunder or hereby, or (ii) there shall be imposed on Issuing Bank or any other member of the Lender Group any other condition regarding any Letter of Credit, and the result of the foregoing is to increase, directly or indirectly, the cost to Issuing Bank or any other member of the Lender Group of issuing, making, participating in, or maintaining any Letter of Credit or to reduce the amount receivable in respect thereof, then, and in any such case, Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify Borrowers, and Borrowers shall pay within 30 days after demand therefor, such amounts as Agent may specify to be necessary to compensate Issuing Bank or any other member of the Lender Group for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to U.S. Base Rate Loans or Australian Base Rate Loans hereunder, as applicable; provided, that (A) Borrowers shall not be required to provide any compensation pursuant to this Section 2.11(1) for any such amounts incurred more than 180 days prior to the date on which the demand for payment of such amounts is first made to Borrowers, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. The determination by Agent of any amount due pursuant to this Section 2.11(l), as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto. (m) Unless otherwise expressly agreed by Issuing Bank and Borrowers when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. (n) In the event of a direct conflict between the provisions of this Section 2.11 and any provision contained in any Issuer Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each
45 (ii) Each SOFR Notice and Bill Rate Notice shall be irrevocable and binding on Borrowers. In connection with each U.S. SOFR Rate Loan and Australian Bill Rate Loan, Borrowers shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense actually incurred by Agent or any Lender as a result of (A) the payment of any principal of any U.S. SOFR Rate Loan or Australian Bill Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (B) the conversion of any U.S. SOFR Rate Loan or Australian Bill Rate Loan other than on the last day of the Interest Period applicable thereto, (C) the failure to borrow, convert, continue or prepay any U.S. SOFR Rate Loan or Australian Bill Rate Loan on the date specified in any SOFR Notice or Bill Rate Notice delivered pursuant hereto, or (D) any assignments made pursuant to Sections 2.3(g)(i), 2.13(b) or 14.2 (such losses, costs, or expenses, “Funding Losses”). A certificate of Agent or a Lender delivered to Borrowers setting forth in reasonable detail any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.12 shall be conclusive absent manifest error. Borrowers shall pay such amount to Agent or the Lender, as applicable, within 30 days of the date of its receipt of such certificate. (iii) Unless Agent, in its sole discretion, agrees otherwise, Borrowers shall have not more than 5 SOFR Rate Loans and 3 Australian Bill Rate Loans in effect at any given time. Borrowers only may exercise the SOFR Option for proposed U.S. SOFR Rate Loans and Bill Rate Option for proposed Australian Bill Rate Loans of at least $1,000,000. (iv) Notwithstanding anything contained herein to the contrary, (1) so long as Borrowers have not received a notice from Agent (which notice Agent may elect to give or not give in its discretion unless Agent is directed to give such notice by the applicable Required Lenders, in which case, it shall give the notice to Borrowers), after the occurrence and during the continuance of an Event of Default, to terminate the applicability of this Section 2.12(b)(iv), Borrowers shall be deemed to have elected that all U.S. Revolver Loans and U.S. Floorplan Loans (including Swing Loans, but excluding (A) Extraordinary Advances and (B) U.S. Revolver Loans and U.S. Floorplan Loans that U.S. Borrowers have affirmatively elected to be U.S. Base Rate Loans or U.S. SOFR Rate Loans in accordance with the provisions of this Agreement) outstanding during each month shall automatically constitute Loans bearing interest at Term SOFR with an Interest Period of 1 month commencing on the first day of such month (all such Loans accruing interest as set forth in this Section 2.12(b)(iv), “Floating U.S. SOFR Rate Loans”) and (2) interest in respect of Floating U.S. SOFR Rate Loans shall be due and payable, in arrears, on the first day of each month. For the sake of clarity, Floating U.S. SOFR Rate Loans shall constitute U.S. SOFR Rate Loans for all purposes of this agreement (including, without limitation, Section 2.6), provided that (x) Borrowers shall not be required to request Floating U.S. SOFR Rate Loans 3 Business Days prior to the Funding Date thereof, (y) Borrowers shall not be required to exercise the SOFR Option with respect to Floating U.S. SOFR Rate Loans, and (z) the requirements in respect of U.S. SOFR Rate Loans set forth in Section 2.12(b)(iii) shall not apply to Floating U.S. SOFR Rate Loans. (c) Conversion. Borrowers may convert U.S. SOFR Rate Loans to U.S. Base Rate Loans at any time and convert Australian Bill Rate Loans to Australian Base Rate Loans at any time; provided, that in the event that U.S. SOFR Rate Loans or Australian Bill Rate Loans are converted or prepaid on any date that is not the last day of the Interest Period applicable thereto, including as a result of any prepayment through the required application by Agent of any payments or proceeds of Collateral in accordance with Section 2.4(b) or for any other reason, including early termination of the term of this Agreement or acceleration of all or any portion of the Obligations pursuant to the terms hereof, Borrowers shall indemnify, defend, and hold Agent and the Lenders and their Participants harmless against any and all Funding Losses in accordance with Section 2.12 (b)(ii).
49 effect, then in each case, Agent and U.S. Borrowers may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section at the end of any Interest Period, relevant interest payment date or payment period for interest calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for such alternative benchmarks in similar U.S. dollar denominated syndicated credit facilities syndicated and agented in the United States and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for such benchmarks in similar U.S. dollar denominated credit facilities syndicated and agented in the United States, which adjustment or method for calculating such adjustment shall be published on an information service selected by Agent from time to time in its discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a Successor Rate. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after Agent posts such proposed amendment to all Lenders and U.S. Borrowers unless, prior to such time, U.S. Required Lenders deliver to Agent written notice that U.S. Required Lenders object to the amendment. (ii) Notwithstanding anything to the contrary in any Loan Document, if Agent determines (which determination shall be conclusive absent manifest error), or Borrower Agent or Australian Required Lenders notify Agent (with, in the case of the Australian Required Lenders, a copy to Borrower Agent) that Australian Borrowers or Australian Required Lenders (as applicable) have determined, that: (A) adequate and reasonable means do not exist for ascertaining one, three and six month interest periods of the Australian Bill Rate, including because the applicable Reuters screen rate is not available or published on a current basis, and such circumstances are unlikely to be temporary; or (B) Reuters or any successor administrator of the applicable screen rate or a Governmental Authority having jurisdiction over Agent, has made a public statement identifying a specific date after which one, three and six month interest periods of the Australian Bill Rate shall or will no longer be made available or permitted to be used for determining the interest rate of Australian dollar denominated syndicated loans, or shall or will otherwise cease, provided, that at the time of such statement, there is no successor administrator satisfactory to Agent that will continue to provide such interest periods of Australian Bill Rate after such specific date (the latest date on which one, three and six month interest periods of the Australian Bill Rate are no longer available permanently or indefinitely, “Scheduled Australian Bill Rate Unavailability Date”); then, on a date and time determined by Agent (any such date, “Australian Bill Rate Replacement Date”), which date shall be at the end of an Interest Period or on the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (b) above, no later than the Scheduled Australian Bill Rate Unavailability Date, Agent and Australian Borrowers may amend this Agreement solely for the purpose of replacing the Australian Bill Rate hereunder and under any other applicable Loan Document with an alternative benchmark rate giving due consideration to any evolving or then existing convention for such alternative benchmarks in similar Australian dollar denominated syndicated credit facilities syndicated and agented in the United States and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for such benchmarks in similar Australian dollar denominated credit facilities syndicated and agented in the United States, which adjustment or method for calculating such adjustment shall be published on an information service selected by Agent from time
51 (i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party, (ii) each of the conditions precedent set forth in Section 3.2 are satisfied, (iii) Borrowers shall have delivered to Agent and Lenders a certificate dated as of the date of such Increase certifying that such Increase and the related incurrence of Indebtedness (assuming, for purposes of such certification, that the commitments related to such Increase are fully drawn) are permitted under the terms of the documents evidencing the DLL Floorplan Indebtedness, the CNH Floorplan Indebtedness and any other Indebtedness of the Loan Parties involving an aggregate amount of $10,000,000 or more, and (iv) Borrowers shall have reached agreement with the Lenders (or prospective lenders) agreeing to the increased Australian Revolver Commitments, U.S. Revolver Commitments, Australian Floorplan Commitments or increased U.S. Floorplan Commitments with respect to the interest margins applicable to Australian Revolver Loans or U.S. Revolver Loans to be made pursuant to the increased Australian Revolver Commitments, U.S. Revolver Commitments, Australian Floorplan Loans or U.S. Floorplan Loans to be made pursuant to the increased Australian Floorplan Commitments or U.S. Floorplan Commitments (which interest margins may be (A) with respect to Australian Revolver Loans or U.S. Revolver Loans made pursuant to the increased Australian Revolver Commitments or U.S. Revolver Commitments, higher than or equal to the interest margins applicable to Australian Revolver Commitments or U.S. Revolver Commitments set forth in this Agreement immediately prior to the date of the increased Australian Revolver Commitments or U.S. Revolver Commitments, and (B) with respect to Australian Floorplan Loans and U.S. Floorplan Loans made pursuant to the increased Australian Floorplan Commitments or U.S. Floorplan Commitments, higher than or equal to the interest margins applicable to Australian Floorplan Loans or U.S. Floorplan Loans set forth in this Agreement immediately prior to the date of the increased Australian Floorplan Commitments or U.S. Floorplan Commitments, as applicable (the date of the effectiveness of the increased Australian Revolver Commitments, U.S. Revolver Commitments, Australian Maximum Revolver Amount and the U.S. Maximum Revolver Amount or the increased Australian Floorplan Commitments, U.S. Floorplan Commitments, Australian Maximum Floorplan Amount and the U.S. Maximum Floorplan Amount, as applicable, the “Increase Date”)) and shall have communicated the amount of such interest margins to Agent. Any Increase Joinder may, with the consent of Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.14 (including any amendment necessary to effectuate the interest margins for the U.S. Revolver Loans and Australian Revolver Loans to be made pursuant to the increased U.S. Revolver Commitments, Australian Revolver Commitments, Australian Floorplan Loans or the U.S. Floorplan Loans to be made pursuant to the increased U.S. Floorplan Commitments and Australian Floorplan Commitments, as applicable). Anything to the contrary contained herein notwithstanding, if the interest margin that is to be applicable to the U.S. Revolver Loans and/or Australian Revolver Loans, as applicable, to be made pursuant to the increased U.S. Revolver Commitments and/or Australian Revolver Commitments, as applicable, or the U.S. Floorplan Loans and/or Australian Floorplan Loans, as applicable, to be made pursuant to the increased U.S. Floorplan Commitments and/or Australian Floorplan Commitments, as applicable, (as the case may be) are higher than the interest margin applicable to the U.S. Revolver Loans, Australian Revolver
52 Loans, U.S. Floorplan Loans or the Australian Floorplan Loans hereunder (as applicable) immediately prior to the applicable Increase Date (the amount by which the interest margin is higher, the “Excess”), then the interest margin applicable to the U.S. Revolver Loans, Australian Revolver Loans, U.S. Floorplan Loans or the Australian Floorplan Loans (as the case may be) immediately prior to the Increase Date shall be increased by the amount of the Excess, effective on the applicable Increase Date, and without the necessity of any action by any party hereto. (c) Unless otherwise specifically provided herein, (i) all references in this Agreement and any other Loan Document to U.S. Revolver Loans and/or Australian Revolver Loans, as applicable, shall be deemed, unless the context otherwise requires, to include U.S. Revolver Loans and/or Australian Revolver Loans, as applicable, made pursuant to the increased U.S. Revolver Commitments, Australian Revolver Commitments, U.S. Maximum Revolver Amount, and Australian Maximum Revolver Amount, as applicable, pursuant to this Section 2.14, and (ii) all references in this Agreement and any other Loan Document to U.S. Floorplan Loans and/or Australian Floorplan Loans shall be deemed, unless the context otherwise requires, to include U.S. Floorplan Loans and/or Australian Floorplan Loans, as applicable, made pursuant to the increased U.S. Floorplan Commitments, Australian Floorplan Commitments, U.S. Maximum Floorplan Amount and Australian Maximum Floorplan Amount pursuant to this Section 2.14. (d) Each of the Lenders having a U.S. Commitment and/or Australian Commitment, as applicable, prior to the Increase Date (the “Pre-Increase Lenders”) shall assign to any Lender which is acquiring a new or additional U.S. Commitment and/or Australian Commitment, as applicable, on the Increase Date (the “Post-Increase Lenders”), and such Post-Increase Lenders shall purchase from each Pre-Increase Lender, at the principal amount thereof, such interests in the U.S. Revolver Loans, Australian Revolver Loans, U.S. Floorplan Loans and the Australian Floorplan Loans, as applicable, on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, (i) such U.S. Revolver Loans, Australian Revolver Loans, U.S. Floorplan Loans and the Australian Floorplan Loans, as applicable, will be held by Pre-Increase Lenders and Post-Increase Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased U.S. Commitments and/or Australian Commitments, as applicable, and (ii) each Lender shall hold equal Pro Rata Shares of (x) the U.S. Revolver Commitments (and U.S. Revolver Loans) and the U.S. Floorplan Commitments (and U.S. Floorplan Loans), (y) the Australian Revolver Commitments (and Australian Revolver Loans) and the Australian Floorplan Commitments (and Australian Floorplan Loans), and (z) the U.S. Revolver Commitments and the Australian Revolver Commitments (and U.S. Revolver Loans and the Australian Revolver Commitments), the U.S. Floorplan Commitments and the Australian Floorplan Commitments (and the U.S. Floorplan Loans and the Australian Floorplan Loans). (e) The U.S. Revolver Loans, Australian Revolver Loans, U.S. Revolver Commitments, Australian Revolver Commitments, the U.S. Maximum Revolver Amount and the Australian Maximum Revolver Amount, as applicable, established pursuant to this Section 2.14 shall constitute U.S. Revolver Loans, Australian Revolver Loans, U.S. Revolver Commitments, Australian Revolver Commitments, the U.S. Maximum Revolver Amount and Australian Maximum Revolver Amount, as applicable, under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. The U.S. Floorplan Loans, Australian Floorplan Loans, U.S. Floorplan Commitments, Australian Floorplan Commitments, U.S. Maximum Floorplan Amount and Australian Maximum Floorplan Amount, as applicable, established pursuant to this Section 2.14 shall constitute U.S. Floorplan Loans, Australian Floorplan Loans, U.S.
54 (ii) each of the conditions precedent set forth in Section 3.2 are satisfied, (iii) U.S. Borrowers shall have delivered to Agent and Lenders a certificate dated as of the date of such Additional Increase certifying that such Additional Increase and the related incurrence of Indebtedness (assuming, for purposes of such certification, that the commitments related to such Additional Increase are fully drawn) are permitted under the terms of the documents evidencing the CNH Floorplan Indebtedness and any other Indebtedness of the Loan Parties involving an aggregate amount of $10,000,000 or more, and (iv) U.S. Borrowers shall have reached agreement with the U.S. Lenders (or prospective lenders) agreeing to the increased U.S. Revolver Commitments or increased U.S. Floorplan Commitments with respect to the interest margins applicable to U.S. Revolver Loans to be made pursuant to the increased U.S. Revolver Commitments or U.S. Floorplan Loans to be made pursuant to the increased U.S. Floorplan Commitments (which interest margins may be (A) with respect to U.S. Revolver Loans made pursuant to the increased U.S. Revolver Commitments, higher than or equal to the interest margins applicable to U.S. Revolver Loans set forth in this Agreement immediately prior to the date of the increased U.S. Revolver Commitments, and (B) with respect to U.S. Floorplan Loans made pursuant to the increased U.S. Floorplan Commitments, higher than or equal to the interest margins applicable to U.S. Floorplan Loans set forth in this Agreement immediately prior to the date of the increased U.S. Floorplan Commitments, as applicable (the date of the effectiveness of the increased U.S. Revolver Commitments and the U.S. Maximum Revolver Amount or the increased U.S. Floorplan Commitments and the U.S. Maximum Floorplan Amount, as applicable, the “Additional Increase Date”)) and shall have communicated the amount of such interest margins to Agent. Any Increase Joinder may, with the consent of Agent, U.S. Borrowers and the U.S. Lenders or prospective lenders agreeing to the proposed Additional Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.15 (including any amendment necessary to effectuate the interest margins for the Revolver Loans to be made pursuant to the increased U.S. Revolver Commitments or the U.S. Floorplan Loans to be made pursuant to the increased U.S. Floorplan Commitments). Anything to the contrary contained herein notwithstanding, if the interest margin that is to be applicable to the U.S. Revolver Loans to be made pursuant to the increased U.S. Revolver Commitments or the U.S. Floorplan Loans to be made pursuant to the increased U.S. Floorplan Commitments (as the case may be) are higher than the interest margin applicable to the U.S. Revolver Loans or the U.S. Floorplan Loans hereunder (as applicable) immediately prior to the applicable Increase Date (the amount by which the interest margin is higher, the “Additional Increase Excess”), then the interest margin applicable to the U.S. Revolver Loans or the U.S. Floorplan Loans (as the case may be) immediately prior to the Additional Increase Date shall be increased by the amount of the Additional Increase Excess, effective on the applicable Additional Increase Date, and without the necessity of any action by any party hereto. (c) Unless otherwise specifically provided herein, (i) all references in this Agreement and any other Loan Document to U.S. Revolver Loans shall be deemed, unless the context otherwise requires, to include U.S. Revolver Loans made pursuant to the increased U.S. Revolver Commitments and U.S. Maximum Revolver Amount pursuant to this Section 2.15, and (ii) all references in this Agreement and any other Loan Document to U.S. Floorplan Loans shall be deemed, unless the context otherwise requires, to include U.S. Floorplan Loans made pursuant to the increased U.S. Floorplan Commitments and U.S. Maximum Floorplan Amount pursuant to this Section 2.15.
56 (b) no Default or Event of Default shall have occurred and be continuing on the date of such extension of credit, nor shall either result from the making thereof. Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, U.S. Borrowers shall be permitted to borrow U.S. Revolver Loans and U.S. Floorplan Loans on the last day of each fiscal quarter of U.S. Borrowers in an amount in excess of its anticipated cash needs in the ordinary course of business (each such Borrowing, a “Quarter End Borrowing” for purposes of determining Adjusted Excess Availability), in each case so long as each of the following conditions are satisfied (it being understood that the failure to satisfy (A) any of the following conditions at any time shall immediately disqualify such Loans as a Quarter End Borrowing for purposes of determining Adjusted Excess Availability and (B) the condition set forth in clause (iv) below shall constitute an immediate Event of Default under this Agreement): (i) all conditions precedent set forth in this Section 3.2 have been satisfied with respect to such Quarter End Borrowing; (ii) all conditions precedent set forth in this Section 3.2 have been satisfied with respect to such Quarter End Borrowing the amount of such Quarter End Borrowing is within U.S. Borrowers’ borrowing capacity for U.S. Revolver Loans under Section 2.1 and/or U.S. Floorplan Loans under Section 2.2, as applicable, in each case as evidenced by the then applicable U.S. Revolver Borrowing Base Certificate and/or U.S. Floorplan Borrowing Base Certificate, as applicable; (iii) the proceeds of such Quarter End Borrowing are placed into a Deposit Account maintained with Bank of America, which Deposit Account is the subject of the Control Agreement that provides Agent with springing control over such Deposit Account upon a Triggering Event, it being agreed and understood that if Agent has exercised control, U.S. Borrowers shall have no access to such Deposit Account maintaining proceeds of any Quarter End Borrowing while such funds are maintained in such Deposit Account; and (iv) at all times that any Quarter End Borrowing is outstanding, Excess Availability is greater than $25,000,000. 3.3 Maturity. This Agreement shall continue in full force and effect for a term ending on the Maturity Date. 3.4 Effect of Maturity. On the Maturity Date, all commitments of the Lender Group to provide additional credit hereunder shall automatically be terminated and all of the Obligations immediately shall become due and payable without notice or demand and Borrowers shall be required to repay all of the Obligations in full. No termination of the obligations of the Lender Group (other than payment in full of the Obligations and termination of the Commitments) shall relieve or discharge any Loan Party of its duties, obligations, or covenants hereunder or under any other Loan Document and Agent’s and Australian Security Trustee’s Liens in the Collateral shall continue to secure the Obligations and shall remain in effect until all Obligations have been paid in full and the Commitments have been terminated. When all of the Obligations have been paid in full and the Lender Group’s obligations to provide additional credit under the Loan Documents have been terminated irrevocably, Agent will, at Borrowers’ sole expense, execute and deliver any termination statements, lien releases, discharges of security interests, and other similar discharge or release documents (and, if applicable, in recordable form) as are reasonably necessary to release, as of record, Agent’s and Australian Security Trustee’s Liens and all notices of security interests and liens previously filed by Agent.
81 deemed to have been given at the opening of business on the next Business Day for the recipient) and (c) notices by electronic mail shall be deemed received 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). 12 CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION. (a) SUBJECT TO SECTION 15.21, THE VALIDITY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT), THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF AND THEREOF, THE RIGHTS OF THE PARTIES HERETO AND THERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO, AND ANY CLAIMS, CONTROVERSIES OR DISPUTES ARISING HEREUNDER OR THEREUNDER OR RELATED HERETO OR THERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. (b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE TRIED AND LITIGATED ONLY IN ANY STATE COURT SITTING IN NEW YORK COUNTY, NEW YORK, AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. BORROWERS AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 12(b). (c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BORROWERS AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS, IF ANY, TO A JURY TRIAL OF ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, XXXX CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS (EACH A “CLAIM”). XXXXXXXXX AND EACH MEMBER OF THE LENDER GROUP REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
82 (d) BORROWERS HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT AGENT MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. (e) NO CLAIM MAY BE MADE BY ANY LOAN PARTY AGAINST THE AGENT, ANY U.S. SWING LENDER, ANY OTHER LENDER, ISSUING BANK, OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, COUNSEL, REPRESENTATIVE, AGENT, OR ATTORNEY-IN-FACT OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION THEREWITH, AND EACH LOAN PARTY HEREBY WAIVES, RELEASES, AND AGREES NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR. 13 ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS. 13.1 Assignments and Participations. (a) (i) Subject to the conditions set forth in clause (a)(ii) below, any Lender may assign and delegate all or any portion of its rights and duties under the Loan Documents (including the Obligations owed to it and its Commitments) to one or more assignees so long as such prospective assignee is an Eligible Transferee (each, an “Assignee”), with the prior written consent (such consent not be unreasonably withheld or delayed) of: (A) Borrowers; provided, that no consent of Borrowers shall be required (1) if an Event of Default has occurred and is continuing, or (2) in connection with an assignment to a Person that is a Lender or an Affiliate (other than natural persons) of a Lender, or a Related Fund; provided further, that Borrowers shall be deemed to have consented to a proposed assignment unless it objects thereto by written notice to Agent within 5 Business Days after having received notice thereof; and (B) Agent, each U.S. Swing Lender, and Issuing Bank. (ii) Assignments shall be subject to the following additional conditions:
83 (A) no assignment may be made (i) so long as no Event of Default has occurred and is continuing, to a Competitor, or (ii) to a natural person, (B) no assignment may be made to a Loan Party or an Affiliate of a Loan Party, (C) the amount of the Commitments and the other rights and obligations of the assigning Lender hereunder and under the other Loan Documents subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to Agent) shall be in a minimum amount (unless waived by Agent) of $5,000,000 (except such minimum amount shall not apply to (I) an assignment or delegation by any Lender to any other Lender, an Affiliate of any Lender, or a Related Fund of such Lender or (II) a group of new Lenders, each of which is an Affiliate of each other or a Related Fund of such new Lender to the extent that the aggregate amount to be assigned to all such new Lenders is at least $5,000,000), (D) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement, (E) each assignment shall be of an equal Pro Rata Share of the U.S. Revolver Commitment, the U.S. Floorplan Commitment, Australian Revolver Commitment, and the Australian Floorplan Commitment, (F) the parties to each assignment shall execute and deliver to Agent an Assignment and Acceptance; provided, that Borrowers and Agent may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned to an Assignee until written notice of such assignment, together with payment instructions, addresses, and related information with respect to the Assignee, have been given to Borrowers and Agent by such Lender and the Assignee, (G) unless waived by Agent, the assigning Lender or Assignee has paid to Agent, for Agent’s separate account, a processing fee in the amount of $3,500, and (H) the assignee, if it is not a Lender, shall deliver to Agent an Administrative Questionnaire in a form approved by Agent (the “Administrative Questionnaire”). (b) From and after the date that Agent receives the executed Assignment and Acceptance and, if applicable, payment of the required processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall be a “Lender” and shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (except with respect to Section 10.3) and be released from any future obligations under this Agreement (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement and the other Loan Documents, such Lender shall cease to be a party hereto and thereto); provided, that nothing contained herein shall release any assigning Lender from obligations that survive the termination of this Agreement, including such assigning Lender’s obligations under Section 15 and Section 17.9(a).
84 (c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the Assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document furnished pursuant hereto, (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under this Agreement or any other Loan Document furnished pursuant hereto, (iii) such Assignee confirms that it has received a copy of this Agreement, together with such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance, (iv) such Assignee will, independently and without reliance upon Agent, such assigning Lender 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 this Agreement, (v) such Assignee appoints and authorizes Agent to take such actions and to exercise such powers under this Agreement and the other Loan Documents as are delegated to Agent, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, and (vi) such Assignee agrees that it will perform all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) Immediately upon Agent’s receipt of the required processing fee, if applicable, and delivery of notice to the assigning Lender pursuant to Section 13.1(b), this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and the resulting adjustment of the Commitments arising therefrom. The Commitment allocated to each Assignee shall reduce such Commitments of the assigning Lender pro tanto. (e) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons (a “Participant”) participating interests in all or any portion of its Obligations, its Commitment, and the other rights and interests of that Lender (the “Originating Lender”) hereunder and under the other Loan Documents; provided, that (i) the Originating Lender shall remain a “Lender” for all purposes of this Agreement and the other Loan Documents and the Participant receiving the participating interest in the Obligations, the Commitments, and the other rights and interests of the Originating Lender hereunder shall not constitute a “Lender” hereunder or under the other Loan Documents and the Originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrowers, Agent, and the Lenders shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender’s rights and obligations under this Agreement and the other Loan Documents, (iv) no Lender shall transfer or grant any participating interest under which the Participant has the right to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment to, or consent or waiver with respect to this Agreement or of any other Loan Document would (A) extend the final maturity date of the Obligations hereunder in which such Participant is participating, (B) reduce the interest rate applicable to the Obligations hereunder in which such Participant is participating, (C) release all or substantially all of the Collateral or guaranties (except to the extent expressly provided herein or in any of the Loan Documents) supporting the Obligations hereunder in which such Participant is participating, (D) postpone the payment of, or reduce the amount of, the interest or fees payable to such Participant through such Lender (other than a waiver of default interest), or (E) decreases the amount or postpones the due dates of scheduled principal repayments or
85 prepayments or premiums payable to such Participant through such Lender, (v) no participation shall be sold to a natural person, (vi) no participation shall be sold to a Loan Party or an Affiliate of a Loan Party, and (vii) all amounts payable by Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. The rights of any Participant only shall be derivative through the Originating Lender with whom such Participant participates and no Participant shall have any rights under this Agreement or the other Loan Documents or any direct rights as to the other Lenders, Agent, Borrowers, the Collateral, or otherwise in respect of the Obligations. No Participant shall have the right to participate directly in the making of decisions by the Lenders among themselves. (f) In connection with any such assignment or participation or proposed assignment or participation or any grant of a security interest in, or pledge of, its rights under and interest in this Agreement, Lender may, subject to the provisions of Section 17.9, disclose all documents and information which it now or hereafter may have relating to Borrowers and its Subsidiaries and their respective businesses. (g) Any other provision in this Agreement notwithstanding, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Bank or U.S. Treasury Regulation 31 CFR §203.24, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law. (h) Agent (as a non-fiduciary agent on behalf of Borrowers) shall maintain, or cause to be maintained, a register (the “Register”) on which it enters the name and address of each Lender as the registered owner of the Revolver Commitments and Floorplan Commitments (and the principal amount thereof and stated interest thereon) held by such Lender (each, a “Registered Loan”). Other than in connection with an assignment by a Lender of all or any portion of its portion of the Revolver Commitments or Floorplan Commitments to an Affiliate of such Lender or a Related Fund of such Lender (i) a Registered Loan (and the registered note, if any, evidencing the same) may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register (and each registered note shall expressly so provide) and (ii) any assignment or sale of all or part of such Registered Loan (and the registered note, if any, evidencing the same) may be effected only by registration of such assignment or sale on the Register, together with the surrender of the registered note, if any, evidencing the same duly endorsed by (or accompanied by a written instrument of assignment or sale duly executed by) the holder of such registered note, whereupon, at the request of the designated assignee(s) or transferee(s), one or more new registered notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s). Prior to the registration of assignment or sale of any Registered Loan (and the registered note, if any evidencing the same), Borrowers shall treat the Person in whose name such Registered Loan (and the registered note, if any, evidencing the same) is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding notice to the contrary. In the case of any assignment by a Lender of all or any portion of its Revolver Commitments or Floorplan Commitments to an Affiliate of such Lender or a Related Fund of such Lender, and which assignment is not recorded in the Register, the assigning Lender, on behalf of Borrowers, shall maintain a register comparable to the Register.
87 (iv) amend, modify, or eliminate this Section or any provision of this Agreement providing for consent or other action by all Lenders, (v) amend, modify, or eliminate Section 3.1 or 3.2, (vi) amend, modify, or eliminate Section 15.11, (vii) other than as permitted by Section 15.11 as in effect on the date hereof, release Agent’s and Australian Security Trustee’s Lien in and to any of the Collateral, (viii) amend, modify, or eliminate the definitions of “Australian Required Lenders”, “Required Lenders”, “U.S. Required Lenders”, “Australian Supermajority Lenders”, “U.S. Supermajority Lenders”, “Pro Rata Share”, “Australian Pro Rata Share” or “U.S. Pro Rata Share”, (ix) contractually subordinate or take any action that has the effect of contractually subordinating any of Agent’s and Australian Security Trustee’s Liens, other than to Permitted Liens under clause (f) of the definition of such term, (x) other than in connection with a merger, liquidation, dissolution or sale of such Person expressly permitted by the terms hereof or the other Loan Documents, release any Borrower or any Guarantor from any obligation for the payment of money or consent to the assignment or transfer by any Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan Documents, (xi) amend, modify, or eliminate any of the provisions of Section 2.4(b)(i), (ii), (iii) or (iv) or Section 2.4(e), (f) or (g), (xii) amend, modify, or eliminate any of the provisions of Section 13.1 with respect to assignments to, or participations with, Persons who are Loan Parties or Affiliates of Loan Parties, or (xiii) amend, modify or eliminate Section 2.14 or Section 2.15 without the consent of all Lenders; (b) No amendment, waiver, modification, or consent shall amend, modify, waive, or eliminate, (i) the definition of, or any of the terms or provisions of, the Fee Letter, without the written consent of Agent and Borrowers (and shall not require the written consent of any of the Lenders), (ii) any provision of Section 15 pertaining to Agent, or any other rights or duties of Agent under this Agreement or the other Loan Documents, without the written consent of Agent, Borrowers, and the Required Lenders, (c) No amendment, waiver, modification, elimination, or consent shall amend, without written consent of Agent, Australian Borrowers and the Australian Supermajority Lenders, modify, or eliminate the definition of Global Borrowing Base, Australian Aggregate Borrowing Base, Australian Floorplan Borrowing Base, or Australian Revolver Borrowing Base or any of the defined terms (including the definitions of Eligible Accounts, Eligible Inventory, Eligible Real Estate, Eligible
88 Rolling Stock/Equipment, Eligible New Floorplan Equipment, Eligible Parts and Attachments Inventory, Eligible Rental Equipment, Eligible Used Floorplan Equipment, New Floorplan Equipment and Used Floorplan Equipment) that are used in such definitions to the extent that any such change results in more credit being made available to Australian Borrowers based upon any Borrowing Base, but not otherwise, or the definition of Australian Maximum Revolver Amount or Australian Maximum Floorplan Amount, or change Sections 2.1.1(c), 2.1.2(c), 2.2.1(c) or 2.2.2(c), (d) No amendment, waiver, modification, elimination, or consent shall amend, without written consent of Agent, U.S. Borrower and the U.S. Supermajority Lenders, modify, or eliminate the definition of Global Borrowing Base, U.S. Aggregate Borrowing Base, U.S. Floorplan Borrowing Base, or U.S. Revolver Borrowing Base or any of the defined terms (including the definitions of Eligible Accounts, Eligible Inventory, Eligible Real Estate, Eligible Rolling Stock/Equipment, Eligible New Floorplan Equipment, Eligible Parts and Attachments Inventory, Eligible Rental Equipment, Eligible Used Floorplan Equipment, New Floorplan Equipment and Used Floorplan Equipment) that are used in such definitions to the extent that any such change results in more credit being made available to U.S. Borrowers based upon any Borrowing Base, but not otherwise, or the definition of U.S. Maximum Revolver Amount or U.S. Maximum Floorplan Amount, or change Sections 2.1.1(c), 2.1.2(c), 2.2.1(c) or 2.2.2(c), (e) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the other Loan Documents pertaining to Issuing Bank, or any other rights or duties of Issuing Bank under this Agreement or the other Loan Documents, without the written consent of Issuing Bank, Agent, Borrowers, and the Required Lenders, (f) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the other Loan Documents pertaining to a U.S. Swing Lender, or any other rights or duties of a U.S. Swing Lender under this Agreement or the other Loan Documents, without the written consent of such U.S. Swing Lender, Agent, U.S. Borrowers, and the Required Lenders, (g) Anything in this Section 14.1 to the contrary notwithstanding, (i) any amendment, modification, elimination, waiver, consent, termination, or release of, or with respect to, any provision of this Agreement or any other Loan Document that relates only to the relationship of the Lender Group among themselves, and that does not affect the rights or obligations of Borrowers, shall not require consent by or the agreement of any Loan Party, and (ii) any amendment, waiver, modification, elimination, or consent of or with respect to any provision of this Agreement or any other Loan Document may be entered into without the consent of, or over the objection of, any Defaulting Lender other than any of the matters governed by Section 14.1(a)(i) through (iii) that affect such Lender, and (h) No real property shall be taken as Collateral unless Lenders receive forty-five (45) days advance notice and each Lender confirms to Agent that it has completed all flood due diligence, received copies of all flood insurance documentation and confirmed flood insurance compliance as required by the Flood Laws or as otherwise satisfactory to such Lender. At any time that any real property constitutes Collateral, no modification of a Loan Document shall add, increase, renew or extend any loan, commitment or credit line hereunder until the completion of flood due diligence, documentation and coverage as required by the Flood Laws or as otherwise satisfactory to all Lenders.
90 Lender hereby irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to designate, appoint, and authorize) Agent to execute and deliver each of the other Loan Documents on its behalf and to take such other action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to Agent by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Xxxxx agrees to act as agent for and on behalf of the Lenders (and the Bank Product Providers) on the conditions contained in this Section 15. Any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document notwithstanding, Agent shall not have any duties or responsibilities, except those expressly set forth herein or in the other Loan Documents, nor shall Agent have or be deemed to have any fiduciary relationship with any Lender (or Bank Product Provider), and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Agent. Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement or the other Loan Documents with reference to Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only a representative relationship between independent contracting parties. Each Lender hereby further authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to act as the secured party under each of the Loan Documents that create a Lien on any item of Collateral. Except as expressly otherwise provided in this Agreement, Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions that Agent expressly is entitled to take or assert under or pursuant to this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, or of any other provision of the Loan Documents that provides rights or powers to Agent, Lenders agree that Agent shall have the right to exercise the following powers as long as this Agreement remains in effect: (a) maintain, in accordance with its customary business practices, ledgers and- records reflecting the status of the Obligations, the Collateral, payments and proceeds of Collateral, and related matters, (b) execute or file any and all financing or similar statements or notices, amendments, renewals, supplements, documents, instruments, proofs of claim, notices and other written agreements with respect to the Loan Documents, (c) make U.S. Revolver Loans, Australian Revolver Loans, U.S. Floorplan Loans and Australian Floorplan Loans, for itself or on behalf of Lenders, as provided in the Loan Documents, (d) exclusively receive, apply, and distribute payments and proceeds of the Collateral as provided in the Loan Documents, (e) open and maintain such bank accounts and cash management arrangements as Agent deems necessary and appropriate in accordance with the Loan Documents for the foregoing purposes, (f) perform, exercise, and enforce any and all other rights and remedies of the Lender Group with respect to Borrowers or its Subsidiaries, the Obligations, the Collateral, or otherwise related to any of same as provided in the Loan Documents, and (g) incur and pay such Lender Group Expenses as Agent may deem necessary or appropriate for the performance and fulfillment of its functions and powers pursuant to the Loan Documents. 15.2 Delegation of Duties. Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be responsible for the negligence or misconduct of any agent or attorney in fact that it selects as long as such selection was made without gross negligence or willful misconduct. 15.3 Liability of Agent. None of the Agent-Related Persons shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any
91 other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (b) be responsible in any manner to any of the Lenders (or Bank Product Providers) for any recital, statement, representation or warranty made by any Borrower or any of its Subsidiaries or Affiliates, or any officer or director thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any failure of any Borrower or its Subsidiaries or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lenders (or Bank Product Providers) to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the books and records or properties of Borrowers or its Subsidiaries. 15.4 Reliance by Agent. Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, telefacsimile or other electronic method of transmission, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to Borrowers or counsel to any Lender), independent accountants and other experts selected by Agent. Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless Agent shall first receive such advice or concurrence of the Lenders as it deems appropriate and until such instructions are received, Agent shall act, or refrain from acting, as it deems advisable. If Agent so requests, it shall first be indemnified to its reasonable satisfaction by the. Lenders (and, if it so elects, the Bank Product Providers) against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Lenders (and Bank Product Providers). 15.5 Notice of Default or Event of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, except with respect to defaults in the payment of principal, interest, fees, and expenses required to be paid to Agent for the account of the Lenders and, except with respect to Events of Default of which Agent has actual knowledge, unless Agent shall have received written notice from a Lender or a Borrower referring to this Agreement, describing such Default or Event of Default, and stating that such notice is a “notice of default.” Agent promptly will notify the Lenders of its receipt of any such notice or of any Event of Default of which Agent has actual knowledge. If any Lender obtains actual knowledge of any Event of Default, such Lender promptly shall notify the other Lenders and Agent of such Event of Default. Each Lender shall be solely responsible for giving any notices to its Participants, if any. Subject to Section 15.4, Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required Lenders in accordance with Section 9; provided, that unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable. 15.6 Credit Decision. Each Lender (and Bank Product Provider) acknowledges that none of the Agent-Related Persons has made any representation or warranty to it, and that no act by Agent hereinafter taken, including any review of the affairs of Borrowers and its Subsidiaries or Affiliates,
92 shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender (or Bank Product Provider). Each Lender represents (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) to Agent that it has, independently and without reliance upon any Agent-Related Person and based on such due diligence, documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of a Borrower or any other Person party to a Loan Document, and all applicable bank regulatory laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to Borrowers. Each Lender also represents (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to represent) that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of a Borrower or any other Person party to a Loan Document. Except for notices, reports, and other documents expressly herein required to be furnished to the Lenders by Agent, Agent shall not have any duty or responsibility to provide any Lender (or Bank Product Provider) with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of a Borrower or any other Person party to a Loan Document that may come into the possession of any of the Agent-Related Persons. Each Lender acknowledges (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that Agent does not have any duty or responsibility, either initially or on a continuing basis (except to the extent, if any, that is expressly specified herein) to provide such Lender (or Bank Product Provider) with any credit or other information with respect to Borrowers, its Affiliates or any of their respective business, legal, financial or other affairs, and irrespective of whether such information came into Agent’s or its Affiliates’ or representatives’ possession before or after the date on which such Lender became a party to this Agreement (or such Bank Product Provider entered into a Bank Product Agreement). 15.7 Costs and Expenses; Indemnification. Agent may incur and pay Lender Group Expenses to the extent Agent reasonably deems necessary or appropriate for the performance and fulfillment of its functions, powers, and obligations pursuant to the Loan Documents, including court costs, attorneys’ fees and expenses, fees and expenses of financial accountants, advisors, consultants, and appraisers, costs of collection by outside collection agencies, auctioneer fees and expenses, and costs of security guards or insurance premiums paid to maintain the Collateral, whether or not a Borrower is obligated to reimburse Agent or Lenders for such expenses pursuant to this Agreement or otherwise. Agent is authorized and directed to deduct and retain sufficient amounts from payments or proceeds of the Collateral received by Agent to reimburse Agent for such out-of-pocket costs and expenses prior to the distribution of any amounts to Lenders (or Bank Product Providers). In the event Agent is not reimbursed for such costs and expenses by a Borrower or its Subsidiaries, each Lender hereby agrees that it is and shall be obligated to pay to Agent such Xxxxxx’s ratable thereof. Whether or not the transactions contemplated hereby are consummated, each of the Lenders, on a ratable basis, shall indemnify and defend the Agent-Related Persons (to the extent not reimbursed by or on behalf of a Borrower and without limiting the obligation of Borrowers to do so) from and against any and all Indemnified Liabilities; provided, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting solely from such Person’s gross negligence or willful misconduct nor shall any Lender be liable for the obligations of any Defaulting Lender in failing to make a U.S. Revolver Loan, an Australian Revolver Loan, a U.S. Floorplan Loan an Australian Floorplan Loan or other extension of credit hereunder. Without limitation of the
93 foregoing, each Lender shall reimburse Agent upon demand for such Xxxxxx’s ratable share of any costs or out of pocket expenses (including attorneys, accountants, advisors, and consultants fees and expenses) incurred by Agent in connection with the preparation, execution, delivery, administration, modification, amendment, or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement or any other Loan Document to the extent that Agent is not reimbursed for such expenses by or on behalf of Borrowers. Notwithstanding anything herein to the contrary, Lenders shall be liable and indemnify Agent-Related Persons in accordance with this Section 15.7 for Indemnified Liabilities and other costs and expenses that relate to or arise from an Agent-Related Person acting as or for Agent (in its capacity as Agent), and not in any individual capacity. The undertaking in this Section shall survive the payment of all Obligations hereunder and the resignation or replacement of Agent. 15.8 Agent in Individual Capacity. Bank of America and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, provide Bank Products, and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with Borrowers and its Subsidiaries and Affiliates and any other Person party to any Loan Document as though Bank of America were not Agent hereunder, and, in each case, without notice to or consent of the other members of the Lender Group. The other members of the Lender Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, Bank of America or its Affiliates may receive information regarding Borrowers or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of Borrowers or such other Person and that prohibit the disclosure of such information to the Lenders (or Bank Product Providers), and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, which waiver Agent will use its reasonable best efforts to obtain), Agent shall not be under any obligation to provide such information to them. The terms “Lender” and “Lenders” include Bank of America in its individual capacity. 15.9 Successor Agent. Agent may resign as Agent upon 30 days (10 days if an Event of Default has occurred and is continuing) prior written notice to the Lenders (unless such notice is waived by the Required Lenders) and Borrowers (unless such notice is waived by Borrowers or an Event of Default exists) and without any notice to the Bank Product Providers. If Agent resigns under this Agreement, the Required Lenders shall be entitled, with (so long as no Event of Default has occurred and is continuing) the consent of Borrowers (such consent not to be unreasonably withheld, delayed, or conditioned), appoint a successor Agent for the Lenders (and the Bank Product Providers). If, at the time that Agent’s resignation is effective, it is acting as Issuing Bank or a U.S. Swing Lender, such resignation shall also operate to effectuate its resignation as Issuing Bank or such U.S. Swing Lender, as applicable, and it shall automatically be relieved of any further obligation to issue Letters of Credit, or to make Swing Loans. If no successor Agent is appointed prior to the effective date of the resignation of Agent, Agent may appoint, after consulting with the Lenders and Xxxxxxxxx, a successor Agent. If Agent has materially breached or failed to perform any material provision of this Agreement or of applicable law, the Required Lenders may agree in writing to remove and replace Agent with a successor Agent from among the Lenders with (so long as no Event of Default has occurred and is continuing) the consent of Borrowers (such consent not to be unreasonably withheld, delayed, or conditioned). In any such event, upon the acceptance of its appointment as successor Agent hereunder, such successor Agent shall succeed to all the rights, powers, and duties of the retiring Agent and the term “Agent” shall mean such successor Agent and the retiring Agent’s appointment, powers, and duties as Agent shall be terminated. After any retiring Agent’s resignation hereunder as Agent, the
94 provisions of this Section 15 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. If no successor Agent has accepted appointment as Agent by the date which is 30 days following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Lenders appoint a successor Agent as provided for above. 15.10 Lender in Individual Capacity. Any Lender and its respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, provide Bank Products to, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting, or other business with Borrowers and its Subsidiaries and Affiliates and any other Person party to any Loan Documents as though such Lender were not a Lender hereunder without notice to or consent of the other members of the Lender Group (or the Bank Product Providers). The other members of the Lender Group acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, pursuant to such activities, such Lender and its respective Affiliates may receive information regarding Borrowers or its Affiliates or any other Person party to any Loan Documents that is subject to confidentiality obligations in favor of Borrowers or such other Person and that prohibit the disclosure of such information to the Lenders, and the Lenders acknowledge (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge) that, in such circumstances (and in the absence of a waiver of such confidentiality obligations, such Lender shall not be under any obligation to provide such information to them. 15.11 Collateral Matters. (a) The Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent to release any Lien on any Collateral (i) upon the termination of the Commitments and payment and satisfaction in full by Borrowers of all of the Obligations, (ii) constituting property being sold or disposed of if a release is required or desirable in connection therewith and if any Borrower certifies to Agent that the sale or disposition is permitted under Section 6.4 (and Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property in which neither any Borrower nor any of its Subsidiaries owned no interest at the time Agent’s and Australian Security Trustee’s Lien was granted nor at any time thereafter, (iv) constituting property leased or licensed to a Borrower or its Subsidiaries under a lease or license that has expired or is terminated in a transaction permitted under this Agreement, or (v) in connection with a credit bid or purchase authorized under this Section 15.11. The Loan Parties and the Lenders hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to authorize) Agent, based upon the instruction of the Required Lenders, to (a) consent to the credit bid, or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code, (b) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the Code, including pursuant to Sections 9-610 or 9-620 of the Code, or (c) credit bid or purchase (either directly or indirectly through one or more entities) all or any portion of the Collateral at any other sale or foreclosure conducted or consented to by Agent in accordance with applicable law in any judicial action or proceeding or by the exercise of any legal or equitable remedy. In connection with any such credit bid or purchase, (i) the Obligations owed to the Lenders and the Bank Product Providers shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent
95 or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not impair or unduly delay the ability of Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such contingent or unliquidated claims cannot be estimated without impairing or unduly delaying the ability of Agent to credit bid at such sale or other disposition, then such claims shall be disregarded, not credit bid, and not entitled to any interest in the Collateral that is the subject of such credit bid or purchase) and the Lenders and the Bank Product Providers whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the Collateral that is the subject of such credit bid or purchase (or in the Equity Interests of the any entities that are used to consummate such credit bid or purchase), and (ii) Agent, based upon the instruction of the Required Lenders, may accept non-cash consideration, including debt and equity securities issued by any entities used to consummate such credit bid or purchase and in connection therewith Agent may reduce the Obligations owed to the Lenders and the Bank Product Providers (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration. Except as provided above, Agent will not execute and deliver a release of any Lien on any Collateral without the prior written authorization of (y) if the release is of all or substantially all of the Collateral, all of the Lenders (without requiring the authorization of the Bank Product Providers), or (z) otherwise, the Required Lenders (without requiring the authorization of the Bank Product Providers). Upon request by Agent or a Borrower at any time, the Lenders will (and if so requested, the Bank Product Providers will) confirm in writing Agent’s authority to release any such Liens on particular types or items of Collateral pursuant to this Section 15.11; provided, that (1) anything to the contrary contained in any of the Loan Documents notwithstanding, Agent shall not be required to execute any document or take any action necessary to evidence such release on terms that, in Agent’s opinion, could expose Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (2) such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly released) upon (or obligations of Borrowers in respect of) any and all interests retained by Borrowers, including, the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Each Lender further hereby irrevocably authorize (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to irrevocably authorize) Agent, at its option and in its sole discretion, to subordinate any Lien granted to or held by Agent under any Loan Document to the holder of any Permitted Lien on such property if such Permitted Lien secures Permitted Purchase Money Indebtedness. (b) Agent shall have no obligation whatsoever to any of the Lenders (or the Bank Product Providers) (i) to verify or assure that the Collateral exists or is owned by a Borrower or its Subsidiaries or is cared for, protected, or insured or has been encumbered, (ii) to verify or assure that Agent’s and Australian Security Trustee’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, (iii) to verify or assure that any particular items of Collateral meet the eligibility criteria applicable in respect thereof, (iv) to impose, maintain, increase, reduce, implement, or eliminate any particular reserve hereunder or to determine whether the amount of any reserve is appropriate or not, or (v) to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Agent may act in any manner it may deem appropriate, in its sole discretion given Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Agent shall have no other duty or liability whatsoever to any Lender (or Bank Product Provider) as to any of the foregoing, except as otherwise expressly provided herein.
101 execution, delivery, performance, recordation, or filing of, or otherwise with respect to this Agreement or any other Loan Document. 16.2 Exemptions. (a) If a Lender or Participant is entitled to claim an exemption or reduction from United States withholding tax, such Lender or Participant agrees with and in favor of Agent, to deliver to Agent (or, in the case of a Participant, to the Lender granting the participation only) one of the following before receiving its first payment under this Agreement: (i) if such Lender or Participant is entitled to claim an exemption from United States withholding tax pursuant to the portfolio interest exception, (A) a statement of the Lender or Participant, signed under penalty of perjury, that it is not a (I) a “bank” as described in Section 881(c)(3)(A) of the IRC, (II) a 10% shareholder of Borrower (within the meaning of Section 871(h)(3)(B) of the IRC), or (III) a controlled foreign corporation related to Borrowers within the meaning of Section 864(d)(4) of the IRC, and (B) a properly completed and executed IRS Form W- 8BEN, Form W-8BEN-E or Form W-8IMY (with proper attachments), as applicable; (ii) if such Lender or Participant is entitled to claim an exemption from, or a reduction of, withholding tax under a United States tax treaty, a properly completed and executed copy of IRS Form W-8BEN or Form W-8BEN-E, as applicable; (iii) if such Lender or Participant is entitled to claim that interest paid under this Agreement is exempt from United States withholding tax because it is effectively connected with a United States trade or business of such Lender, a properly completed and executed copy of IRS Form W-8ECI; (iv) if such Lender or Participant is entitled to claim that interest paid under this Agreement is exempt from United States withholding tax because such Lender or Participant serves as an intermediary, a properly completed and executed copy of IRS Form W-8IMY (with proper attachments); or (v) a properly completed and executed copy of any other form or forms, including IRS Form W-9, as may be required under the IRC or other laws of the United States as a condition to exemption from, or reduction of, United States withholding or backup withholding tax, or (vi) a properly completed form or forms, and other required documentation (to be designated under Sections 1471 and 1472 of the Code) to claim an exemption from any withholding tax imposed under FATCA. (b) Each Lender or Participant shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms and to promptly notify Agent (or, in the case of a Participant, to the Lender granting the participation only) of any change in circumstances which would modify or render invalid any claimed exemption or reduction. (c) If a Lender or Participant claims an exemption from withholding tax in a jurisdiction other than the United States, such Lender or such Participant agrees with and in favor of Agent, to deliver to Agent (or, in the case of a Participant, to the Lender granting the participation only) any such form or forms, as may be required under the laws of such jurisdiction as a condition to
102 exemption from, or reduction of, foreign withholding or backup withholding tax before receiving its first payment under this Agreement, but only if such Lender or such Participant is legally able to deliver such forms, provided, that nothing in this Section 16.2(c) shall require a Lender or Participant to disclose any information that it deems to be confidential (including without limitation, its tax returns). Each Lender and each Participant shall provide new forms (or successor forms) upon the expiration or obsolescence of any previously delivered forms and to promptly notify Agent (or, in the case of a Participant, to the Lender granting the participation only) of any change in circumstances which would modify or render invalid any claimed exemption or reduction. (d) If a Lender or Participant claims exemption from, or reduction of, withholding tax and such Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all or part of the Obligations of Borrowers to such Lender or Participant, such Lender or Participant agrees to notify Agent (or, in the case of a sale of a participation interest, to the Lender granting the participation only) of the percentage amount in which it is no longer the beneficial owner of Obligations of Borrowers to such Lender or Participant. To the extent of such percentage amount, Agent will treat such Lender’s or such Participant’s documentation provided pursuant to Section 16.2(a) or 16.2(c) as no longer valid. With respect to such percentage amount, such Participant or Assignee may provide new documentation, pursuant to Section 16.2(a) or 16.2(c), if applicable. Borrowers agree that each Participant shall be entitled to the benefits of this Section 16 with respect to its participation in any portion of the Commitments and the Obligations so long as such Participant complies with the obligations set forth in this Section 16 with respect thereto. (e) If a payment made to a Lender under any Loan Document would be subject to U.S. federal income withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the IRC, as applicable), such Lender shall deliver to Agent (or, in the case of a Participant, to the Lender granting the participation only) at the time or times prescribed by law and at such time or times reasonably requested by Agent (or, in the case of a Participant, the Lender granting the participation) such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the IRC) and such additional documentation reasonably requested by Agent (or, in the case of a Participant, the Lender granting the participation) as may be necessary for Agent or Borrowers to comply with their obligations under FATCA and to determine that such Xxxxxx has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. 16.3 Reductions. (a) If a Lender or a Participant is subject to an applicable withholding tax, Agent (or, in the case of a Participant, the Lender granting the participation) may withhold from any payment to such Lender or such Participant an amount equivalent to the applicable withholding tax. If the forms or other documentation required by Section 16.2(a) or 16.2(c) are not delivered to Agent (or, in the case of a Participant, to the Lender granting the participation), then Agent (or, in the case of a Participant, to the Lender granting the participation) may withhold from any payment to such Lender or such Participant not providing such forms or other documentation an amount equivalent to the applicable withholding tax. (b) If the Internal Revenue Service or any other Governmental Authority of the United States or other jurisdiction asserts a claim that Agent (or, in the case of a Participant, to the
108 with the Patriot Act. In addition, if Agent is required by law or regulation or internal policies to do so, it shall have the right to periodically conduct (a) Patriot Act searches, OFAC/PEP searches, and customary individual background checks for the Loan Parties and (b) OFAC/PEP searches and customary individual background checks for the Loan Parties’ senior management and key principals, and each Borrower agrees to cooperate in respect of the conduct of such searches and further agrees that the reasonable costs and charges for such searches shall constitute Lender Group Expenses hereunder and be for the account of Borrowers. 17.12 Integration. This Agreement, together with the other Loan Documents, reflects the entire understanding of the parties with respect to the transactions contemplated hereby and shall not be contradicted or qualified by any other agreement, oral or written, before the date hereof. The foregoing to the contrary notwithstanding, all Bank Product Agreements, if any, are independent agreements governed by the written provisions of such Bank Product Agreements, which will remain in full force and effect, unaffected by any repayment, prepayments, acceleration, reduction, increase, or change in the terms of any credit extended hereunder, except as otherwise expressly provided in such Bank Product Agreement. 17.13 No Set-Off. All payments made by Borrowers hereunder or under any note or other Loan Document will be made without setoff, counterclaim, or other defense. 17.14 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the parties, each party hereto acknowledges that, with respect to any Lender that is an EEA Financial Institution, any liability of such Lender arising under a Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority, and each party hereto agrees and consents to, and acknowledges and agrees to be bound by, (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liability which may be payable to it by such Lender; and (b) the effects of any Bail-in Action on any such liability, including (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under any Loan Document; or (iii) the variation of the terms of such liability in connection with the exercise of any Write-Down and Conversion Powers. 17.15 Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Hedge Agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): (a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the
109 transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. 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. (b) As used in this Section 17.15, the following terms have the following meanings: “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. “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). “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. “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). 17.16 Administrator Appointed to an Australian Loan Party. If (a) the Agent and/or the Australian Security Trustee is notified by a party or under the Australian Corporations Act that an administrator has been appointed (other than by the Australian Security Trustee) to an Australian Loan Party, and (b) the Australian Security Trustee is entitled under section 441A of the Australian Corporations Act to enforce a Lien or other security interest over that Australian Loan Party's property within the decision period provided for under that section, then: (a) the Agent and/or the Australian Security Trustee (as applicable) shall promptly notify the Lenders and seek instructions as to whether or not it should enforce that Lien or other security interest within that decision period; and (b) unless it receives instructions from the requisite Lenders not to enforce by a time which it considers to be the latest time by which instructions should be received in order for it to be able to arrange the enforcement of the Lien or other security interest within that period, then the Australian Security Trustee may enforce that Lien or other security interest but need not do so (and is not liable to any of the Parties to this Agreement if it does not do so).
111 there shall occur an acceleration of Loans and termination of the Commitments pursuant to Section 9.1. (iii) “CAM Percentage” means, as to each Lender, a fraction expressed as a percentage, (i) the numerator of which shall be the aggregate amount of such Lender’s Commitments immediately prior to the CAM Exchange Date, and (ii) the denominator of which shall be amount of the Commitments of all Lenders immediately prior to the CAM Exchange Date. (iv) “Designated Obligations” means, the Dollar Equivalent of all Obligations of Borrowers with respect to (i) principal and interest under all Loans, Overadvance Loans and Protective Advances, (ii) unreimbursed drawings under Letters of Credit and interest thereon, and (iii) fees hereunder. (b) CAM Exchange. On the CAM Exchange Date, (a) each U.S. Lender shall fund its participation in any outstanding U.S. Protective Advances and unreimbursed drawings made under U.S. Letters of Credit in accordance herewith and (b) each Australian Lender shall fund its participation in any outstanding Australian Protective Advances in accordance herewith, and Lenders shall purchase at par interests in the Designated Obligations (and shall make payments to Agent for reallocation to other Lenders to the extent necessary to give effect to such purchases) and shall assume the obligations to reimburse Issuing Bank for unreimbursed drawings under outstanding Letters of Credit such that, in lieu of the interests of each Lender in the Designated Obligations under the U.S. Revolver Commitments, the Australian Revolver Commitments, the U.S. Floorplan Commitments and the Australian Floorplan Commitments, in which it shall participate immediately prior to the CAM Exchange Date, such Lender shall own an interest equal to such Xxxxxx’s CAM Percentage in each component of the Designated Obligations immediately following the CAM Exchange. (c) Consents; Delivery of Notes. Each Lender and each Person acquiring a participation from any Lender as contemplated by Section 13 hereby consents and agrees to the CAM Exchange. Each Borrower agrees from time to time to execute and deliver to Lenders all such promissory notes and other instruments and documents as Agent shall reasonably request to evidence and confirm the respective interests and obligations of Lenders after giving effect to the CAM Exchange, and each Lender agrees to surrender any promissory notes originally received by it in connection with its Loans under this Agreement to Agent against delivery of any promissory notes so executed and delivered; provided that the failure of any Lender to deliver or accept any such promissory note, instrument or document shall not affect the validity or effectiveness of the CAM Exchange. (d) Distribution of Payments. As a result of the CAM Exchange, from and after the CAM Exchange Date, each payment received by Agent pursuant to any Loan Document in respect of any of the Designated Obligations shall be distributed to Lenders, pro rata in accordance with their respective CAM Percentages. (e) Post-CAM Exchange Date Letter of Credit Drawings. In the event that on or after the CAM Exchange Date, the aggregate amount of the Designated Obligations shall change as a result of the making of a disbursement under a Letter of Credit by a Issuing Bank that is not reimbursed by a Borrower, then each Lender shall promptly reimburse Issuing Bank for its CAM Percentage of such unreimbursed payment.
113 or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for any Australian Obligations or any action, or the absence of any action, by Agent or any Australian Lender in respect thereof (including the release of any security or guaranty); (d) the insolvency of any Loan Party; (e) any borrowing or grant of a Lien by any other Australian Borrower under any bankruptcy or insolvency law; (g) the disallowance of any claims of Agent or any Lender against any Loan Party for the repayment of any Australian Obligations in connection with any Insolvency Proceeding; or (h) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except payment in full of the Australian Obligations. [SIGNATURE PAGES FOLLOW.]
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (TITAN MACHINERY) SIGNATURE PAGE AUSTRALIAN BORROWER: Executed by X.X. X'Xxxxxx & Sons Pty Ltd ACN 005 242 142 in accordance with section 127 of the Corporations Act 2001 (Cth): Director/company secretary Director Name of director/company secretary (BLOCK LETTERS) Name of director (BLOCK LETTERS)
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (TITAN MACHINERY) SIGNATURE PAGE BANK OF AMERICA, N.A., as Agent By: Name: Title: BANK OF AMERICA, N.A., as a U.S. Floorplan Lender, a U.S. Revolver Lender and a U.S. Swing Lender By: Name: Title: BANK OF AMERICA, N.A., ACTING THROUGH ITS SYDNEY BRANCH, as an Australian Floorplan Lender, an Australian Revolver Lender and an Australian Floorplan Swing Lender By: Name: Title:
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (TITAN MACHINERY) SIGNATURE PAGE BANK OF AMERICA, N.A., ACTING THROUGH ITS SYDNEY BRANCH, as Australian Security Trustee By: Name: Title:
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (TITAN MACHINERY) SIGNATURE PAGE XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a U.S. Floorplan Lender and a U.S. Revolver Lender By: Name: Title: XXXXX FARGO BANK, N.A., LONDON BRANCH, as an Australian Floorplan Lender and an Australian Revolver Lender By: Name: Title:
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (TITAN MACHINERY) SIGNATURE PAGE AGCOUNTRY FARM CREDIT SERVICES, PCA, as a U.S. Floorplan Lender and a U.S. Revolver Lender By: Name: Title:
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (TITAN MACHINERY) SIGNATURE PAGE XXXXXXX BANK, NATIONAL ASSOCIATION (successor by merger to Sterling National Bank), as a U.S. Floorplan Lender and a U.S. Revolver Lender By: Name: Title:
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (TITAN MACHINERY) SIGNATURE PAGE PNC BANK, NATIONAL ASSOCIATION, as a U.S. Floorplan Lender and a U.S. Revolver Lender By: Name: Title: PNC BANK, NATIONAL ASSOCIATION as an Australian Floorplan Lender and an Australian Revolver Lender By: Name: Title:
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (TITAN MACHINERY) SIGNATURE PAGE TD BANK, N.A., as a U.S. Floorplan Lender and a U.S. Revolver Lender By: Name: Title: TD BANK, N.A., as an Australian Floorplan Lender and an Australian Revolver Lender By: Name: Title:
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (TITAN MACHINERY) SIGNATURE PAGE HSBC BANK USA, NATIONAL ASSOCIATION, as a U.S. Floorplan Lender and a U.S. Revolver Lender By: Name: Title: HSBC BANK USA, NATIONAL ASSOCIATION, as an Australian Floorplan Lender and an Australian Revolver Lender By: Name: Title:
Schedule 1 – Defined Terms Page 1 Schedule 1.1 DEFINED TERMS As used in the Agreement, the following terms shall have the following definitions: “Account” means an account (as that term is defined in the Code). “Account Debtor” means any Person who is obligated on an Account, chattel paper, or a general intangible. “Accounting Changes” means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar functions). “Acquired Indebtedness” means Indebtedness of a Person whose assets or Equity Interests are acquired by a Borrower or any of its Subsidiaries in a Permitted Acquisition; provided, that such Indebtedness (a) constitutes Permitted Shortline Debt, purchase money Indebtedness or a Capital Lease with respect to Equipment or mortgage financing with respect to Real Property, (b) was in existence prior to the date of such Permitted Acquisition, and (c) was not incurred in connection with, or in contemplation of, such Permitted Acquisition. “Acquisition” means (a) the purchase or other acquisition by a Person or its Subsidiaries of all or substantially all of the- assets of (or any division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, consolidation, or otherwise) by a Person or its Subsidiaries of all or substantially all of the Equity Interests of any other Person. “Additional Documents” has the meaning specified therefor in Section 5.12 of the Agreement. “Additional Increase” has the meaning specified therefor in Section 2.15. “Additional Increase Date” has the meaning specified therefor in Section 2.15. “Additional Increase Excess” has the meaning specified therefor in Section 2.15. “Additional Increase Joinder” has the meaning specified therefor in Section 2.15. “Adjusted Excess Availability” means, as of any date of determination, Excess Availability as determined without including any Quarter End Borrowing as outstanding Revolver Loans or Floorplan Loans, as applicable, for the period commencing on the last day of the applicable fiscal quarter of Borrowers and ending on the earlier to occur of (a) two (2) Business Days thereafter and (b) the date on which such Quarter End Borrowing is repaid in full. “Administrative Questionnaire” has the meaning specified therefor in Section 13.1(a) of the Agreement. “Affiliate” means, as applied to any Person, any other Person who controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” means the possession, directly or indirectly through one or more intermediaries, of the power to direct the
Schedule 1 – Defined Terms Page 2 management and policies of a Person, whether through the ownership of Equity Interests, by contract, or otherwise; provided, that, for purposes of the definition of Eligible Accounts and Section 6.10 of the Agreement: (a) any Person which owns directly or indirectly 10% or more of the Equity Interests having ordinary voting power for the election of directors or other members of the governing body of a Person or 10% or more of the partnership or other ownership interests of a Person (other than as a limited partner of such Person) shall be deemed an Affiliate of such Person, (b) each director (or comparable manager) of a Person shall be deemed to be an Affiliate of such Person, and (c) each partnership in which a Person is a general partner shall be deemed an Affiliate of such Person. “Agent” has the meaning specified therefor in the preamble to the Agreement. “Agent-Related Persons” means Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents. “Agent’s Account” means the Deposit Accounts of Agent identified on Schedule A-1 to the Agreement (or such other Deposit Account of Agent-that has been designated as such, in writing, by Agent to Borrowers and the Lenders). “Agent’s and Australian Security Trustee’s Liens” means the Liens granted by Borrowers or its Subsidiaries to Agent under the Loan Documents and securing the Obligations. “Agreement” means the Credit Agreement to which this Schedule 1.1 is attached. “Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, and all other applicable laws and regulations or ordinances concerning or relating to bribery or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business. “Anti-Money Laundering Laws” means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto. “Applicable Margin” means, as of any date of determination and with respect to U.S. Base Rate Loans, U.S. SOFR Rate Loans, Australian Base Rate Loans or Australian Bill Rate Loans, as applicable, the applicable margin set forth in the following table that corresponds to the Average Adjusted Excess Availability of Borrowers for the most recently completed fiscal quarter of Borrowers; provided that any time an Event of Default has occurred and is continuing, the Applicable Margin shall be set at the margin in the row styled “Level III”: Level Average Adjusted Excess Availability as a percent of the Global Maximum Credit Amount Applicable Margin Relative to Base Rate Loans (the “Base Rate Margin”) Applicable Margin Relative to U.S. SOFR Rate Loans (the “SOFR Rate Margin”) Applicable Margin Relative to Australian Base Rate Loans and Australian Bill Rate Loans (the “Australian Rate Margin”) I > 66.6% 0.75% 1.75% 1.75% II < 66.6% and > 33.3% 1.00% 2.00% 2.00% III < 33.3% 1.25% 2.25% 2.25%
Schedule 1 – Defined Terms Page 4 “Australian Borrowers” means X.X. X’Xxxxxx & Sons Pty Ltd, a company incorporated under the laws of Australia with ACN 005 242 142, and each other entity party hereto from time to time that contributes to the Australian Revolver Borrowing Base. “Australian Cash Rate” means for any day in respect of any Australian Base Rate Loans denominated in Australian Dollars, the interbank overnight cash rate in respect of that day calculated by the Reserve Bank of Australia, as such rate is displayed on the Reuters screen RBA30 page (or any successor page); provided that, if the rate displayed at such time shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. If such rate does not appear on the Reuters screen RBA30 page (or any successor page) in respect of any day, the rate for that day will be as determined by the Agent (in consultation with the Australian Borrowers), as the case may be, in accordance with banking industry rules on interbank compensation. “Australian Collateral” means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by the Australian Loan Parties or any of their Subsidiaries in or upon which a Lien is granted by such Person in favor of the Australian Security Trustee under any of the Loan Documents. “Australian Corporations Act” means the Corporations Act 2001 (Cth) of Australia. “Australian Deemed Floorplan Borrowing Base” means commencing on the Closing Date and continuing until Australian Deemed Borrowing Base Termination Date, with respect to any Australian Borrower, as of any date of determination, the result of: (a) 60% of the amount of Eligible Accounts owing to an Australian Borrower, less the amount, if any, of the Dilution Reserve with respect to an Australian Borrower, plus (b) the product of 25% multiplied by the value (calculated at the lower of cost or market on a basis consistent with Australian Borrower’s historical accounting practices) of Eligible Parts and Attachments Inventory owned by an Australian Borrower at such time, plus (c) the product of 38% multiplied by the value (calculated at the lower of cost or market on a basis consistent with Australian Borrower’s historical accounting practices) of Eligible Inventory (excluding Eligible Parts and Attachments Inventory) owned by an Australian Borrower at such time, plus (d) if requested by the Australian Borrower to the Agent as noted in the then current Australian Floorplan Borrowing Base Certificate (any such included request, an “Australian Deemed Floorplan Borrowing Base Reallocation Notice”), a portion of the positive amount, if any, by which the U.S. Revolver Availability exceeds the total U.S. Revolver Usage of all U.S. Lenders on the date of such request and a portion of the positive amount, if any, by which the U.S. Floorplan Availability exceeds the total U.S. Floorplan Usage of all U.S. Lenders on the date of such request, may be reallocated to the Australian Deemed Floorplan Borrowing Base (without duplication of any such amounts reallocated to the Australian Deemed Floorplan Borrowing Base); provided that a Australian Floorplan Deemed Borrowing Base Reallocation Notice may only be delivered once in any calendar month and no more than six times in any Calendar year, and shall set forth the requested reallocation, and which reallocation shall become effective upon confirmation by the Agent that such reallocation would not cause the U.S. Revolver Usage to exceed the U.S. Revolver Borrowing Base, the U.S. Floorplan Usage to exceed the U.S. Floorplan Borrowing Base or the Australian Aggregate Usage to
Schedule 1 – Defined Terms Page 5 exceed the Australian Aggregate Borrowing Base, and which reallocation shall remain effective thereafter until such time, if any, as a new Australian Floorplan Deemed Borrowing Base Reallocation Notice is received and has become effective; provided further that a Reserve against the U.S. Floorplan Borrowing Base or U.S. Revolver Borrowing Base, as applicable, shall be implemented in an amount equal to such amount so reallocated, minus (e) the aggregate amount of Receivables Reserves, Bank Product Reserves, Inventory Reserves, Cash Settlement Reserves and other Reserves, if any, established by Agent under Section 2.1(c) of the Agreement with respect to the Australian Revolver Borrowing Base. “Australian Deemed Borrowing Base Termination Date” means the earlier of (a) 90 days after the Closing Date (or such later date as agreed to by the Agent), and (b) the first date upon which a satisfactory field examination with respect to Australian Borrowers and a satisfactory Inventory appraisal with respect to Australian Borrower shall have been completed by a field examiner and appraiser reasonably acceptable to the Agent. “Australian Dollars” or “AUS$” means the lawful currency of Australia. “Australian Floorplan Availability” means, as of any date of determination, the amount that Australian Borrowers are entitled to borrow as Australian Floorplan Loans under Section 2.2 of the Agreement (after giving effect to the then outstanding Australian Floorplan Usage). “Australian Floorplan Borrowing Base” means, with respect to an Australian Borrower, as of any date of determination, the result of: (a) The lesser of (i) the product of 85% multiplied by the value (calculated at the lower of cost or market on a basis consistent with Australian Borrower’s historical accounting practices) of Eligible New Floorplan Equipment owned by an Australian Borrower, which at such time is aged less than twelve (12) months, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent inventory appraisal ordered and obtained by Agent multiplied by the value of Eligible New Floorplan Equipment owned by an Australian Borrower, which at such time is aged less than twelve (12) months (such determination may be made as to different categories of Eligible New Floorplan Equipment owned by an Australian Borrower, based upon the Net Recovery Percentage applicable to such categories) at such time, plus (b) the lesser of (i) the product of 80% multiplied by the value (calculated at the lower of cost or market on a basis consistent with Australian Borrower’s historical accounting practices) of Eligible New Floorplan Equipment owned by an Australian Borrower, which at such time is aged equal to or greater than twelve (12) months, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent inventory appraisal ordered and obtained by Agent multiplied by the value of Eligible New Floorplan Equipment owned by an Australian Borrower, which at such time is aged equal to or greater than twelve (12) months (such determination may be made as to different categories of Eligible New Floorplan Equipment owned by an Australian Borrower, based upon the Net Recovery Percentage applicable to such categories) at such time, plus (c) the lesser of (i) the product of 75% multiplied by the value (calculated at the lower of cost or market on a basis consistent with Australian Borrower’s historical accounting practices) of Eligible Used Floorplan Equipment owned by an Australian Borrower at such time, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent inventory appraisal
Schedule 1 – Defined Terms Page 6 ordered and obtained by Agent multiplied by the value of Eligible Used Floorplan Equipment at such time (such determination may be made as to different categories of Eligible Used Floorplan Equipment owned by an Australian Borrower based upon the Net Recovery Percentage applicable to such categories) at such time, plus (d) if requested by the Australian Borrower to the Agent as noted in the then current Australian Floorplan Borrowing Base Certificate (any such included request, an “Australian Floorplan Borrowing Base Reallocation Notice”), a portion of the positive amount, if any, by which the U.S. Revolver Availability exceeds the total U.S. Revolver Usage of all U.S. Lenders on the date of such request and a portion of the positive amount, if any, by which the U.S. Floorplan Availability exceeds the total U.S. Floorplan Usage of all U.S. Lenders on the date of such request, may be reallocated to the Australian Floorplan Borrowing Base (without duplication of any such amounts reallocated to the Australian Revolver Borrowing Base); provided that a Australian Floorplan Borrowing Base Reallocation Notice may only be delivered once in any calendar month and no more than six times in any Calendar year, and shall set forth the requested reallocation, and which reallocation shall become effective upon confirmation by the Agent that such reallocation would not cause the U.S. Revolver Usage to exceed the U.S. Revolver Borrowing Base, the U.S. Floorplan Usage to exceed the U.S. Floorplan Borrowing Base or the Australian Aggregate Usage to exceed the Australian Aggregate Borrowing Base, and which reallocation shall remain effective thereafter until such time, if any, as a new Australian Floorplan Borrowing Base Reallocation Notice is received and has become effective; provided further that a Reserve against the U.S. Floorplan Borrowing Base or U.S. Revolver Borrowing Base, as applicable, shall be implemented in an amount equal to such amount so reallocated, minus (e) the aggregate amount of Bank Product Reserves, Inventory Reserves, Cash Settlement Reserves and other Reserves, if any, established by Agent under Section 2.2.2(c) of the Agreement with respect to the Australian Floorplan Borrowing Base. Notwithstanding the foregoing, in no event shall the aggregate amount determined under clauses (b) and (c) of the Australian Floorplan Borrowing Base with respect Eligible New Floorplan Equipment owned by an Australian Borrower and Eligible Used Floorplan Equipment owned by an Australian Borrower aged twenty-four (24) to thirty-six (36) months be greater than 15% of the Australian Maximum Credit Amount. “Australian Floorplan Borrowing Base Certificate” means a certificate in the form of Exhibit B-2(ii). “Australian Floorplan Commitment” means, with respect to each Australian Floorplan Lender, its Australian Floorplan Commitment, and, with respect to all Australian Floorplan Lenders, their Australian Floorplan Commitments, in each case as such Dollar amounts are set forth beside such Australian Floorplan Lender’s name under the applicable heading on Schedule C-2 to the Agreement or in the Assignment and Acceptance pursuant to which such Australian Floorplan Lender became a Australian Floorplan Lender under the Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement and reallocations made in accordance with the provisions of Section 2.4(g) of the Agreement. “Australian Floorplan Lender” means an Australian Lender that has a Australian Floorplan Commitment or that has an outstanding Australian Floorplan Loan.
Schedule 1 – Defined Terms Page 7 “Australian Floorplan Loans” has the meaning specified therefor in Section 2.2.2(a) of the Agreement. “Australian Floorplan Overadvance” means, as of any date of determination, that the Australian Floorplan Usage is greater than any of the limitations set forth in Section 2.2 or Section 2.11. “Australian Floorplan Swing Lender” means Bank of America or any other Australian Lender that, at the request of Australian Borrowers and with the consent of Agent agrees, in such Australian Lender’s sole discretion, to become the Australian Floorplan Swing Lender under Section 2.3(b)(iii) of the Agreement. “Australian Floorplan Swing Loan” has the meaning specified therefor in Section 2.3(b)(iii) of the Agreement. “Australian Floorplan Usage” means as of any date of determination, the amount of outstanding Australian Floorplan Loans (inclusive of Australian Floorplan Swing Loans and Australian Protective Floorplan Advances). “Australian General Security Deed” means the general security deed between each Loan Party incorporated in Australia and the Australian Security Trustee dated on or about the dated of this Agreement. “Australian LC Subline” means $10,000,000. “Australian Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit issued at the request of an Australian Borrower. “Australian Lender” means each Australian Floorplan Lender and/or each Australian Revolver Lender, as the context requires. “Australian Maximum Credit Amount” means, as of any date of determination, an amount equal to (a) the Australian Maximum Revolver Amount plus (b) the Australian Maximum Floorplan Amount at such time. As of the Closing Date, the Australian Maximum Credit Amount is $70,000,000. “Australian Maximum Floorplan Amount” means $55,000,000, decreased by the amount of reductions in the Australian Floorplan Commitments made in accordance with Section 2.4(c) of the Agreement and increased in accordance with Sections 2.14 and 2.15 of the Agreement. “Australian Maximum Revolver Amount” means $15,000,000, decreased by the amount of reductions in the Australian Revolver Commitments made in accordance with Section 2.4(c) of the Agreement and increased in accordance with Sections 2.14 and 2.15 of the Agreement. “Australian Obligations” means, all Obligations of Australian Borrowers. “Australian Pension Plan” means a superannuation, retirement benefit or pension fund (whether established by deed or under any statute of Australia or any state or territory of Australia) contributed to by, or to which there is or may be an obligation to contribute by, any Australian Loan Party in respect of its Australian employees and officers or former employees and officers.
Schedule 1 – Defined Terms Page 8 “Australian PPSA” means the Personal Property Securities Act 2009 (Cth) of Australia. “Australian Priority Payables Reserve” means, as of any date of determination and only with respect to an Australian Loan Party, the amount of reserves deemed necessary or appropriate by the Agent in its Permitted Discretion for amounts secured which rank or are capable of ranking senior or pari passu in priority to the Liens on Australian Collateral granted to the Australian Security Trustee under the Australian Security Documents, including without limitation and without duplication, in the Permitted Discretion of the Agent, any such amounts due or which may become due and not paid for wages, long service leave, retrenchment, payment in lieu of notice, or vacation pay (including in all respects amounts protected by or payable pursuant to the Fair Work Act 2009 (Cth) of Australia, any preferential claims as set out in the Australian Corporations Act, amounts due or which may become due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Taxation Administration Act 1953 (Cth) of Australia (but excluding “Pay As You Go” withholding tax on salary and wages) and amounts in the future, currently or past due and not contributed, remitted or paid in respect of any Australian Pension Plan, together with any charges which may be levied by a Governmental Authority as a result of any default in payment obligations in respect of any Australian Pension Plan. “Australian Pro Rata Share” means, as of any date of determination: (a) with respect to a Lender’s obligation to make all or a portion of the Australian Revolver Loans, with respect to such Xxxxxx’s right to receive payments of interest, fees, and principal with respect to the Australian Revolver Loans, and with respect to all other computations and other matters related to the Australian Revolver Commitments or the Australian Revolver Loans, the percentage obtained by dividing (i) the Revolver Loan Exposure of such Lender by (ii) the aggregate Revolver Loan Exposure of all Lenders, (b) with respect to a Lender’s obligation to participate in the Letters of Credit, with respect to such Xxxxxx’s obligation to reimburse Issuing Bank, and with respect to such Xxxxxx’s right to receive payments of Letter of Credit Fees, and with respect to all other computations and other matters related to the Letters of Credit, the percentage obtained by dividing (i) the Floorplan Loan Exposure of such Lender by (ii) the aggregate Floorplan Loan Exposure of all Lenders; provided, that if all of the Floorplan Loans have been repaid in full and all Australian Floorplan Commitments have been terminated, but Letters of Credit remain outstanding, Australian Pro Rata Share under this clause shall be determined as if the Australian Floorplan Commitments had not been terminated and based upon the Australian Floorplan Commitments as they existed immediately prior to their termination, (c) with respect to a Lender’s obligation to make all” or a portion of the Australian Floorplan Loans, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect to the Australian Floorplan Loans, and with respect to all other computations and other matters related to the Australian Floorplan Commitments or the Australian Floorplan Loans, the percentage obtained by dividing (i) the Floorplan Loan Exposure of such Lender by (ii) the aggregate Floorplan Loan Exposure of all Lenders, and (d) with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under Section 15.7 of the Agreement), the percentage obtained by dividing (i) the sum of the Floorplan Loan Exposure of such Lender plus the Revolver Loan Exposure of such Lender by (ii) the sum of the aggregate Floorplan Loan Exposure of
Schedule 1 – Defined Terms Page 9 all Lenders plus the aggregate Revolver Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 13.1; provided, that if all of the Loans have been repaid in full, all Letters of Credit have been made the subject of Letter of Credit Collateralization, and all Commitments have been terminated, Australian Pro Rata Share under this clause shall be determined as if the Revolver Loan Exposures and the Floorplan Loan Exposures had not been repaid, collateralized, or terminated and shall be based upon the Revolver Loan Exposures and Floorplan Loan Exposures as they existed immediately prior to their repayment, collateralization, or termination. “Australian Required Lenders” means, at any time, Australian Lenders having or holding more than 50% of the sum of (a) the aggregate Revolver Loan Exposure of all Australian Lenders, plus (b) the aggregate Floorplan Loan Exposure of all Australian Lenders; provided, that (i) the Revolver Loan Exposure and Floorplan Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Australian Required Lenders, and (ii) at any time there are 2 or more Australian Lenders, “Australian Required Lenders” must include at least 2 Australian Lenders (who are not Affiliates of one another). “Australian Rate Margin” has the meaning set forth in the definition of Applicable Margin. “Australian Revolver Availability” means, as of any date of determination, the amount that the Australian Borrowers are entitled to borrow as Australian Revolver Loans under Section 2.1 of the Agreement (after giving effect to the then outstanding Australian Revolver Usage). “Australian Revolver Borrowing Base” means, with respect to any Australian Borrower, as of any date of determination, the result of: (a) 85% of the amount of Eligible Accounts owing to an Australian Borrower, less the amount, if any, of the Dilution Reserve with respect to an Australian Borrower, plus (b) 85% of the amount of Eligible Credit Card Accounts owing to an Australian Borrower, plus (c) the lesser of (i) the product of 75% multiplied by the value (calculated at the lower of cost or market on a basis consistent with Australian Borrower’s historical accounting practices) of Eligible Parts and Attachments Inventory owned by an Australian Borrower at such time, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent inventory appraisal ordered and obtained by Agent multiplied by the value of Eligible Parts and Attachments Inventory owned by an Australian Borrower at such time (such determination may be made as to different categories of Eligible Parts and Attachments Inventory owned by an Australian Borrower based upon the Net Recovery Percentage applicable to such categories) at such time, plus (d) if requested by the Australian Borrower to the Agent as noted in the then current Australian Revolver Borrowing Base Certificate (any such included request, an “Australian Revolver Borrowing Base Reallocation Notice”), a portion of the positive amount, if any, by which the U.S. Revolver Availability exceeds the total U.S. Revolver Usage of all U.S. Lenders on the date of such request and a portion of the positive amount, if any, by which the U.S. Floorplan Availability exceeds the total U.S. Floorplan Usage of all U.S. Lenders on the date of such request, may be reallocated to the Australian Revolver Borrowing Base (without duplication of any such amounts reallocated to the Australian Floorplan Borrowing Base); provided that a Australian Revolver Borrowing Base
Schedule 1 – Defined Terms Page 10 Reallocation Notice may only be delivered once in any calendar month and no more than six times in any Calendar year, and shall set forth the requested reallocation, and which reallocation shall become effective upon confirmation by the Agent that such reallocation would not cause the U.S. Revolver Usage to exceed the U.S. Revolver Borrowing Base, the U.S. Floorplan Usage to exceed the U.S. Floorplan Borrowing Base or the Australian Aggregate Usage to exceed the Australian Aggregate Borrowing Base, and which reallocation shall remain effective thereafter until such time, if any, as a new Australian Revolver Borrowing Base Reallocation Notice is received and has become effective; provided further that a Reserve against the U.S. Floorplan Borrowing Base or U.S. Revolver Borrowing Base, as applicable, shall be implemented in an amount equal to such amount so reallocated, minus (e) the aggregate amount of Receivables Reserves, Bank Product Reserves, Inventory Reserves, Cash Settlement Reserves and other Reserves, if any, established by Agent under Section 2.1(c) of the Agreement with respect to the Australian Revolver Borrowing Base. “Australian Revolver Borrowing Base Certificate” means a certificate in the form of Exhibit B- 1(ii). “Australian Revolver Commitment” means, with respect to each Australian Revolver Lender, its Australian Revolver Commitment, and, with respect to all Australian Revolver Lenders, their Australian Revolver Commitments, in each case as such Dollar amounts are set forth beside such Australian Revolver Lender’s name under the applicable heading on Schedule C-2 to the Agreement or in the Assignment and Acceptance pursuant to which such Australian Revolver Lender became a Australian Revolver Lender under the Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement and reallocations made in accordance with the provisions of Section 2.4(g) of the Agreement. “Australian Revolver Overadvance” means, as of any date of determination, that the Australian Revolver Usage is greater than any of the limitations set forth in Section 2.1. “Australian Revolver Usage” means, as of any date of determination, the sum of (a) the amount of outstanding Australian Revolver Loans (inclusive of Australian Protective Revolver Advances), plus (b) the amount of the Australian Letter of Credit Usage. “Australian Revolver Lender” means a Lender that has a Australian Revolver Loan Commitment or that has an outstanding Australian Revolver Loan. “Australian Revolver Loans” has the meaning specified therefor in Section 2.1.2(a) of the Agreement. “Australian Security Documents” means the Australian General Security Deed and the Australian Specific Security Deed. “Australian Security Trust Deed” means the security trust deed dated or about the date of this Agreement between, among others, the Australian Borrowers, the Agent and the Australian Security Trustee. “Australian Security Trustee” has the meaning given to that term in the preamble.
Schedule 1 – Defined Terms Page 11 “Australian Specific Security Deed” means the specific security deed between Titan and the Australian Security Trustee in relation to the shares held by Titan in Titan Machinery Holdings Australia Pty Ltd ACN 670 778 426. “Australian Supermajority Lenders” means, at any time, Australian Lenders having or holding more than 66 2/3% of the sum of (a) the aggregate Revolver Loan Exposure of all Australian Lenders, plus (b) the aggregate Floorplan Loan Exposure of all Australian Lenders; provided, that (i) the Revolver Loan Exposure and Floorplan Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Australian Required Lenders, and (ii) at any time there are 2 or more Australian Lenders, “Supermajority Lenders” must include at least 2 Australian Lenders (who are not Affiliates of one another). “Australian Tax Act” means the Income Tax Assessment Act 1936 (Cth) of Australia or the Income Tax Assessment Act 1997 (Cth) of Australia, as relevant. “Australian Tax Consolidated Group” means a “Consolidated Group” or an “MEC Group” as defined in the applicable Australian Tax Act. “Australian TFA” means a tax funding agreement between the members of an Australian Tax Consolidated Group which includes (a) reasonably appropriate arrangements for the funding of tax payments by the “head company” (as defined in the applicable Australian Tax Act) having regard to the position of each member of the applicable Australian Tax Consolidated Group; and (b) an undertaking from each member of the Australian Tax Consolidated Group to compensate each other member adequately for loss of tax attributes (including tax losses and tax offsets) as a result of being a member of the Australian Tax Consolidated Group. “Australian TSA” means an agreement between the members of an Australian Tax Consolidated Group which takes effect as a tax sharing agreement under section 721-25 of the applicable Australian Tax Act and complies with the applicable Australian Tax Act and any applicable law, official directive, request, guideline or policy (whether or not having the force of law) issued in connection with the applicable Australian Tax Act. “Authorized Person” means any one of the individuals identified on Schedule A-2 to the Agreement, as such schedule is updated from time to time by written notice from Borrowers to Agent. “Available Currency” means (a) in the case of a U.S. Borrower, Dollars and (b) in the case of an Australian Borrower, Australian Dollars. “Available Increase Amount” means, as of any date of determination, an amount equal to the result of (a) $100,000,000 minus (b) the aggregate principal amount of Increases to the U.S. Revolver Commitments or U.S. Floorplan Commitments previously made pursuant to Section 2.14 of the Agreement. “Average Adjusted Excess Availability” means, with respect to any period, the sum of the aggregate amount of Adjusted Excess Availability for each Business Day in such period (calculated as of the end of each respective Business Day) divided by the number of Business Days in such period. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Schedule 1 – Defined Terms Page 12 “Bail-In Legislation” 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 for such EEA Member Country from time to time which is described in the EU Bail- In Legislation Schedule. “Bank of America” means Bank of America, N.A. “Bank Product” means any one or more of the following financial products or accommodations extended to Borrowers or its Subsidiaries by a Bank Product Provider: (a) credit cards (including commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”)), (b) credit card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, (f) transactions under Hedge Agreements, including without limitation the Existing Hedge Agreements, (g) leases and (h) supply chain financing and similar arrangements. “Bank Product Agreements” means those agreements entered into from time to time by Borrowers or its Subsidiaries with a Bank Product Provider in connection with the obtaining of any of the Bank Products. “Bank Product Collateralization” means providing cash collateral (pursuant to documentation reasonably satisfactory to Agent) to be held by Agent for the benefit of the Bank Product Providers (other than the Hedge Providers) in an amount determined by Agent as sufficient to satisfy the reasonably estimated credit exposure with respect to the then existing Bank Product Obligations (other than Hedge Obligations). “Bank Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by Borrowers or its Subsidiaries to any Bank Product Provider pursuant to or evidenced by a Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to Borrowers or its Subsidiaries; provided, in order for any item described in clauses (a) (b), or (c) above, as applicable, to constitute “Bank Product Obligations”, if the applicable Bank Product Provider is any Person other than Bank of America or its Affiliates, then the applicable Bank Product must have been provided on or after the Closing Date and Agent shall have received a Bank Product Provider Agreement within 10 days after the date of the provision of the applicable Bank Product to Borrowers or its Subsidiaries. “Bank Product Provider” means any Lender or any of its Affiliates, including each of the foregoing in its capacity, if applicable, as a Hedge Provider; provided, that no such Person (other than Bank of America or its Affiliates) shall constitute a Bank Product Provider with respect to a Bank Product unless and until (a) in the case of a Bank Product Agreement in existence as of the Closing Date, Agent receives a Bank Product Provider Agreement from such Person and with respect to the applicable Bank Product within 10 days after the Closing Date and (b) in the case of a Bank Product Agreement entered into after the Closing Date, Agent receives a Bank Product Provider Agreement from such Person and with respect to the applicable Bank Product within 10 days after the provision of such Bank Product to Borrowers or its Subsidiaries; provided further, that if, at any time, a Lender ceases to be a Lender under the Agreement, then, from and after the date on which it ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Bank Product Providers and the
Schedule 1 – Defined Terms Page 13 obligations with respect to Bank Products provided by such former Lender or any of its Affiliates shall no longer constitute Bank Product Obligations. “Bank Product Provider Agreement” means an agreement in substantially the form attached hereto as Exhibit B-4 to the Agreement, in form and substance satisfactory to Agent, duly executed by the applicable Bank Product Provider, Borrowers, and Agent. “Bank Product Reserves” means, as of any date of determination, those reserves that (i) with respect to Bank Products provided by any Person other than Xxxxx Fargo, Agent deems necessary or appropriate to establish (based upon the Bank Product Providers’ determination of the liabilities and obligations of Borrowers and its Subsidiaries in respect of Bank Product Obligations) in respect of Bank Products then provided or outstanding and (ii) with respect to Bank Products provided by Xxxxx Fargo, Xxxxx Fargo certifies to Agent in writing from time to time as being necessary or appropriate to establish (based upon Xxxxx Fargo’s determination of the liabilities and obligations of Borrowers and its Subsidiaries in respect of Bank Product Obligations under such Bank Products) in respect of such Bank Products then provided or outstanding; provided, that under this clause (ii) the establishment of such reserves shall not (x) be in an aggregate amount greater than $12,000,000 without the written approval of Agent or Borrowers, (y) result in the commencement of a Triggering Event or (z) result in an Overadvance. “Bankruptcy Code” means title 11 of the United States Code, as in effect from time to time. “Base Rate” means for any day, a per annum rate equal to the greater of (a) the Prime Rate for such day; (b) the Federal Funds Rate for such day, plus 0.50%; or (c) Term SOFR for a one month interest period as of such day, plus 1.00%; provided, that in no event shall the Base Rate be less than zero. “Base Rate Margin” has the meaning set forth in the definition of Applicable Margin. “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. §1010.230. “Benefit Plan” means a “defined benefit plan” (as defined in Section 3(35) of ERISA) for which Borrowers or any of its Subsidiaries or ERISA Affiliates has been an “employer” (as defined in Section 3(5) of ERISA) within the past six years. “Bill Rate Notice” means a written notice in the form of Exhibit L-1 to the Agreement. “Bill Rate Option” has the meaning specified therefor in Section 2.12(a) of the Agreement. “Board of Directors” means, as to any Person, the board of directors (or comparable managers) of such Person, or any committee thereof duly authorized to act on behalf of the board of directors (or comparable managers). “Board of Governors” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
Schedule 1 – Defined Terms Page 14 “Borrower” means, individually, each of the US Borrowers and Australian Borrowers and “Borrowers” shall mean collectively, all US Borrowers and Australian Borrowers. “Borrower Agent” means Titan. “Borrower Materials” has the meaning specified therefor in Section 17.9(c) of the Agreement. “Borrowing” means a borrowing consisting of Revolver Loans or Floorplan Loans made on the same day by the Lenders (or Agent on behalf thereof), or by a U.S. Swing Lender in the case of a Swing Loan, or by Agent in the case of an Extraordinary Advance. “Borrowing Base Certificate(s)” means the U.S. Revolver Borrowing Base Certificate(s), Australian Revolver Borrowing Base Certificate(s), U.S. Floorplan Borrowing Base Certificate(s), and Australian Floorplan Borrowing Base Certificate(s). “Business Day” means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the States of North Carolina and California and if such day relates to any interest rate settings as to a Loan denominated in Australian Dollars, means a day other than a day banks are closed for general business in Sydney, Australia and Hong Kong. “CAM Exchange” has the meaning given thereto in Section 18.4(a). “CAM Exchange Date” has the meaning given thereto in Section 18.4(a). “CAM Percentage” has the meaning given thereto in Section 18.4(a). “Capital Expenditures” means, with respect to any Person for any period, the amount of all expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed; provided, that Capital Expenditures shall not include (a) expenditures for the acquisition of Inventory (including Equipment and other assets such as replacements, capitalized repairs and improvements) that is purchased and held for sale or lease to a Person that is not an Affiliate, (b) expenditures made during such period in connection with the replacement, substitution, or restoration of assets or properties in accordance with the reinvestment provisions of Section 2.4(e)(ii) of the Agreement, including such expenditures made with insurance proceeds, (c) with respect to the purchase price of assets that are purchased substantially contemporaneously with the trade-in of existing assets during such period, the amount that the gross amount of such purchase price is reduced by the credit granted by the seller of such assets for the assets being traded in at such time, (d) expenditures made during such period to consummate one or more Permitted Acquisitions, (e) capitalized software development costs to the extent such costs are deducted from net earnings under the definition of EBITDAR for such period, and (f) expenditures during such period that, pursuant to a written agreement, are reimbursed by a third Person (excluding Borrowers or any of its Affiliates). “Capitalized Lease Obligation” means that portion of the obligations under a Capital Lease that is required to be capitalized in accordance with GAAP. “Capital Lease” means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.
Schedule 1 – Defined Terms Page 15 “Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within 1 year from the date of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within 1 year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Group (“S&P”) or Xxxxx’x Investors Service, Inc. (“Xxxxx’x”), (c) commercial paper maturing no more than 270 days from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 from S&P or at least P-1 from Moody’s, (d) certificates of deposit, time deposits, overnight bank deposits or bankers’ acceptances maturing within 1 year from the date of acquisition thereof issued by any bank organized under the laws of the United States or any state thereof or the District of Columbia or any United States branch of a foreign bank having at the date of acquisition thereof combined capital and surplus of not less than $1,000,000,000, (e) Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States, Australia or any state thereof so long as the full amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (0 repurchase obligations of any commercial bank satisfying the requirements of clause (d) of this definition or recognized securities dealer having combined capital and surplus of not less than $1,000,000,000, having a term of not more than seven days, with respect to securities satisfying the criteria in clauses (a) or (d) above, (g) debt securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above, and (h) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (g) above. “Cash Management Services” means any cash management or related services including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e- payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other customary cash management arrangements. “Cash Settlement Reserves” means, as of any date of determination, those reserves relating to cash receipts of Accounts that are collateral for the DLL Floorplan Indebtedness, the CNH Floorplan Indebtedness, the NAB Indebtedness or any other Indebtedness, and that are deposited in any Deposit Account of a U.S. Borrower or the Australian Borrower subject to a Control Agreement and that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Sections 2.1.1(c), 2.1.2(c), 2.2.1(c) and 2.2.2(c), to establish and maintain with respect to Eligible Accounts owed to a: (a) U.S. Borrower, the U.S. Revolver Borrowing Base, the U.S. Maximum Revolver Amount, the U.S. Floorplan Borrowing Base or the U.S. Maximum Floorplan Amount; or (b) Australian Borrower, the Australian Revolver Borrowing Base, the Australian Maximum Revolver Amount, the Australian Floorplan Borrowing Base or the Australian Floorplan Commitment. “CFC” means a controlled foreign corporation (as that term is defined in the IRC).
Schedule 1 – Defined Terms Page 16 “Change in Control” means that: (a) any Person or two or more Persons acting in concert, shall have acquired beneficial ownership, directly or indirectly, of Equity Interests of Borrowers (or other securities convertible into such Equity Interests) representing 35% or more of the combined voting power of all Equity Interests of Borrowers entitled (without regard to the occurrence of any contingency) to vote for the election of members of the Board of Directors of Borrowers; (b) any Person or two or more Persons acting in concert, shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Borrowers or control over the Equity Interests of such Person entitled to vote for members of the Board of Directors of Borrowers on a fully-diluted basis (and taking into account all such Equity Interests that such Person or group has the right to acquire pursuant to any option right) representing 35% or more of the combined voting power of such Equity Interests; or (c) during any period of 24 consecutive months commencing on or after the Closing Date, the occurrence of a change in the composition of the Board of Directors of Borrowers such that a majority of the members of such Board of Directors are not Continuing Directors; or (d) Borrowers fail to own and control, directly or indirectly, 100% of the Equity Interests of each other Loan Party. “Change in Law” means the occurrence after the date of the Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial ruling, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, judgment or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, or (c) the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided that notwithstanding anything in the Agreement to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives concerning capital adequacy 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 shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued. “Closing Date” means the date of the making of the initial Loans (or other extension of credit) under the Agreement. “CME” means CME Group Benchmark Administration Limited. “CNH” means, collectively, CNH Industrial Capital America LLC and CNHI International S.A. “CNH Intercreditor Agreement” means that certain Second Amended and Restated Intercreditor Agreement, dated as of the Original Closing Date, by and among CNH, Agent and U.S. Borrowers.
Schedule 1 – Defined Terms Page 17 “CNH Floorplan Indebtedness” means Indebtedness owing to CNH in respect of floorplan financing facilities and parts revolver facility provided by CNH to the Borrowers and their Subsidiaries in an aggregate amount not exceeding $1,250,000,000 at any time outstanding. “Co-Documentation Agents” has the meaning set forth in the preamble to the Agreement. “Code” means the New York Uniform Commercial Code, as in effect from time to time. “Collateral” means, individually and collectively, the U.S. Collateral and the Australian Collateral. “Collateral Access Agreement” means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor, consignee, or other Person in possession of, having a Lien upon, or having rights or interests in Borrowers’ or any of its Subsidiaries’ books and records, Equipment, or Inventory, in each case, in form and substance reasonably satisfactory to Agent or Australian Security Trustee, as applicable. “Commitment” means, individually or collectively as required by the context, the U.S. Revolver Commitment, Australian Revolver Commitment, U.S. Floorplan Commitment, and/or the Australian Floorplan Commitment, as applicable. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1, et seq., as in effect from time to time). “Competitor” means any Person which is a direct competitor of Borrowers or its Subsidiaries if, at the time of a proposed assignment, Agent and the assigning Lender have actual knowledge that such Person is a direct competitor of Borrowers or its Subsidiaries; provided, that (i) in connection with any assignment or participation, the Assignee or Participant with respect to such proposed assignment or participation that is an investment bank, a commercial bank, a finance company, a fund, or other Person which merely has an economic interest in any such direct competitor, and is not itself such a direct competitor of Borrowers or its Subsidiaries, shall not be deemed to be a direct competitor for the purposes of this definition, and (ii) Borrowers’ consent to an assignment to any Person under Section 13.1 shall be deemed to be Borrowers’ acknowledgment that such assignee is not a Competitor. “Compliance Certificate” means a certificate substantially in the form of Exhibit C-1 to the Agreement delivered by the chief financial officer of Borrowers to Agent. “Confidential Information” has the meaning specified therefor in Section 17.9(a) of the Agreement. “Conforming Changes” with respect to use, administration of or conventions associated with SOFR, Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of Base Rate, SOFR, Term SOFR and Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of Business Day and U.S. Government Securities Business Day, timing of borrowing requests or prepayment, conversion or continuation notices, and length of lookback periods) as may be appropriate, in Agent's discretion, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent determines that adoption of any
Schedule 1 – Defined Terms Page 18 portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as Agent determines is reasonably necessary in connection with the administration of any Loan Document). “Continuing Director” means (a) any member of the Board of Directors who was a director (or comparable manager) of Borrowers on the Closing Date, and (b) any individual who becomes a member of the Board of Directors after the Closing Date if such individual was approved, appointed or nominated for election to the Board of Directors by a majority of the Continuing Directors. “Control Agreement” means a control agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by Borrowers or one of its Subsidiaries, Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account). “Copyright Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement. “Cores Inventory” means Inventory consisting of rebuilt or refurbished parts. “Covenant/Dominion Threshold Amount” means an amount equal to 15% of the lesser of (i) Global Borrowing Base and (ii) Global Maximum Credit Amount. “Credit Card Agreements” means all agreements now or hereafter entered into by any Loan Party for the benefit of a Loan Party, in each case with any Credit Card Issuer or any Credit Card Processor. “Credit Card Issuer” means any Person (other than a Loan Party) who issues or whose members issue credit cards or debit cards, including MasterCard, Visa, American Express, Discover, Diners Club, Xxxxx Xxxxxxx and Citi. “Credit Card Notification” means, collectively, the notices to Credit Card Issuers or Credit Card Processors who are parties to Credit Card Agreements, in a form reasonably satisfactory to the Agent, pursuant to which such Credit Card Issuers or Credit Card Processors, as applicable, are directed by Borrowers to transfer all payments due from Credit Card Processors to a Deposit Account subject to a Control Agreement. “Credit Card Processor” means any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to any Loan Party’s sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer. “Credit Card Accounts” means all present and future rights of any Loan Party to payment from any Credit Card Issuer, Credit Card Processor or other third party in connection with the sale or transfer of Accounts arising pursuant to the sale of goods or rendition of services to customers who have purchased such goods or services using a credit card or a debit card, including, but not limited to, all amounts at any time due or to become due from any Credit Card Issuer or Credit Card Processor under the Credit Card Agreements or otherwise, in each case above calculated net of prevailing interchange charges.
Schedule 1 – Defined Terms Page 19 “Credit Party” means has the meaning as defined in Section 15.20. “Daily Simple SOFR” with respect to any applicable determination date, the secured overnight financing rate published on the FRBNY website (or any successor source satisfactory to Agent). “Default” means an event, condition, or default that, with the giving of notice, the passage of time, or both, would be an Event of Default. “Defaulting Lender” means any Lender that (a) has failed to fund any amounts required to be funded by it under the Agreement on the date that it is required to do so under the Agreement (including the failure to make available to Agent amounts required pursuant to a Settlement or to make a required payment in connection with a Letter of Credit Disbursement), (b) notified Borrowers, Agent, or any Lender in writing that it does not intend to comply with all or any portion of its funding obligations under the Agreement, (c) has made a public statement to the effect that it does not intend to comply with its funding obligations under the Agreement or under other agreements generally (as reasonably determined by Agent) under which it has committed to extend credit, (d) failed, within 1 Business Day after written request by Agent, to confirm that it will comply with the terms of the Agreement relating to its obligations to fund any amounts required to be funded by it under the Agreement, (e) otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by it under the Agreement on the date that it is required to do so under the Agreement, or (f) (i) becomes or is insolvent or has a parent company that has become or is insolvent, (ii) becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or custodian or appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or (iii) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action. “Defaulting Lender Rate” means (a) for the first 3 days from and after the date the relevant payment is due, the Base Rate, and (b) thereafter, the interest rate then applicable to Loans that are U.S. Base Rate Loans or Australian Base Rate Loans, as applicable (inclusive of the Base Rate Margin or Australian Rate Margin applicable thereto). “Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware. “Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division. “Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act. “Deposit Account” means any deposit account (as that term is defined in the Code) or ADI account (as that term is defined in the Australian PPSA). “Designated Account” means the Deposit Account of Borrowers identified on Schedule D-1 to the Agreement (or such other Deposit Account of Borrowers located at Designated Account Bank that has been designated as such, in writing, by Borrowers to Agent).
Schedule 1 – Defined Terms Page 20 “Designated Account Bank” has the meaning specified therefor in Schedule D-1 to the Agreement (or such other bank that is located within the United States that has been designated as such, in writing, by Borrowers to Agent). “Dilution” means, as of any date of determination, a percentage, based upon the experience of the. immediately prior 12 months, that is the result of dividing the Dollar amount of (a) bad debt write- downs, discounts, advertising allowances, credits, or other dilutive items with respect to Borrowers’ Accounts during such period, by (b) Borrowers’ xxxxxxxx with respect to Accounts during such period. “Dilution Reserve” means, as of any date of determination, an amount sufficient to reduce the advance rate against Eligible Accounts by 1 percentage point for each percentage point by which Dilution is in excess of 5%. “Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests into which they are convertible or for which they are exchangeable), or upon the happening of any event or condition (a) matures or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provide for the scheduled payments of dividends in cash, or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 180 days after the Maturity Date. “DLL” means DLL Finance LLC. “DLL Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Original Closing Date, by and among DLL, Agent and U.S. Borrowers, and any replacement thereof entered into in connection with the DLL Floorplan Indebtedness or any Permitted Refinancing thereof. “DLL Floorplan Indebtedness” means Indebtedness owing to DLL in respect of a floorplan financing facility provided by DLL to U.S. Borrowers in an aggregate amount not exceeding $200,000,000 at any time outstanding. “Dollars” or “$” means United States dollars. “Drawing Document” means any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit. “Earn-Outs” shall mean unsecured liabilities of a Loan Party arising under an agreement to make any deferred payment as a part of the Purchase Price for a Permitted Acquisition, including performance bonuses or consulting payments in any related services, employment or similar agreement, in an amount that is subject to or contingent upon the revenues, income, cash flow or profits (or the like) of the target of such Permitted Acquisition.
Schedule 1 – Defined Terms Page 21 “EBITDAR” means, with respect to any fiscal period: (a) Borrowers’ consolidated net earnings (or loss), minus (b) without duplication, the sum of the following amounts of Borrowers for such period to the extent included in determining consolidated net earnings (or loss) for such period: (i) any extraordinary, unusual, or non-recurring gains, (ii) interest income, (iii) exchange, translation or performance gains relating to any hedging transactions or foreign currency fluctuations, (iv) income arising by reason of the application of FAS 141R, and (v) net gains resulting from the sale or disposition of any fixed assets comprising Capital Expenditures or Rental Fleet Equipment, plus (c) without duplication, the sum of the following amounts of Borrowers for such period to the extent included in determining consolidated net earnings (or loss) for such period: (i) any extraordinary, unusual, or non-recurring non-cash losses, (ii) Interest Expense and Floorplan Interest Expense, (iii) tax expense based on income, profits or capital, including federal, foreign, state, franchise and similar taxes (and for the avoidance of doubt, specifically excluding any sales taxes or any other taxes held in trust for a Governmental Authority), (iv) depreciation and amortization for such period, (v) with respect to any Permitted Acquisition after the Closing Date, costs, fees, charges, or expenses consisting of out-of-pocket expenses owed by Borrowers or any of its Subsidiaries to any Person for services performed by such Person in connection with such Permitted Acquisition incurred within 180 days of the consummation of such Permitted Acquisition, up to an aggregate amount for all such items for such Permitted Acquisition not to exceed $2,500,000, (vi) with respect to any Permitted Acquisitions after the Closing Date: (A) purchase accounting adjustments, including, without limitation, a dollar for dollar adjustment for that portion of revenue that would have been recorded in the relevant period had the balance of deferred revenue (unearned income) recorded on the closing balance sheet and before application of purchase accounting not been adjusted downward to fair value to be recorded on the opening balance sheet in accordance with GAAP purchase accounting rules; and (B) non-cash adjustments in accordance with GAAP purchase accounting rules under FASB Statement No. 141 and EITF Issue No. 01-3, in the event that
Schedule 1 – Defined Terms Page 22 such an adjustment is required by Borrowers’ independent auditors, in each case, as determined in accordance with GAAP, (vii) fees, costs, charges and expenses, in respect of Earn-Outs incurred in connection with any Permitted Acquisition to the extent permitted to be incurred under the Agreement that are required by the application of FAS 141R to be and are expensed by Borrowers and its Subsidiaries, (viii) non-cash compensation expense (including deferred non-cash compensation expense), or other non-cash expenses or charges, arising from the sale or issuance of Equity Interests, the granting of stock options, and the granting of stock appreciation rights and similar arrangements (including any repricing, amendment, modification, substitution, or change of any such Equity Interests, stock option, stock appreciation rights, or similar arrangements) minus the amount of any such expenses or charges when paid in cash to the extent not deducted in the computation of net earnings (or loss), (ix) one-time non-cash restructuring charges, (x) non-cash exchange, translation, or performance losses relating to any hedging transactions or foreign currency fluctuations, (xi) non-cash losses on sales of fixed assets or write-downs of fixed or intangible assets, (xii) Rent Expense, (xiii) cash restructuring charges not to exceed $5,000,000 in any 12 month period, (xiv) Ukraine currency remeasurement costs not to exceed $5,000,000 in any 12 month period, (xv) Rent-to-Own Expense, in each case, determined on a consolidated basis in accordance with GAAP, and (xvi) net non-cash losses resulting from the sale or disposition of any fixed assets comprising Capital Expenditures or Rental Fleet Equipment. For the purposes of calculating EBITDAR for any period of 12 consecutive fiscal months (each, a “Reference Period”), if at any time during such Reference Period (and after the Closing Date), Borrowers or any of its Subsidiaries shall have made a Permitted Acquisition, EBITDAR for such Reference Period shall be calculated after giving pro forma effect thereto (including pro forma adjustments arising out of events which are directly attributable to such Permitted Acquisition, are factually supportable, and are expected to have a continuing impact, in each case determined on a basis consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as interpreted by the staff of the SEC or in such other manner acceptable to Agent) as if any such Permitted Acquisition or adjustment occurred on the first day of such Reference Period. “EEA Financial Institution” (means a) any credit institution or investment firm established in an EEA Member Country that is subject to the supervision of an EEA Resolution Authority; (b) any
Schedule 1 – Defined Terms Page 23 entity established in an EEA Member Country that is a parent of an institution described in clause (a) above; or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in the foregoing clauses 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 an EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Election Date” means, with respect to either Eligible Real Property or Eligible Rolling Stock/Equipment, the first date on which each such item is included in the calculation of the U.S. Revolver Borrowing Base as determined by Agent and U.S. Borrowers, whether such election is made pursuant to this Agreement or the Existing Credit Agreement. “Eligible Accounts” means those Accounts created by any Loan Party in the ordinary course of its business, that arise out of such Loan Party’s sale of goods or rendition of services, that comply with each of the representations and warranties respecting Eligible Accounts made in the Loan Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any field examination performed by (or on behalf of) Agent from time to time after the Closing Date. In determining the amount to be included, Eligible Accounts shall be calculated net of customer deposits, unapplied cash, taxes, discounts, credits, allowances, and rebates. Eligible Accounts shall not include the following: (a) (i) Accounts (other than Extended Terms Accounts) that the Account Debtor has failed to pay within 90 days of original invoice date, (ii) Extended Terms Accounts that the Account Debtor has failed to pay within the earlier of (A) 30 days of original due date or (B) 120 days of original invoice date, or (iii) Extended Terms Accounts with selling terms of more than 90 days, (b) Accounts owed by an Account Debtor (or its Affiliates) where 50% or more of all Accounts owed by that Account Debtor (or its Affiliates) are deemed ineligible under clause (a) above, (c) Accounts with respect to which the Account Debtor is an Affiliate of any Loan Party or an employee or agent of any Loan Party or any Affiliate of any Loan Party, (d) Accounts arising in a transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other terms by reason of which the payment by the Account Debtor may be conditional, (e) Accounts that are not payable in Dollars or Australian Dollars, (f) Accounts with respect to which the Account Debtor either (i) does not maintain its chief executive office in the United States, Canada or Australia, or (ii) is not organized under the laws of the United States or any state thereof, or Canada or any province thereof, or (iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof,
Schedule 1 – Defined Terms Page 24 unless (A) the Account is supported by an irrevocable letter of credit reasonably satisfactory to Agent (as to form, substance, and issuer or domestic confirming bank) that has been delivered to Agent and is directly drawable by Agent, or (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, reasonably satisfactory to Agent, (g) Accounts with respect to which the Account Debtor is either (1) any state of the United States, any municipality, or any other political subdivision of either thereof, or any department, agency, public corporation or other instrumentality thereof, to the extent that the aggregate amount of such Accounts exceeds $10,000,000 at any time outstanding, or (ii) the United States or any department, agency, or instrumentality of the United States (exclusive, however, of Accounts with respect to which Borrowers or other Loan Party has complied, to the reasonable satisfaction of Agent, with the Assignment of Claims Act, 31 USC §3727), (h) Accounts with respect to which the Account Debtor is a creditor of any Loan Party, has or has asserted a right of recoupment or setoff, or has disputed its obligation to pay all or any portion of the Account, to the extent of such claim, right of recoupment or setoff, or dispute, (i) Accounts with respect to an Account Debtor (other than receivables owing from a manufacturer to a Loan Party) whose total obligations owing to the Loan Parties exceed 10% (such percentage, as applied to a particular Account Debtor, being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtor deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, that, in each case, the amount of Eligible Accounts that are excluded because they exceed the foregoing percentage shall be determined by Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit, (j) Accounts with respect to which the Account Debtor is subject to an Insolvency Proceeding, is not Solvent, has gone out of business, or as to which any Loan Party has received notice of an imminent Insolvency Proceeding or a material impairment of the financial condition of such Account Debtor, (k) Accounts, the collection of which, Agent, in its Permitted Discretion, believes to be doubtful, including by reason of the Account Debtor’s financial condition, (l) Accounts that are not subject to a valid and perfected first priority Agent’s Lien, (m) Accounts with respect to which (i) the goods giving rise to such Account have not been shipped and billed to the Account Debtor, or (ii) the services giving rise to such Account have not been performed and billed to the Account Debtor, (n) Accounts with respect to which the Account Debtor is a Sanctioned Person or Sanctioned Entity, (o) Accounts that represent the right to receive progress payments or other advance xxxxxxxx that are due prior to the completion of performance by the applicable Loan Party of the subject contract for goods or services,
Schedule 1 – Defined Terms Page 25 (p) that portion of Accounts that has been restructured, extended, amended or modified, other than Accounts extended as a result of marketing campaigns entered into in the ordinary course of business, or (q) Accounts owned by a target acquired in connection with a Permitted Acquisition, until the completion of an appraisal and field examination, or other due diligence approved by Agent, with respect to such target, in each case, reasonably satisfactory to Agent (which appraisal, field examination or other due diligence may be conducted prior to the closing of such Permitted Acquisition). “Eligible Credit Card Accounts” means, as to each Loan Party, Credit Card Accounts of such Person which satisfy the criteria set forth below: (a) such Credit Card Accounts arise from the actual and bona fide sale and delivery of goods or rendition of services by such Person in the ordinary course of the business of such Person; (b) such Credit Card Accounts are not past due (beyond any stated applicable grace period, if any, therefor) pursuant to the terms set forth in the Credit Card Agreements with the Credit Card Issuer or Credit Card Processor of the credit card or debit card used in the purchase which give rise to such Credit Card Accounts; (c) such Credit Card Accounts are not unpaid more than five (5) Business Days after the date of the sale of goods or rendition of services giving rise to such Credit Card Accounts; (d) the Credit Card Issuer or Credit Card Processor obligated in respect of such Credit Card Account has not failed to remit any monthly payment in respect of such Credit Card Account; (e) the Credit Card Issuer or Credit Card Processor with respect to such Credit Card Account has not asserted a counterclaim, defense or dispute against such Credit Card Accounts (other than customary set-offs to fees and chargebacks consistent with the practices of such Credit Card Issuer or Credit Card Processor with such Person from time to time), provided that the portion of the Credit Card Accounts owing by such Credit Card Issuer or Credit Card Processor in excess of the amount owing by such Person to such Credit Card Issuer or Credit Card Processor pursuant to such fees and chargebacks shall be deemed Eligible Credit Card Accounts; (f) the Credit Card Issuer or Credit Card Processor with respect to such Credit Card Account has not set off against amounts otherwise payable by such Credit Card Issuer or Credit Card Processor to such Person for the purpose of establishing a reserve or collateral for obligations of such Person to such Credit Card Issuer or Credit Card Processor (other than customary set-offs and chargebacks consistent with the practices of such Credit Card Issuer or Credit Card Processor from time to time), provided that the portion of the Credit Card Accounts owing by such Credit Card Issuer or Credit Card Processor in excess of the set-off amounts shall be deemed Eligible Credit Card Accounts; (g) such Credit Card Accounts (i) are owned by a Loan Party and such Person has a good title to such Credit Card Account and (ii) are subject to a valid and perfected first priority Agent’s Lien, (h) the Credit Card Issuer or Credit Card Processor with respect to such Credit Card Accounts is not subject to an Insolvency Proceeding, is Solvent, has not gone out of business, or as to
Schedule 1 – Defined Terms Page 26 which no Loan Party has received notice of an imminent Insolvency Proceeding or a material impairment of the financial condition of such Credit Card Issuer or Credit Card Processor; (i) no event of default has occurred under the Credit Card Agreement of such Person with the Credit Card Issuer or Credit Card Processor who has issued the credit card or debit card or handles payments under the credit card or debit card used in the sale which gave rise to such Credit Card Account which event of default gives such Credit Card Issuer or Credit Card Processor the right to cease or suspend payments to such Person; (j) the customer using the credit card or debit card giving rise to such Credit Card Account shall not have returned the merchandise purchased giving rise to such Credit Card Account; (k) the Credit Card Accounts are subject to Credit Card Notifications; (l) the Credit Card Processor is organized and has its principal offices or assets within the United States; (m) such Credit Card Accounts are not evidenced by chattel paper or an instrument of any kind, and have not been reduced to judgment; and (n) the portion of such Credit Card Account that does not include a billing for interest, fees or late charges. “Eligible Inventory” means Inventory of any Loan Party, that complies with each of the representations and warranties respecting Eligible Inventory made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any field examination or appraisal performed by Agent from time to time after the Closing Date. In determining the amount to be so included, Inventory shall be valued at the lower of cost or market on a basis consistent with the historical accounting practices of the Loan Parties. An item of Inventory shall not be included in Eligible Inventory if: (a) a Loan Party does not have good, valid, and marketable title thereto, (b) other than with respect to Inventory subject to lease or rental, a Loan Party does not have actual and exclusive possession thereof (either directly or through a bailee or agent of such Loan Party), (c) it is not located at one of the locations in the continental United States or Australia set forth on Schedule 4.24 to the Agreement (as such Schedule 4.24 may be amended from time to time with the prior written consent of Agent) in violation of Section 5.14, and it is not in-transit except as provided in clause (d) below, (d) it is in-transit to or from a location of a Loan Party (other than in-transit from one location set forth on Schedule 4.24 to the Agreement to another location set forth on Schedule 4.24 to the Agreement), (e) it is located on real property leased by a Loan Party or in a contract warehouse, in each case, unless either (1) it is subject to a Collateral Access Agreement executed by the lessor or
Schedule 1 – Defined Terms Page 27 warehouseman, as the case may be, and it is segregated or otherwise separately identifiable from goods of others, if any, stored on the premises or (2) Agent has established a Landlord Reserve with respect to such location, (f) it is the subject of a bill of lading or other document of title, (g) it is not subject to a valid and perfected first priority Agent’s Lien, (h) it consists of goods returned or rejected by a Loan Party’s customers, (i) it consists of goods that are obsolete or slow moving, restrictive or custom items, work- in-process, raw materials, or goods that constitute spare parts, packaging and shipping materials, branded or promotional items, supplies used or consumed in a Loan Party’s business, Cores Inventory, bill and hold goods, defective goods, “seconds,” or Inventory acquired on consignment, (j) it is subject to third party trademark, licensing or other proprietary rights, unless Agent is satisfied that such Inventory can be freely sold by Agent on and after the occurrence of an Event of a Default despite such third party rights, (k) it was acquired in connection with a Permitted Acquisition, until the completion of an appraisal and field examination, or other due diligence approved by Agent, with respect to such Inventory, in each case, reasonably satisfactory to Agent (which appraisal, field examination and other due diligence may be conducted prior to the closing of such Permitted Acquisition), or (l) with respect to Rental Fleet Equipment, the applicable Loan Party has not complied with Section 7(m) of the Guaranty and Security Agreement with respect to any relevant certificates of title. “Eligible New Floorplan Equipment” means all Inventory owned by any Loan Party which (a) constitutes Eligible Inventory and (b) consists of New Floorplan Equipment. “Eligible Parts and Attachments Inventory” means all Inventory owned by any Loan Party which (a) constitutes Eligible Inventory and (b) consists of parts or attachments held by any Loan Party for sale to third parties other than Cores Inventory. “Eligible Real Property” means Real Property of any Loan Party, that complies with each of the representations and warranties respecting Real Property made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any field examination or appraisal performed by Agent from time to time after the Closing Date. An item of Real Property shall not be included in Eligible Real Property unless: (a) the applicable Loan Party Borrower owns fee title thereto; (b) the applicable Loan Party has executed and delivered to the Agent such Mortgages and other documents as the Agent may reasonably request; provided, that no Borrower shall have to deliver any Mortgage outside the U.S. or Australia;
Schedule 1 – Defined Terms Page 28 (c) the applicable Loan Party shall have delivered to the Agent with respect to each parcel of Eligible Real Property all Mortgage Related Documents and other Real Property items as required by FIRREA and reasonably satisfactory to the Agent; (d) the Agent has a perfected first priority Lien in such Real Property (subject only to Permitted Liens under clause (k) of the definition thereof); (e) such parcel of Real Property has been appraised by a third party appraiser engaged by the Agent or otherwise acceptable to the Agent in good faith; (f) as to any particular property, the Loan Party is in compliance with the representations, warranties and covenants set forth in Sections 4.11 and 5.9 hereof and in the Mortgage relating to such Real Property, unless the Agent, in its discretion, otherwise waives such requirement in the determination of Eligible Real Property; (g) such Real Property is not deemed by the Agent in its Permitted Discretion to be ineligible for inclusion in the calculation of the Global Borrowing Base (or any component thereof); and (h) the requirements in Section 14.1(g) hereof have been satisfied. “Eligible Rental Equipment” means all equipment owned by any Loan Party which (a) constitutes Eligible Inventory and (b) consists of used Rental Fleet Equipment. “Eligible Rolling Stock/Equipment” means Rolling Stock and Equipment (other than Eligible New Floorplan Equipment and Eligible Rental Equipment) of any Loan Party, that complies with each of the representations and warranties respecting Rolling Stock and Equipment, as applicable, made in the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by Agent in Agent’s Permitted Discretion to address the results of any field examination or appraisal performed by Agent from time to time after the Closing Date. An item of Rolling Stock and Equipment shall not be included in Eligible Rolling Stock/Equipment if: (a) the applicable Loan Party does not have good, valid, and marketable title thereto; (b) the applicable Loan Party does not have actual and exclusive possession thereof (either directly or, in the ordinary course of business, through a bailee, processor, or agent of such Loan Party) unless it consists of Rolling Stock and such Rolling Stock is being used in the ordinary course of business; (c) it is not at a location identified on Schedule 4.24, unless it consists of Rolling Stock and such Rolling Stock is being used in the ordinary course of business; (d) it is materially damaged, defective or otherwise unfit for use in its intended purpose; (e) it is not adequately insured for loss; (f) it is not subject to a valid, duly perfected, first priority Lien in favor of the Agent; (g) it is subject to other Liens; or
Schedule 1 – Defined Terms Page 29 (h) it is evidenced by a certificate of title, such certificate is in the possession of any Person other than Agent or contains notations of any Liens in favor of any Person other than the Agent. “Eligible Used Floorplan Equipment” means all Inventory owned by Borrowers which (a) constitutes Eligible Inventory and (b) consists of Used Floorplan Equipment. “Eligible Transferee” means (a) any Lender (other than a Defaulting Lender), any Affiliate of any Lender and any Related Fund of any Lender; (b) (i) a commercial bank organized under the laws of the United States or any state thereof, and having total assets in excess of $1,000,000,000; (ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof, and having total assets in excess of $1,000,000,000; (iii) a commercial bank organized under the laws of any other country or a political subdivision thereof; provided that (A) (x) such bank is acting through a branch or agency located in the United States or (y) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country, and (B) such bank has total assets in excess of $1,000,000,000; (c) any other entity (other than a natural person) that is an “accredited investor” (as defined in Regulation D under the Securities Act) that extends credit or buys loans as one of its businesses including insurance companies, investment or mutual funds and lease financing companies, and having total assets in excess of $1,000,000,000; and (d) during the continuation of an Event of Default, any other Person approved by Agent; provided, that no Loan Party or Affiliate of a Loan Party shall qualify as an Eligible Transferee. “Employee Benefit Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, (a) that is or within the preceding six (6) years has been sponsored, maintained or contributed to by any Loan Party or ERISA Affiliate or (b) to which any Loan Party or ERISA Affiliate has, or has had at any time within the preceding six (6) years, any liability, contingent or otherwise. “Environmental Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter, or other written communication from any Governmental Authority, or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses of any Borrower, any Subsidiary of a Borrower, or any of their predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by any Borrower, any Subsidiary of a Borrower, or any of their predecessors in interest. “Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, in each case, to the extent binding on Borrowers or its Subsidiaries, relating to the environment, the effect of the environment on employee health, or Hazardous Materials, in each case as amended from time to time. “Environmental Liabilities” means all liabilities, monetary obligations, losses, damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest
Schedule 1 – Defined Terms Page 30 incurred as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action. “Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities. “Equipment” means equipment (as that term is defined in the Code). “Equity Interests” means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests or units), preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act). “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statutes, and all regulations and guidance promulgated thereunder. Any reference to a specific section of ERISA shall be deemed to be a reference to such section of ERISA and any successor statutes, and all regulations and guidance promulgated thereunder. “ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of Borrowers or its Subsidiaries under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of Borrowers or its Subsidiaries under IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated service group of which Borrowers or any of its Subsidiaries is a member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with Borrowers or any of its Subsidiaries and whose employees are aggregated with the employees of Borrowers or its Subsidiaries under IRC Section 414(o). “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association, as in effect from time to time. “Event of Default” has the meaning specified therefor in Section 8 of the Agreement. “Excess” has the meaning specified therefor in Section 2.14 of the Agreement. “Excess Availability” means, as of any date of determination, an amount equal to the sum of (i) the amount that U.S. Borrowers are entitled to borrow as U.S. Revolver Loans under Section 2.1 of the Agreement (after giving effect to the then outstanding U.S. Revolver Usage), plus (ii) the amount that Australian Borrowers are entitled to borrow as Australian Revolver Loans under Section 2.1 of the Agreement (after giving effect to the then outstanding Australian Revolver Usage), plus (iii) the amount that U.S. Borrowers are entitled to borrow as U.S. Floorplan Loans under Section 2.2 of the Agreement (after giving effect to the then outstanding U.S. Floorplan Usage), plus (iv) the amount that Australian Borrowers are entitled to borrow as Australian Floorplan Loans under Section 2.2 of the Agreement (after giving effect to the then outstanding Australian Floorplan Usage). “Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to time.
Schedule 1 – Defined Terms Page 31 “Excluded Subsidiaries” means NW Property Solutions LLC, a North Dakota limited liability company; Heartland Solutions, LLC, a Nebraska limited liability company; Heartland Leverage Lender, LLC, a Nebraska limited liability company; NMS Warranty Co., a Nebraska corporation; and Heartland Guaranty, LLC, a Nebraska limited liability company. “Excluded Swap Obligations” means, with respect to any Credit Party, any Hedge Obligation if, and to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Hedge Obligation (or any liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Credit 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 liability for or the guarantee of such Credit Party or the grant of such security interest becomes effective with respect to such Hedge Obligation (such determination being made after giving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Credit Party, including under the keepwell provisions herein or in any Loan Document or guaranty). If a Hedge Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Hedge Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal for the reasons identified in the immediately preceding sentence of this definition. “Excluded Taxes” means (i) any tax imposed on the net income or net profits of any Lender or any Participant (including any branch profits taxes), in each case imposed by the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender or such Participant is organized or the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender’s or such Participant’s principal office is located in each case as a result of a present or former connection between such Lender or such Participant and the jurisdiction or taxing authority imposing the tax (other than any such connection arising solely from such Lender or such Participant having executed, delivered or performed its obligations or received payment under, or enforced its rights or remedies under the Agreement or any other Loan Document); (ii) taxes resulting from a Lender’s or a Participant’s failure to comply with the requirements of Section 16.2 of the Agreement, (iii) any United States federal withholding taxes that would be imposed on amounts payable to a Foreign Lender based upon the applicable withholding rate in effect at the time such Foreign Lender becomes a party to the Agreement (or designates a new lending office), except that Taxes shall include (A) any amount that such Foreign Lender (or its assignor, if any) was previously entitled to receive pursuant to Section 16.1 of the Agreement, if any, with respect to such withholding tax at the time such Foreign Lender becomes a party to the Agreement (or designates a new lending office), and (B) additional United States federal withholding taxes that may be imposed after the time such Foreign Lender becomes a party to the Agreement (or designates a new lending office), as a result of a change in law, rule, regulation, order or other decision with respect to any of the foregoing by any Governmental Authority, and (iv) any United States federal withholding taxes imposed under FATCA. “Existing Credit Agreement” has the meaning specified therefor in the recitals to the Agreement. “Existing Hedge Agreements” means those Hedge Agreements described on Schedule E-3 to the Agreement.
Schedule 1 – Defined Terms Page 32 “Existing Letters of Credit” means those letters of credit described on Schedule E-2 to the Agreement. “Existing Obligations” means the “Obligations” as defined in the Existing Credit Agreement. “Extended Terms Accounts” means Accounts with payment terms of more than 30 days. “Extraordinary Advances” has the meaning specified therefor in Section 2.3(d)(iii) of the Agreement. “Extraordinary Floorplan Advances” has the meaning specified therefor in Section 2.3(d)(iii) of the Agreement. “Extraordinary Revolver Advances” has the meaning specified therefor in Section 2.3(d)(iii) of the Agreement. “Extraordinary Receipts” means (a) so long as no Event of Default has occurred and is continuing, proceeds of judgments, proceeds of settlements, or other consideration of any kind received in connection with any cause of action or claim, and proceeds of business interruption insurance, and (b) if an Event of Default has occurred and is continuing, any payments received by Borrowers or any of its Subsidiaries not in the ordinary course of business (and not consisting of proceeds described in Section 2.4(e)(ii) of the Agreement) consisting of (i) proceeds of judgments, proceeds of settlements, or other consideration of any kind received in connection with any cause of action or claim, and proceeds of business interruption insurance, (ii) indemnity payments (other than to the extent such indemnity payments are immediately payable to a Person that is not an Affiliate of Borrowers or any of its Subsidiaries), and (iii) any purchase price adjustment received in connection with any purchase agreement. “FATCA” means Sections 1471 through 1474 of the IRC, as of the date of the 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. “FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder. “Fee Letter” means that certain fee letter, dated as of even date with the Agreement, between Borrowers and Agent, in form and substance reasonably satisfactory to Agent. “Federal Funds Rate” means (a) the weighted average per annum interest rate on overnight federal funds transactions with members of the Federal Reserve System on the applicable day (or the preceding Business Day, if the applicable day is not a Business Day), as published by the Federal Reserve Bank of New York on the next Business Day; or (b) if the rate is not so published, the average per annum rate (rounded up to the nearest 1/8 of 1%) charged to Bank of America on the applicable day on such transactions, as determined by Agent; provided, that in no event shall the Federal Funds Rate be less than zero. “Financial Covenant Period” means a period which shall commence on any date (the “Commencement Date”) on which Adjusted Excess Availability is less than the Covenant/Dominion Threshold Amount and shall continue until the last day of the first month after the Commencement
Schedule 1 – Defined Terms Page 33 Date in which Adjusted Excess Availability is greater than or equal to the Covenant/Dominion Threshold Amount for a period of ninety (90) consecutive days. “Fixed Charges” means, with respect to any fiscal period and with respect to Borrowers determined on a consolidated basis in accordance with GAAP, the sum, without duplication, of (a) Interest Expense accrued (other than interest paid-in-kind, amortization of financing fees, and other non-cash Interest Expense) during such period, (b) Floorplan Interest Expense accrued (other than interest paid-in-kind, amortization of financing fees and other non-cash Floorplan Interest Expense) during such period, (c) principal payments in respect of Indebtedness that are required to be paid during such period, (d) all federal, state, and local income taxes accrued during such period, (e) Rent Expense, and (f) all Restricted Payments paid (whether in cash or other property, other than common Equity Interests) during such period. “Fixed Charge Coverage Ratio” means, with respect to any fiscal period and with respect to Borrowers determined on a consolidated basis in accordance with GAAP, the ratio of (a) EBITDAR for such period minus (i) an amount (not less than zero) equal to (A) Capital Expenditures made in cash (to the extent not already incurred in a prior period) or incurred during such period; provided, that, any Capital Expenditures made in cash which are later financed with Permitted Indebtedness within 12 months after the incurrence thereof, shall be deemed to have been financed since the date of incurrence; less (B) any disposition proceeds received from the sale of capital or fixed assets during such period, (ii) an amount (not less than zero) equal to (A) the Rental Fleet Transfer Amount for such period less (B) any disposition proceeds received from the sale of Rental Fleet Equipment during such period, and (iii) the Rental Fleet CapEx Amount for such period, to (b) Fixed Charges for such period. “Floating U.S. SOFR Rate Loans” has the meaning give thereto in Section 2.12(b)(iv) “Flood Laws” means the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, and related laws, rules and regulations, including any amendments or successor provisions. “Floorplan Interest Expense” means, for any period, the aggregate of the interest expense of Borrowers for such period in respect of the Floorplan Loans, the DLL Floorplan Indebtedness, the CNH Floorplan Indebtedness and any other Inventory floor planning loan facilities. “Floorplan Lender” means, individually and collectively, the U.S. Floorplan Lender and the Australian Floorplan Lender. “Floorplan Loan Exposure” means, with respect to any Floorplan Lender, as of any date of determination (a) prior to the termination of the Floorplan Commitments, the amount of such Lender’s Floorplan Commitment, and (b) after the termination of the Floorplan Commitments, the aggregate outstanding principal amount of the Floorplan Loans of such Lender. “Floorplan Loans” means, individually and collectively, the U.S. Floorplan Loans and/or Australian Floorplan Loans, as applicable. “Floorplan Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such Xxxxxx’s Pro Rata Share of the U.S. Floorplan Swing Loans and/or the Australian Floorplan Swing Loans, as applicable, on such date.
Schedule 1 – Defined Terms Page 34 “Flow of Funds Agreement” means a flow of funds agreement, dated as of even date herewith, in form and substance reasonably satisfactory to Agent, executed and delivered by each Loan Party and Agent. “Foreign Lender” means any Lender or Participant that is not a United States person within the meaning of IRC section 7701(a)(30). “Foreign L/C/ Currency Reserve” means, with respect to any Letter of Credit issued in a currency other than Dollars, as of any date of determination, those reserves that the applicable Issuing Bank certifies to Agent in writing from time to time as being necessary or appropriate to establish (based upon such Issuing Bank’s reasonable determination of the currency fluctuation risk in respect of any such Letters of Credit) in respect of any such Letters of Credit outstanding. “FRNBY” means the Federal Reserve Bank of New York. “Funding Date” means the date on which a Borrowing occurs. “Funding Losses” has the meaning specified therefor in Section 2.12(b)(ii) of the Agreement. “GAAP” means generally accepted accounting principles as in effect from time to time in the United States, consistently applied. “Global Borrowing Base” means, as of any date of determination, the sum of the (a) Australian Aggregate Borrowing Base, plus (b) the U.S. Aggregate Borrowing Base. “Global Maximum Credit Amount” means the sum of the (a) Australian Maximum Credit Amount, plus (b) the U.S. Maximum Credit Amount. “Global Usage” means, as of any date of determination, the sum of (a) Australian Aggregate Usage, plus (b) U.S. Aggregate Usage. “Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, by-laws, or other organizational documents of such Person. “Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, local, territorial, provincial, municipal or any other level, 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). “Guarantor” means (a) each Subsidiary of Borrowers other than the Excluded Subsidiaries and other than each CFC owned directly or indirectly by Borrowers, and (b) each other Person that becomes a guarantor after the Closing Date pursuant to Section 5.11 of the Agreement. “Guaranty and Security Agreement” means a guaranty and security agreement, dated as of even date with the Agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by each Borrower and each Guarantor to Agent.
Schedule 1 – Defined Terms Page 35 “Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million. “Hedge Agreement” means a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code. “Hedge Obligations” means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of Borrowers or its Subsidiaries arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers, including without limitation the Existing Hedge Agreements. “Hedge Provider” means any Lender or any of its Affiliates; provided, that no such Person (other than Bank of America or its Affiliates) shall constitute a Hedge Provider unless and until (a) in the case of a Hedge Agreement in existence as of the Closing Date, Agent receives a Bank Product Provider Agreement from such Person and with respect to the applicable Hedge Agreement within 10 days after the Closing Date and (b) in the case of a Hedge Agreement entered into after the Closing- Date, Agent receives a Bank Product Provider Agreement from such Person and with respect to the applicable Hedge Agreement within 10 days after the execution and delivery of such Hedge Agreement with Borrowers or its Subsidiaries; provided further, that if, at any time, a Lender ceases to be a Lender under the Agreement, then, from and after the date on which it ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Hedge Providers and the obligations with respect to Hedge Agreements entered into with such former Lender or any of its Affiliates shall no longer constitute Hedge Obligations. “Increase” has the meaning specified therefor in Section 2.14. “Increase Date” has the meaning specified therefor in Section 2.14. “Increase Joinder” has the meaning specified therefor in Section 2.14. “Indebtedness” as to any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, or other financial products, (c) all obligations of such Person as a lessee under Capital Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed, (e) all obligations of such Person to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and repayable in accordance with customary trade practices and, for the avoidance of doubt, other than royalty payments payable in the ordinary course of business in respect of non-exclusive licenses), (f) all monetary obligations of such Person owing under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the
Schedule 1 – Defined Terms Page 36 date of determination), (g) any Disqualified Equity Interests of such Person, and (h) any obligation of such Person guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness which is limited or is non-recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable, the limited amount of such obligations, and (B) if applicable, the fair market value of such assets securing such obligation. “Indemnified Liabilities” has the meaning specified therefor in Section 10.3 of the Agreement. “Indemnified Person” has the meaning specified therefor in Section 10.3 of the Agreement. “Indemnified Taxes” means, any Taxes other than Excluded Taxes. “Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under any other state or federal bankruptcy or insolvency law (whether state, provincial, federal or foreign, including the Australian Corporations Act), assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief. “Intercompany Subordination Agreement” means an amended and restated intercompany subordination agreement, dated as of even date with the Agreement, executed and delivered by Borrowers, each of the other Loan Parties, and Agent, the form and substance of which is reasonably satisfactory to Agent. “Intercreditor Agreement” and “Intercreditor Agreements” means, individually or collectively as required by the context, the DLL Intercreditor Agreement, the CNH Intercreditor Agreement and the NAB Intercreditor Agreement.. “Interest Expense” means, for any period, the aggregate of the interest expense of Borrowers for such period, determined on a consolidated basis in accordance with GAAP. “Interest Period” means, (a) with respect to each U.S. SOFR Rate Loan, a period commencing on the date of the making of such U.S. SOFR Rate Loan (or the continuation of a U.S. SOFR Rate Loan or the conversion of a U.S. Base Rate Loan to a U.S. SOFR Rate Loan) and ending 1, 3 or 6 months thereafter and (b) with respect to each Australian Bill Rate Loan, a period commencing on the date of the making of such Australian Bill Rate Loan (or the continuation of an Australian Bill Rate Loan or the conversion of an Australian Base Rate Loan to an Australian Bill Rate Loan) and ending 1, 2, 3 or 6 months thereafter; provided, that (a) interest shall accrue at the applicable rate based upon Term SOFR or Australian Bill Rate, as applicable, from and including the first day of each Interest Period to, but excluding, the day on which any Interest Period expires, (b) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (c) with respect to an Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in
Schedule 1 – Defined Terms Page 37 the calendar month at the end of such Interest Period), the Interest Period shall end on the last Business Day of the calendar month that is 1, 3 or 6 months after the date on which the Interest Period began with respect to U.S. SOFR Rate Loans and 1, 2, 3 or 6 months after the date on which the Interest Period began with respect to Australian Bill Rate Loans, and (d) Borrowers may not elect an Interest Period which will end after the Maturity Date. “Inventory” means inventory (as that term is defined in the Code). “Inventory Reserves” means, as of any date of determination, (a) Landlord Reserves, and (b) those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Sections 2.1.1(c), 2.1.2(c), 2.2.1(c) and 2.2.2(c), to establish and maintain (including reserves for slow moving Inventory and Inventory shrinkage) with respect to Eligible Inventory, the Global Maximum Credit Amount (or any component thereof). “Investment” means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustment for increases or decreases in value, or write-ups, write-downs, or write- offs with respect to such Investment. “IRC” means the Internal Revenue Code of 1986, as in effect from time to time. “ISP” means, with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber of Commerce Publication No. 590) and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is issued. “Issuer Document” means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement, or any other document, agreement or instrument entered into (or to be entered into) by Borrowers in favor of Issuing Bank and relating to such Letter of Credit. “Issuing Bank” means (a) with respect to Letters of Credit issued at the request of a U.S. Borrower, Bank of America, Xxxxx Fargo Bank, N.A. with respect to the Existing Letters of Credit, or any other Lender that, at the request of U.S. Borrowers and with the consent of Agent, agrees, in such Xxxxxx’s sole discretion, to become an Issuing Bank for the purpose of issuing Letters of Credit pursuant to Section 2.11 of the Agreement, and Issuing Bank shall be a Lender and (b) with respect to Letters of Credit issued at the request of an Australian Borrower, Bank of America acting through its Australian branch. “Joint Book Runners” has the meaning set forth in the preamble to the Agreement. “Joint Lead Arrangers” has the meaning set forth in the preamble to the Agreement. “Landlord Reserve” means, as to each location at which a Borrower has Inventory or books and records located and as to which a Collateral Access Agreement has not been received by Agent, a
Schedule 1 – Defined Terms Page 38 reserve in an amount equal to the greater of (a) the number of months’ rent for which the landlord will have, under applicable law, a Lien in the Inventory of such Borrower to secure the payment of rent or other amounts under the lease relative to such location, or (b) 3 months’ rent under the lease relative to such location. “Lender” has the meaning set forth in the preamble to the Agreement, shall include Issuing Bank and each U.S. Swing Lender, and shall also include any other Person made a party to the Agreement pursuant to the provisions of Section 13.1 of the Agreement and “Lenders” means each of the Lenders or any one or more of them. “Lender Group” means each of the Lenders (including Issuing Bank and each U.S. Swing Lender) and Agent, or any one or more of them. “Lender Group Expenses” means all (a) costs or expenses (including taxes and insurance premiums) required to be paid by Borrowers or its Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by the Lender Group, (b) documented out-of-pocket fees or charges paid or incurred by Agent in connection with the Lender Group’s transactions with Borrowers or its Subsidiaries under any of the Loan Documents, including, photocopying, notarization, couriers and messengers, telecommunication, public record searches, filing fees, recording fees, publication, real estate surveys, real estate title policies and endorsements, and environmental audits, (c) Agent’s customary fees and charges imposed or-incurred in connection with any background checks or OFAC/PEP searches related to Borrowers or its Subsidiaries, (d) Agent’s customary fees and charges (as adjusted from time to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of Borrowers (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith, (e) customary charges imposed or incurred by Agent resulting from the dishonor of checks payable by or to any Loan Party, (f) reasonable documented out-of-pocket costs and expenses paid or incurred by the Lender Group to correct any default or enforce any provision of the Loan Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (g) field examination, appraisal, and valuation fees and expenses of Agent related to any field examinations, appraisals, or valuation to the extent of the fees and charges (and up to the amount of any limitation) provided in Section 2.10 of the Agreement, (h) Agent’s and the Lender Group’s reasonable costs and expenses (including reasonable documented attorneys’ fees and expenses) relative to third party claims or any other lawsuit or adverse proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions contemplated by the Loan Documents, Agent’s Liens in and to the Collateral, or the Lender Group’s relationship with Borrowers or any of its Subsidiaries, (i) Agent’s reasonable documented costs and expenses (including reasonable documented attorneys’ fees and due diligence expenses) incurred in advising, structuring, drafting, reviewing, administering (including travel, meals, and lodging), syndicating (including reasonable costs and expenses relative to the rating of CUSIP, DXSyndicateTM, SyndTrak or other communication costs incurred in connection with a syndication of the loan facilities), or amending, waiving, or modifying the Loan Documents, and (j) Agent’s and each Lender’s reasonable documented costs and •expenses (including reasonable documented attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating, enforcing (including attorneys, accountants, consultants, and other advisors fees and expenses incurred in connection with a “workout,” a “restructuring,” or an Insolvency Proceeding concerning Borrowers or any of its Subsidiaries or in exercising rights or remedies under the Loan Documents), or defending
Schedule 1 – Defined Terms Page 39 the Loan Documents, irrespective of whether a lawsuit or other adverse proceeding is brought, or in taking any enforcement action or any Remedial Action with respect to the Collateral. “Lender Group Representatives” has the meaning specified therefor in Section 17.9 of the Agreement. “Lender-Related Person” means, with respect to any Lender, such Lender, together with such Xxxxxx’s Affiliates, officers, directors, employees, attorneys, and agents. “Letter of Credit” any standby or documentary letter of credit, foreign guaranty, documentary bankers acceptance, indemnity, reimbursement agreement or similar instrument, in each case issued by Issuing Bank. “Letter of Credit Collateralization” means either (a) providing cash collateral (pursuant to documentation reasonably satisfactory to Agent, including provisions that specify that the Letter of Credit Fees and all commissions, fees, charges and expenses provided for in Section 2.11(k) of the Agreement (including any fronting fees) will continue to accrue while the Letters of Credit are outstanding) to be held by Agent for the benefit of the applicable Revolver Lenders in an amount equal to 105% of the then existing U.S. Letter of Credit Usage and/or Australian Letter of Credit Usage, (b) delivering to Agent documentation executed by all beneficiaries under the Letters of Credit, in form and substance reasonably satisfactory to Agent and Issuing Bank, terminating all of such beneficiaries’ rights under the Letters of Credit, or (c) providing Agent with a standby letter of credit, in form and substance reasonably satisfactory to Agent, from a commercial bank acceptable to Agent (in its sole discretion) in an amount equal to 105% of the then existing U.S. Letter of Credit Usage and/or Australian letter of Credit Usage (it being understood that the applicable Letter of Credit Fee and all fronting fees set forth in the Agreement will continue to accrue while the Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be drawn under any such standby letter of credit). “Letter of Credit Disbursement” means a payment made by Issuing Bank pursuant to a Letter of Credit. “Letter of Credit Exposure” means, as of any date of determination with respect to any Lender, such Xxxxxx’s Pro Rata Share of the Letter of Credit Usage on such date. “Letter of Credit Fee” has the meaning specified therefor in Section 2.6(b) of the Agreement. “Letter of Credit Indemnified Costs” has the meaning specified therefor in Section 2.11(f) of the Agreement. “Letter of Credit Related Person” has the meaning specified therefor in Section 2.11(f) of the Agreement. “Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest (including, without limitation, any “security interest” as defined in sections 12(1) and 12(2) of the Australian PPSA), or other security arrangement and any other preference, priority, or preferential arrangement of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the
Schedule 1 – Defined Terms Page 40 interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing. “Liquidity” means, as of any date of determination, the sum of Excess Availability plus Qualified Cash; provided, that, for purposes of determining Liquidity in respect of the applicable tests in any Financial Covenant Period, the Maturity Date and any Reporting Period, no more than 50% of such determination of Liquidity may be predicated on Qualified Cash (it being agreed and understood that at least 50% of such determination shall be predicated on Excess Availability). “Loan” means any Revolver Loan, Floorplan Loan, Swing Loan or Extraordinary Advance made (or to be made) hereunder. “Loan Account” has the meaning specified therefor in Section 2.9 of the Agreement. “Loan Documents” means the Agreement, the Australian Security Documents, the Control Agreements, the Collateral Access Agreements, any Borrowing Base Certificate, the Fee Letter, the Guaranty and Security Agreement, the Intercompany Subordination Agreement, any Issuer Documents, the Letters of Credit, the Mortgages, the Intercreditor Agreements, any Patent Security Agreement, any Trademark Security Agreement, any Copyright Security Agreement, any note or notes executed by Borrowers in connection with the Agreement and payable to any member of the Lender Group, and any other instrument or agreement entered into, now or in the future, by Borrowers or any of its Subsidiaries and any member of the Lender Group in connection with the Agreement. “Loan Party” means any Borrower or any Guarantor. “Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to time. “Material Acquisition” means an Acquisition in which the aggregate cash and non-cash consideration to be paid by Borrowers or any of its Subsidiaries as determined in accordance with GAAP exceeds $50,000,000. “Material Adverse Effect” means (a) a material adverse effect in the business, operations, results of operations, assets, liabilities or financial condition of Borrowers and its Subsidiaries, taken as a whole, (b) a material impairment of Borrowers’ and its Subsidiaries ability to perform their obligations under the Loan Documents to which they are parties or of the Lender Group’s ability to enforce the Obligations or realize upon the Collateral (other than as a result of an action taken or not taken that is solely in the control of Agent), or (c) a material impairment of the enforceability or priority of Agent’s Liens with respect to all or a material portion of the Collateral. “Material CNH Industrial Agreements” means the Amended and Restated Wholesale Floor Plan Credit Facility and Security Agreement with CNH Capital America, LLC dated as of November 13, 2007, as amended. “Maturity Date” mean May 17, 2029. “Xxxxx’x” has the meaning specified therefor in the definition of Cash Equivalents.
Schedule 1 – Defined Terms Page 41 “Mortgages” means, individually and collectively, one or more mortgages, deeds of trust, or deeds to secure debt, executed and delivered by Borrowers or its Subsidiaries in favor of Agent, in form and substance reasonably satisfactory to Agent, that encumber the Real Property Collateral. “Mortgage Related Documents” means, with respect to any Real Property subject to a Mortgage, the following, in form and substance satisfactory to the Agent and received by the Agent for review at least 45 days prior to the effective date of the Mortgage: (a) an ALTA mortgagee title policy (or binder therefor) covering the Agent’s interest under the Mortgage, in a form and amount and by an insurer acceptable to the Agent, which must be fully paid on such effective date; (b) such assignments of leases, estoppel letters, attornment agreements, consents, waivers and releases as the Agent may require with respect to other Persons having an interest in the Real Property; (c) an ALTA Survey by a licensed surveyor acceptable to the Agent; (d) a life-of-loan flood hazard determination and, if the Real Property is located in a flood plain, an acknowledged notice to Borrowers and flood insurance in an amount, on terms, including endorsements, and by an insurer, in each case, acceptable to the Agent; (e) a current appraisal of the Real Property, prepared by an appraiser acceptable to the Agent, and in form and substance satisfactory to Required Lenders; (f) an environmental assessment, prepared by environmental engineers acceptable to the Agent, and accompanied by such reports, certificates, studies or data as the Agent may reasonably require, which shall all be in form and substance satisfactory to Required Lenders; and (g) an environmental indemnity agreement and such other documents, instruments or agreements as the Agent may reasonably require with respect to any environmental risks regarding the Real Property. “NAB” means National Australia Bank Limited ABN 12 004 044 937. “NAB Intercreditor Agreement” means the intercreditor agreement between the Australian Borrower, NAB, the Agent and the Australian Security Trustee dated as of the date of this Agreement. “NAB Indebtedness” means Indebtedness owing to NAB in respect of the facilities provided by NAB to the Australian Borrower in an aggregate amount not exceeding AUD$25,000,000 at any time outstanding. “Net Cash Proceeds” means: (a) with respect to any sale or disposition by Borrowers or any of its Subsidiaries of assets, the amount of cash proceeds received (directly or indirectly) from time to time (whether as initial consideration or through the payment of deferred consideration) by or on behalf of Borrowers or its Subsidiaries, in connection therewith after deducting therefrom only (i) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than (A) Indebtedness owing to Agent or any Lender under the Agreement or the other Loan Documents and (B) Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection with such sale or disposition, (ii) reasonable fees, commissions, and expenses related thereto and required to be paid by Borrowers or such Subsidiary in connection with such sale or disposition, (iii) taxes paid or payable to any taxing authorities by any Borrower or such Subsidiary in connection with such sale or disposition, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable to a Person that is not an Affiliate of Borrowers or any of its Subsidiaries, and are properly attributable to such transaction; and (iv) all amounts that are set aside as a reserve (A) for adjustments in respect of the purchase price of such assets, (B) for any liabilities associated with such sale or casualty, to the extent such reserve is required by GAAP, and (C) for the payment of unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or
Schedule 1 – Defined Terms Page 42 within 30 days after, the date of such sale or other disposition, to the extent that in each case the funds described above in this clause (iv) are (x) deposited into escrow with a third party escrow agent or set aside in a separate Deposit Account that is subject to a Control Agreement in favor of Agent and (y) paid to Agent as a prepayment of the applicable Obligations in accordance with Section 2.4(e) of the Agreement at such time when such amounts are no longer required to be set aside as such a reserve; and (b) with respect to the issuance or incurrence of any Indebtedness by Borrowers or any of its Subsidiaries, or the issuance by Borrowers or any of its Subsidiaries of any Equity Interests, the aggregate amount of cash received (directly or indirectly) from time to time (whether as initial consideration or through the payment or disposition of deferred consideration) by or on behalf of Borrowers or such Subsidiary in connection with such issuance or incurrence, after deducting therefrom only (i) reasonable fees, commissions, and expenses related thereto and required to be paid by Borrowers or such Subsidiary in connection with such issuance or incurrence, (ii) taxes paid or payable to any taxing authorities by Borrowers or such Subsidiary in connection with such issuance or incurrence, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable to a Person that is not an Affiliate of Borrowers or any of its Subsidiaries, and are properly attributable to such transaction. “Net Recovery Percentage” means, as of any date of determination, the percentage of the book value of Borrowers’ Inventory that is estimated to be recoverable in an orderly liquidation of such Inventory net of all associated costs and expenses of such liquidation, such percentage to be determined as to each category of Inventory and to be as specified in the most recent appraisal received by Agent from an appraisal company selected by Agent. “New Floorplan Equipment” means new equipment that is (a) not subject to financing with a third party and (b) aged less than thirty-six (36) months. “Non-Consenting Lender” has the meaning specified therefor in Section 14.2(a) of the Agreement. “Non-Defaulting Lender” means each Lender other than a Defaulting Lender. “Notice of Borrowing” means a written notice in the form of Exhibit N-1 to the Agreement. “Obligations” means (a) all loans (including the Floorplan Loans (inclusive of Extraordinary Floorplan Advances, U.S. Floorplan Swing Loans, Australian Floorplan Swing Loans) and the Revolver Loans (inclusive of Extraordinary Revolver Advances and U.S. Revolver Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), reimbursement or indemnification obligations with respect to Letters of Credit (irrespective of whether contingent), premiums, liabilities (including all amounts charged to the Loan Account pursuant to the Agreement), obligations (including indemnification obligations), fees (including the fees provided for in the Fee Letter), Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), guaranties, and all covenants and duties of any other kind and description owing by any Loan Party arising out of, under, pursuant to, in connection with, or evidenced by the Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute
Schedule 1 – Defined Terms Page 43 or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that a Borrower is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, and (b) all Bank Product Obligations. Without limiting the generality of the foregoing, the Obligations of a Borrower under the Loan Documents include the obligation to pay (i) the principal of the Revolver Loans and the Floorplan Loans, (ii) interest accrued on the Revolver Loans and the Floorplan Loans, (iii) the amount necessary to reimburse Issuing Bank for amounts paid or payable pursuant to Letters of Credit, (iv) Letter of Credit commissions, fees (including fronting fees) and charges, (v) Lender Group Expenses, (vi) fees payable under the Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any Loan Party under any Loan Document. Any reference in the Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding. “OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury. “Overadvance” means, individually or collectively as required by the context, any U.S. Floorplan Overadvance, any Australian Floorplan Overadvance, any U.S. Revolver Overadvance or any Australian Revolver Overadvance. “Participant” has the meaning specified therefor in Section 13.1(e) of the Agreement. “Participant Register” has the meaning set forth in Section 13.1(i) of the Agreement. “Patent Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement. “Patriot Act” has the meaning specified therefor in Section 4.13 of the Agreement. “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV or Section 302 of ERISA or Section 412 or 430 of the Code or other applicable law sponsored, maintain, or contributed to by any Loan Party or ERISA Affiliate or to which any Loan Party or ERISA Affiliate has any liability, contingent or otherwise. “Permitted Acquisition” means any Acquisition so long as with respect to such other Acquisitions: (a) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of the proposed Acquisition and the proposed Acquisition is consensual, (b) no Indebtedness will be incurred, assumed, or would exist with respect to a Borrower or its Subsidiaries as a result of such Acquisition, other than Indebtedness permitted under clauses (f), (g) or (x) of the definition of Permitted Indebtedness, provided that Borrowers may finance a Permitted Acquisition with proceeds of DLL Floorplan Indebtedness and/or CNH Floorplan Indebtedness; and no Liens will be incurred, assumed, or would exist with respect to the assets of Borrowers or its Subsidiaries as a result of such Acquisition other than Permitted Liens, (c) in the case of a Material Acquisition, Borrowers have provided Agent with written confirmation, supported by reasonably detailed calculations, that on a pro forma basis (including pro
Schedule 1 – Defined Terms Page 44 forma adjustments arising out of events which are directly attributable to such proposed Acquisition, are factually supportable, and are expected to have a continuing impact, in each case, determined as if the combination had been accomplished at the beginning of the relevant period; such eliminations and inclusions determined on a basis consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as interpreted by the staff of the SEC or otherwise acceptable to Agent) created by adding the historical combined financial statements of Borrowers (including the combined financial statements of any other Person or assets that were the subject of a prior Permitted Acquisition during the relevant period) to the historical consolidated financial statements of the Person to be acquired (or the historical financial statements related to the assets to be acquired) pursuant to the proposed Acquisition, for the 12 month period most recently ended prior to such proposed Acquisition for which Agent has received financial statements of Borrowers pursuant to Schedule 5.1, each Borrower and its Subsidiaries would have a Fixed Charge Coverage Ratio of at least 1.1 to 1.0 (calculated as if the payment of consideration in respect of such proposed Acquisition was made on the last day of such 12 month period and constitutes a Fixed Charge), (d) after giving effect to the payment of consideration in respect of such proposed Acquisition, Excess Availability is greater than 17.5% of the lesser of (i) Global Borrowing Base and (ii) Global Maximum Credit Amount, (e) in the case of a Material Acquisition, Borrowers have provided Agent with its due diligence package relative to the proposed Acquisition, including forecasted balance sheets, profit and loss statements, and cash flow statements of the Person or assets to be acquired, all prepared on a basis consistent with such Person’s (or assets’) historical financial statements, together with appropriate supporting details and a statement of underlying assumptions for the 1 year period following the date of the proposed Acquisition, on an annual basis), in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agent, (f) in the case of a Material Acquisition, the assets being acquired or the Person whose Equity Interests are being acquired did not have negative EBITDAR (as determined in a manner consistent with the definition of EBITDAR in this Agreement, together with such other adjustments that are reasonably acceptable to Agent) during the 12 consecutive month period most recently concluded prior to the date of the proposed Acquisition, (g) Borrowers have provided Agent with written notice of the proposed Acquisition at least 10 Business Days prior to the anticipated closing date of the proposed Acquisition and, not later than 5 Business Days prior to the anticipated closing date of the proposed Acquisition, copies of the anticipated acquisition agreement and other material documents relative to the proposed Acquisition, and executed acquisition documents within 5 Business Days after closing, (h) the assets being acquired (other than a de minimis amount of assets in relation to Borrowers’ and its Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of Borrowers and its Subsidiaries or a business reasonably related thereto, (i) either (a) the assets being acquired are located within the United States or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States or (b) the assets being acquired are located outside the United States or the Person whose Equity Interests are being acquired is organized in a jurisdiction located outside the United States and, in the case of this clause (b), the aggregate cash and non-cash consideration (including the maximum amount
Schedule 1 – Defined Terms Page 45 of any earnout to be paid in connection therewith) to be paid by Borrowers and its Subsidiaries in connection with (i) such Acquisition does not exceed 2.50% of Total Assets and (ii) all such Acquisitions during any fiscal year does not exceed 4.00% of Total Assets, and (j) the subject assets or Equity Interests, as applicable, are being acquired directly by a Borrower or one of its Subsidiaries, and, in connection therewith, Borrowers or if the Subsidiary is a Loan Party, the Borrower or Loan Party, as applicable, shall have complied with Section 5.11 or 5.12 of the Agreement, as applicable, of the Agreement and, in the case of an acquisition of Equity Interests, Borrowers or the applicable Loan Party shall have demonstrated to Agent that the new Loan Parties have received consideration sufficient to make the joinder documents binding and enforceable against such new Loan Parties. “Permitted Discretion” means a determination made in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment. “Permitted Dispositions” means: (a) sales, abandonment, or other dispositions of assets that are substantially worn, damaged, or obsolete or no longer used or useful in the conduct of the business of Borrowers and its Subsidiaries, (b) sales of Inventory to buyers in the ordinary course of business, (c) the use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of the Agreement or the other Loan Documents, (d) the licensing of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business, (e) the granting of Permitted Liens, (f) the sale or discount, in each case without recourse, of accounts receivable (excluding Eligible Accounts Receivable) arising in the ordinary course of business, but only in connection with the compromise or collection thereof, (g) any involuntary loss, damage or destruction of property, (h) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property, (i) the leasing, renting or subleasing of assets of a Borrower or its Subsidiaries in the ordinary course of business, (j) the sale or issuance of Equity Interests (other than Disqualified Equity Interests) of a Borrower or any CFC, (k) (i) the lapse of registered patents, trademarks, copyrights and other intellectual property of Borrowers and its Subsidiaries to the extent not economically desirable in the conduct of their business or (ii) the abandonment of patents, trademarks, copyrights, or other intellectual property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with respect
Schedule 1 – Defined Terms Page 46 to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Lender Group, (l) the making of Restricted Payments that are expressly permitted to be made pursuant to the Agreement, (m) the making of Permitted Investments, (n) transfers of assets (i) from a Borrower or any of its Subsidiaries to a Loan Party, and (ii) from any Subsidiary of Borrowers that is not a Loan Party to any other Subsidiary of Borrower, (o) dispositions of assets acquired by Borrowers and its Subsidiaries pursuant to a Permitted Acquisition consummated within 12 months of the date of the proposed disposition so long as (i) the consideration received for the assets to be so disposed is at least equal to the fair market value of such assets, (ii) the assets to be so disposed are not necessary or economically desirable in connection with the business of Borrowers and its Subsidiaries, and (iii) the assets to be so disposed are readily identifiable as assets acquired pursuant to the subject Permitted Acquisition, (p) dispositions of assets by Borrowers and its Subsidiaries with respect to the closing or sale of any dealership locations that are determined by Borrowers and their Subsidiaries to not be economically desirable in connection with the business of Borrowers and their Subsidiaries, (q) sales or dispositions of assets (other than Equity Interests of Subsidiaries of Borrowers) in each case for fair value; provided that (i) no Event of Default then exists or would be caused thereby, (ii) the aggregate fair market value of all assets disposed in any fiscal year pursuant to this clause (p) shall not exceed $25,000,000 and (iii) at least 70% of the net proceeds (calculated after repayment of Indebtedness secured by a Permitted Lien senior to Agent’s Liens on the assets sold or disposed) of such sales or disposition is in cash and is deposited into the Designated Account promptly after the consummation of such sale or disposition; provided, further that in the event the sale or disposition of assets includes any Accounts or Inventory (including any Inventory returned to the applicable vendor in connection with the closure of a store by Borrowers), in addition to satisfaction of clauses (i), (ii) and (iii) in this clause (p), Borrowers shall also deliver to Agent, at least two (2) Business Days prior to such sale or disposition, updated Borrowing Base Certificates reflecting such sale or disposition of such Accounts or Inventory, (r) return to the original manufacturer of Inventory which is not included in the Global Borrowing Base in connection with a store closing or the sale of assets of a dealership location permitted hereunder, in exchange for credit or cash payment, (s) sales or dispositions of assets (other than Accounts, Inventory, Equity Interests of Subsidiaries of Borrowers) not otherwise permitted in clauses (a) through (r) above so long as (i) no Event of Default then exists or would be caused thereby, (ii) such sale or disposition is made at fair market value and (iii) the aggregate fair market value of all assets disposed of in fiscal year (including the proposed disposition) would not exceed $50,000,000, (t) dispositions of Equipment or Real Property to the extent that: (i) such property is exchanged for credit against the purchase price of similar replacement property within 180 days of the underlying disposition; or (ii) the proceeds of such disposition are reasonably promptly applied to the purchase price of such replacement property within 180 days of the underlying disposition,
Schedule 1 – Defined Terms Page 47 (u) the unwinding of any Hedge Agreement, (v) so long as no Default or Event of Default exists or would result therefrom, disposition of the Equity Interests of a CFC or of a CFC’s assets, (w) so long as no Default or Event of Default exists or would result therefrom, disposition of the Equity Interests of an Excluded Subsidiary or of an Excluded Subsidiary’s assets; and (x) dispositions of Real Property consisting of sale and leaseback transactions which (i) are completed on arms-length terms, (ii) for fair market value and (iii) do not exceed $50,000,000 in the aggregate in a calendar year. “Permitted Indebtedness” means: (a) Indebtedness evidenced by the Agreement or the other Loan Documents, (b) Indebtedness set forth on Schedule 4.14(b) to the Agreement and any Refinancing Indebtedness in respect of such Indebtedness, (c) Permitted Purchase Money Indebtedness, Permitted Real Estate Capital Leases, and Permitted Real Estate Financing and any Refinancing Indebtedness in respect of any such Indebtedness, (d) endorsement of instruments or other payment items for deposit, (e) Indebtedness consisting of (i) unsecured guarantees incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal bonds, completion guarantee and similar obligations; (ii) unsecured guarantees arising with respect to customary indemnification obligations to purchasers in connection with Permitted Dispositions; and (iii) unsecured guarantees with respect to Indebtedness of a Borrower or one of its Subsidiaries, to the extent that the Person that is obligated under such guaranty could have incurred such underlying Indebtedness, (f) unsecured Indebtedness of Borrowers or any of its Subsidiaries that is incurred on the date of the consummation of a Permitted Acquisition solely for the purpose of consummating such Permitted Acquisition so long as (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) such unsecured Indebtedness is not incurred for working capital purposes, (iii) such unsecured Indebtedness does not mature prior to the date that is 180 days after the Maturity Date, and (iv) such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to Agent, (g) Acquired Indebtedness (provided that in the case of Permitted Shortline Debt, purchase money Indebtedness or a Capital Lease with respect to Equipment or mortgage financing with respect to Real Property, collectively, in an amount not to exceed $50,000,000 outstanding at any one time) and any Refinancing Indebtedness in respect of such Indebtedness, (h) Indebtedness incurred in the ordinary course of business under performance, surety, statutory, or appeal bonds, or with respect to workers’ compensation claims or in respect of health,
Schedule 1 – Defined Terms Page 48 disability or other employee benefits, or bankers’ acceptances and similar obligations not constituting Indebtedness for borrowed money, (i) Indebtedness owed to any Person providing property, casualty, liability, or other insurance to Borrowers or any of its Subsidiaries, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year, (j) the incurrence by Borrowers or its Subsidiaries of Indebtedness under Hedge Agreements that are incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with Borrowers’ and its Subsidiaries’ operations and not for speculative purposes, (k) Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card processing services, -debit cards, stored value cards, commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”), or Cash Management Services, (l) unsecured Indebtedness of Borrowers owing to former employees, officers, or directors (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase by Borrowers of the Equity Interests of Borrowers that has been issued to such Persons, so long as (i) no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, (ii) the aggregate amount of all such Indebtedness outstanding at any one time does not exceed $2,500,000, and (iii) such Indebtedness is subordinated to the Obligations on terms and conditions reasonably acceptable to Agent, (m) unsecured Indebtedness owing to sellers of assets or Equity Interests to a Borrower or any of its Subsidiaries that is incurred by the Borrowers or its applicable Subsidiary in connection with the consummation of a Permitted Acquisition so long as the aggregate principal amount per Acquisition for all such unsecured Indebtedness does not exceed $10,000,000 for such Acquisition, and does not exceed $25,000,000 at any one time outstanding, (n) contingent liabilities in respect of any indemnification obligation, adjustment of purchase price, non-compete, or similar obligation of a Borrower or any of its Subsidiaries incurred in connection with the consummation of one or more Permitted Acquisitions, (o) Indebtedness composing Permitted Investments, (p) unsecured Indebtedness incurred in respect of netting services, overdraft protection, and other like services, in each case, incurred in the ordinary course of business, (q) unsecured Indebtedness of a Borrower or its Subsidiaries in respect of Earn-Outs owing to sellers of assets or Equity Interests to a Borrower or its Subsidiaries that is incurred in connection with the consummation of one or more Permitted Acquisitions so long as such unsecured Indebtedness is on terms and conditions reasonably acceptable to Agent, (r) (i) Indebtedness of any CFC, and (ii) unsecured guarantees by a Borrower or another Loan Party of such Indebtedness to the extent that such guarantees constitute Permitted Intercompany
Schedule 1 – Defined Terms Page 49 Advances under clause (d) of the definition thereof, and any Refinancing Indebtedness in respect of such Indebtedness, (s) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case, on Indebtedness that otherwise constitutes Permitted Indebtedness, (t) Subordinated Indebtedness, the aggregate outstanding amount of which does not exceed $50,000,000, and any Refinancing Indebtedness in respect of such Indebtedness, (u) DLL Floorplan Indebtedness and any Refinancing Indebtedness in respect of such Indebtedness, (v) CNH Floorplan Indebtedness, (w) NAB Indebtedness, (x) [Reserved], (y) Permitted Shortline Debt of the Loan Parties in an aggregate principal amount not to exceed $100,000,000 at any time outstanding, and any Refinancing Indebtedness in respect of such Indebtedness, (z) Indebtedness to finance Rental Fleet Equipment, the aggregate outstanding amount of which does not exceed $75,000,000, and any Refinancing Indebtedness in respect of such Indebtedness, in each case so long as such Indebtedness is subject to an intercreditor agreement in form and substance at least as favorable to the Lender Group as any then existing intercreditor agreement and otherwise reasonably satisfactory to Agent, and any Refinancing Indebtedness in respect of such Indebtedness, (aa) Guarantees by a Borrower or any Subsidiary thereof of Indebtedness otherwise permitted hereunder of any Loan Party, (bb) [Reserved], (cc) Indebtedness of an Excluded Subsidiary in an amount not to exceed $750,000 outstanding and any Permitted Refinancings thereof; and (dd) any other unsecured Indebtedness incurred by a Borrower or any of its Subsidiaries in an aggregate outstanding amount not to exceed $100,000,000 at any one time and any Refinancing Indebtedness in respect of such Indebtedness. “Permitted Intercompany Advances” means loans, guaranties and other Investments made by: (a) a Loan Party to another Loan Party, (b) a Subsidiary of a Borrower that is not a Loan Party to another Subsidiary of a Borrower that is not a Loan Party, (c) a Subsidiary of a Borrower that is not a Loan Party to a Loan Party, so long as the parties thereto are party to the Intercompany Subordination Agreement, and
Schedule 1 – Defined Terms Page 50 (d) a Loan Party to (or, in the case of guaranties, for the benefit of) a Subsidiary of a Borrower that is not a Loan Party so long as (i) with respect to all intercompany loans and other Investments (other than guaranties as provided in clause (ii) below), the aggregate amount of all such intercompany loans and other Investments (by type, not by the borrower) does not exceed $200,000,000 at any time outstanding (it being agreed and understood that all investments outstanding under this clause (i) on the Closing Date are as set forth on a schedule of permitted intercompany Investments delivered to Agent and Lenders prior to the Closing Date), (ii) with respect to all guaranties, such guaranties shall be unsecured, and (iii) at the time of the making of such loan, guarantee or other Investment, no Event of Default has occurred and is continuing or would result therefrom. “Permitted Interfacility Transfers” means any prepayment (without a corresponding permanent commitment reduction) of a Revolver loan or floorplan facility that constitutes Permitted Indebtedness to the extent funded with proceeds of borrowing by a U.S. Borrower under another Revolver loan or floorplan facility that constitutes Permitted Indebtedness, in each case resulting from the movement of assets among the borrowing bases of such revolving loan or floorplan facilities. “Permitted Investments” means: (a) Investments in cash and Cash Equivalents, (b) Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business, (c) advances made in connection with purchases of goods or services in the ordinary course of business, (d) Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries, (e) Investments owned by any Loan Party or any of its Subsidiaries on the Closing Date and set forth on Schedule P-1 to the Agreement, (f) guarantees permitted under the definition of Permitted Indebtedness, (g) Permitted Intercompany Advances, (h) Equity Interests or other securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to a Loan Party or its Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security for any such Indebtedness or claims, (i) deposits of cash made in the ordinary course of business to secure performance of operating leases or Capital Leases, (j) (i) non-cash loans and advances to employees, officers, and directors of a Borrower or any of its Subsidiaries for the purpose of purchasing Equity Interests in Borrowers so long as the
Schedule 1 – Defined Terms Page 51 proceeds of such loans are used in their entirety to purchase such Equity Interests in Borrowers, and (ii) loans and advances to employees and officers of a Borrower or any of its Subsidiaries in the ordinary course of business for any other business purpose and in an aggregate amount not to exceed $2,500,000 at any one time, (k) Permitted Acquisitions, (l) Investments in the form of capital contributions and the acquisition of Equity Interests made by any Loan Party in any other Loan Party (other than capital contributions to or the acquisition of Equity Interests of Borrowers), (m) Investments resulting from entering into (i) Bank Product Agreements, or (ii) agreements relative to Indebtedness that is permitted under clause (j) of the definition of Permitted Indebtedness, (n) equity Investments by any Loan Party in any Subsidiary of such Loan Party which is required by law to maintain a minimum net capital requirement or as may be otherwise required by applicable law, (o) Investments held by a Person acquired in a Permitted Acquisition to the extent that such Investments were not made in contemplation of or in connection with such Permitted Acquisition and were in existence on the date of such Permitted Acquisition, and (p) Capital Expenditures, (q) [Reserved], (r) Investments made for the benefit of employees of a Borrower or any of its Subsidiaries for the purposes of deferred compensation in an aggregate amount not to exceed $2,500,000 in any fiscal year, and (s) so long as no Event of Default has occurred and is continuing or would result therefrom, any other Investments in an aggregate amount not to exceed $30,000,000 during the term of the Agreement. “Permitted Liens” means: (a) Liens granted to, or for the benefit of, Agent to secure the Obligations, (b) Liens for unpaid taxes, assessments, or other governmental charges or levies that either (i) are not yet delinquent, or (ii) do not have priority over Agent’s Liens and the underlying taxes, assessments, or charges or levies are the subject of Permitted Protests, (c) judgment Liens arising solely as a result of the existence of judgments, orders, or awards that do not constitute an Event of Default under Section 8.3 of the Agreement, (d) Liens set forth on Schedule P-2 to the Agreement; provided, that to qualify as a Permitted Lien, any such Lien described on Schedule P-2 to the Agreement shall only secure the Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in respect thereof,
Schedule 1 – Defined Terms Page 52 (e) the interests of lessors under operating leases and licensors under license agreements, (f) purchase money Liens on fixed assets or the interests of lessors under Capital Leases to the extent that such Liens or interests secure Permitted Purchase Money Indebtedness or Permitted Real Estate Capital Leases and so long as (i) such Lien attaches only to the fixed asset purchased or acquired or the real estate subject thereto and the proceeds thereof, and (ii) such Lien only secures the Indebtedness that was incurred to acquire the fixed asset purchased or acquired or real estate subject thereto or any Refinancing Indebtedness in respect thereof, (g) Liens arising by operation of law in favor of warehousemen, landlords, carriers, mechanics, materialmen, laborers, or suppliers, incurred in the ordinary course of business and not in connection with the borrowing of money, and which Liens either (i) are for sums not yet delinquent, or (ii) are the subject of Permitted Protests, (h) Liens on amounts deposited to secure Borrowers’ and its Subsidiaries obligations in connection with worker’s compensation or other unemployment insurance, (i) Liens on amounts deposited to secure Borrowers’ and its Subsidiaries obligations in connection with the making or entering into of bids, tenders, or leases in the ordinary course of business and not in connection with the borrowing of money, (j) Liens on amounts deposited to secure Borrowers’ and its Subsidiaries reimbursement obligations with respect to surety or appeal bonds obtained in the ordinary course of business, (k) with respect to any Real Property, easements, rights of way, and zoning restrictions that do not materially interfere with or impair the use or operation thereof, (l) licenses of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business, (m) Liens that are replacements of Permitted Liens to the extent that the original Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the replacement Liens only encumber those assets that secured the original Indebtedness, (n) rights of setoff or bankers’ liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such Deposit Accounts in the ordinary course of business, (o) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness, (p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods, (q) Liens solely on any xxxx xxxxxxx money deposits made by a Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition,
Schedule 1 – Defined Terms Page 53 (r) Liens assumed by a Borrower or its Subsidiaries in connection with a Permitted Acquisition that secure Acquired Indebtedness, (s) subject to the terms of the DLL Intercreditor Agreement, Liens in favor of DLL to secure the DLL Floorplan Indebtedness, (t) subject to the terms of the CNH Intercreditor Agreement, Liens in favor of CNH to secure the CNH Floorplan Indebtedness, (u) subject to the terms of the NAB Intercreditor Agreement, Liens in favor of NAB to secure the NAB Indebtedness, (v) Liens securing Permitted Shortline Debt, (w) Liens securing Indebtedness permitted under clauses (j) and (y) of the definition of Permitted Indebtedness, (x) any Lien on assets of CFCs or Excluded Subsidiaries, provided that such Lien does not extend to, or encumber, (i) assets of a Borrower or any Loan Party, or (ii) the Equity Interests of a Borrower or any of its Subsidiaries, (y) any Liens on Real Property securing Permitted Real Estate Financing, (z) other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $10,000,000, and (aa) Liens arising by virtue only of the operation of 12(3) of the Australian PPSA. “Permitted Protest” means the right of a Borrower or any of its Subsidiaries to protest any Lien (other than any Lien that secures the Obligations), taxes (other than payroll taxes or taxes that are the subject of a United States federal tax lien), or rental payment, provided that (a) a reserve with respect to such obligation is established on Borrowers’ or its Subsidiaries’ books and records in such amount as is required under GAAP, (b) any such protest is instituted promptly and prosecuted diligently by a Borrower or its Subsidiary, as applicable, in good faith, and (c) Agent is satisfied that, while any such protest is pending, there will be no impairment of the enforceability, validity, or priority of any of Agent’s Liens. “Permitted Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations and Permitted Real Estate Financing, but including Capitalized Lease Obligations other than Permitted Real Estate Capital Leases), incurred at the time of, or within 90 days after, the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof, in an aggregate principal amount outstanding at any one time not in excess of $100,000,000. “Permitted Real Estate Capital Leases” means, as of any date of determination, Capitalized Lease Obligations incurred in connection with the sale, lease or use of real property, in an aggregate principal amount outstanding at any one time not in excess of $100,000,000.
Schedule 1 – Defined Terms Page 54 “Permitted Real Estate Financing” means, as of any date of determination, Indebtedness incurred in connection with the purchase, refinancing leasing (to the extent deemed indebtedness) or acquisition (in connection with a Permitted Acquisition) of Real Property, in an aggregate principal amount outstanding at any one time not in excess of $300,000,000 “Permitted Shortline Debt” means floor plan facilities with short line manufacturers, or facilities arranged by short line manufacturers for their products and services with third party financing sources, in the ordinary course of business. “Person” means natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political subdivisions thereof. “Platform” has the meaning specified therefor in Section 17.9(c) of the Agreement. “Post-Increase Additional Lenders” has the meaning specified therefor in Section 2.15. “Post-Increase Lenders” has the meaning specified therefor in Section 2.14. “Pre-Increase Additional Lenders” has the meaning specified therefor in Section 2.15. “Pre-Increase Lenders” has the meaning specified therefor in Section 2.14. “Prime Rate” means, rate of interest announced by Bank of America from time to time as its prime rate. Such rate is set by Bank of America on the basis of various factors, including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such rate. Any change in such rate publicly announced by Bank of America shall take effect at the opening of business on the day specified in the announcement. “Projections” means Borrowers’ consolidated and consolidating forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared on a basis consistent with Xxxxxxxx’s historical financial statements, together with appropriate supporting details and a statement of underlying assumptions. “Pro Rata Share” means, individually and collectively, U.S. Pro Rata Share and the Australian Pro Rata Share, as applicable. “Protective Advances” has the meaning specified therefor in Section 2.3(d)(ii) of the Agreement. “Public Lender” has the meaning specified therefor in Section 17.9(c) of the Agreement. “Purchase Price” means, with respect to any Acquisition, an amount equal to the aggregate consideration, whether cash, property or securities (including the fair market value of any Equity Interests of Borrowers issued in connection with such Acquisition and including the maximum amount of Earn-Outs), paid or delivered by Borrowers or one of its Subsidiaries in connection with such Acquisition (whether paid at the closing thereof or payable thereafter and whether fixed or contingent),
Schedule 1 – Defined Terms Page 55 but excluding therefrom (a) any cash of the seller and its Affiliates used to fund any portion of such consideration and (b) any cash or Cash Equivalents acquired in connection with such Acquisition. “Qualified Cash” means, as of any date of determination, the amount of unrestricted cash and Cash Equivalents of the Loan Parties and their Subsidiaries that is in Deposit Accounts subject of a Control Agreement and is maintained by a branch office of the bank located within the United States or within Australia. “Qualified ECP” means a Loan Party that constitutes an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” under Section 1a(18)(A)(v)(II) of such act. “Qualified Equity Interests” means and refers to any Equity Interests issued by Borrowers that is not a Disqualified Equity Interest. “Quarter End Borrowing” has the meaning specified therefor in Section 3.2 of the Agreement. “Rate Option Deadline” has the meaning specified therefor in Section 2.12(b)(i) of the Agreement. “Real Property” means any estates or interests in real property now owned or hereafter acquired by Borrowers or its Subsidiaries and the improvements thereto. “Real Property Collateral” means any Eligible Real Property and any other Real Property hereafter acquired by Borrowers or its Subsidiaries with a fair market value in excess of $15,000,000. “Receivable Reserves” means, as of any date of determination, those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Sections 2.1.1(c) and 2.1.2(c), to establish and maintain (including reserves for rebates, discounts, warranty claims, and returns) with respect to the Eligible Accounts, the U.S. Revolver Borrowing Base, the Australian Revolver Borrowing Base, the U.S. Maximum Revolver Amount or the Australian Maximum Revolver Amount. “Rescindable Amount” has the meaning as defined in Section 2.4(a)(ii). “Recipient” Agent, Issuing Bank, any Lender or any other recipient of a payment to be made by a Loan Party under a Loan Document or on account of an Obligation. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. “Reference Period” has the meaning set forth in the definition of EBITDAR. “Refinancing Indebtedness” means refinancings, renewals, or extensions of Indebtedness so long as: (a) such refinancings, renewals, or extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed, or extended, other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto,
Schedule 1 – Defined Terms Page 56 (b) such refinancings, renewals, or extensions do not result in a shortening of the average weighted maturity (measured as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or extended, nor are they on terms or conditions that, taken as a whole, are or could reasonably be expected to be materially adverse to the interests of the Lenders, (c) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension must include subordination terms and conditions that are at least as favorable to the Lender Group as those that were applicable to the refinanced, renewed, or extended Indebtedness, (d) if the Indebtedness that is refinanced, renewed, or extended was subject to an intercreditor agreement, then the terms and conditions of the refinancing, renewal, or extension must include intercreditor terms and conditions that are at least as favorable to the Lender Group as those that were applicable to the refinanced, renewed, or extended Indebtedness; and (e) the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person that is liable on account of the Obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended. “Register” has the meaning set forth in Section 13.1(h) of the Agreement. “Registered Loan” has the meaning set forth in Section 13.1(h) of the Agreement. “Related Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender. “Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws. “Rent Expense” means, for any period, total rental expenses attributable to operating leases of Borrowers for real property, determined on a consolidated basis in accordance with GAAP. “Rent-to-Own Expense” means, for any period, total non-cash expenses of Borrowers or any Subsidiary attributable to the cost of goods sold for retail inventory that is being rented on a rent-to- own basis, determined from financial statements prepared on a consolidated basis in accordance with GAAP. “Rental Fleet CapEx Amount” means, with respect to any period, an amount equal to (a) the amount of expenditures made to purchase Rental Fleet Equipment during such period to the extent funded with proceeds of Revolver Loans, multiplied by (b) an amount equal to 1 minus the advance rate applicable to Eligible Rental Equipment at the time of determination.
Schedule 1 – Defined Terms Page 57 “Rental Fleet Equipment” means equipment held for lease or rental by a Borrower or any other Loan Party that a Borrower or such Loan Party treats for accounting purposes as a fixed asset subject to depreciation or amortization and not as inventory held for resale. “Rental Fleet Transfer Amount” means, with respect to any period, an amount equal to (a) the net amount of Inventory consisting of new or used equipment that is designated by a Borrower as Rental Fleet Equipment during such period, multiplied by (b) an amount equal to 1 minus the advance rate applicable to Eligible Rental Equipment at the time of determination. “Replacement Lender” has the meaning specified therefor in Section 14.2(a) of the Agreement. “Report” has the meaning specified therefor in Section 15.16 of the Agreement. “Reporting Period” means any time on which Adjusted Excess Availability is less than the Reporting Threshold Amount. “Reporting Threshold Amount” means an amount equal to 17.5% of the lesser of (i) Global Borrowing Base and (ii) Global Maximum Credit Amount. “Required Lenders” means, at any time, Lenders having or holding more than 50% of the sum of (a) the aggregate Revolver Loan Exposure of all Lenders, plus (b) the aggregate Floorplan Loan Exposure of all Lenders; provided, that (i) the Revolver Loan Exposure and Floorplan Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders, and (ii) at any time there are 2 or more Lenders, “Required Lenders” must include at least 2 Lenders (who are not Affiliates of one another). “Reserves” means, as of any date of determination, those reserves (other than Receivable Reserves, Bank Product Reserves, Cash Settlement Reserves, Inventory Reserves and Foreign L/C Currency Reserves) that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Sections 2.1.1(c) and 2.1.2(c), to establish and maintain (including reserves with respect to (a) sums that Borrowers or its Subsidiaries are required to pay under any Section of the Agreement or any other Loan Document (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, (b) amounts of salaries, wages and benefits due to employees of any Loan Party (including amounts for employee wage claims for earned wages, vacation pay, health care reimbursements and other amounts due under, Wisconsin wage lien law, Wis. Stat 109.01, et seq.), and (c) amounts owing by Borrowers or its Subsidiaries to any Person to the extent secured by a Lien on, or trust over, any of the Collateral (other than a Permitted Lien), which Lien or trust, in the Permitted Discretion of Agent likely would have a priority superior to the Agent’s Liens (such as Liens or trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law) in and to such item of the Collateral) with respect to the U.S. Revolver Borrowing Base, the Australian Revolver Borrowing Base, the U.S. Maximum Revolver Amount, the Australian Maximum Revolver Amount, the U.S. Floorplan Borrowing Base, the Australian Floorplan Borrowing Base, the U.S. Maximum Floorplan Amount or the Australian Maximum Floorplan Amount, as applicable. “Restricted Payment” means to (a) declare or pay any dividend or make any other payment or distribution, directly or indirectly, on account of Equity Interests issued by Borrowers (including any payment in connection with any merger or consolidation involving a Borrower) or to the direct or
Schedule 1 – Defined Terms Page 58 indirect holders of Equity Interests issued by a Borrower in their capacity as such (other than dividends or distributions payable in Qualified Equity Interests issued by a Borrower, (b) purchase, redeem, make any sinking fund or similar payment, or otherwise acquire or retire for value (including in connection with any merger or consolidation involving a Borrower) any Equity Interests issued by a Borrower, (c) make any payment to retire, or to obtain the surrender of, any outstanding warrants, options, or other rights to acquire Equity Interests of a Borrower now or hereafter outstanding, or (d) make, or cause or suffer to permit any of Borrowers’ Subsidiaries to make, any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in- substance or legal defeasance), sinking fund or similar payment with respect to, any Subordinated Indebtedness (other than Permitted Intercompany Advances) in violation of any subordination provisions applicable thereto (it being acknowledged that payments that are not restricted by the subordination provisions applicable thereto are not Restricted Payments). “Revolver Commitment” means, individually and collectively, the U.S. Revolver Commitment and Australian Revolver Commitment, as applicable. “Revolver Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such Xxxxxx’s Pro Rata Share of the U.S. Revolver Swing Loans on such date. “Revolver Lender” means, individually and collectively, the U.S. Revolver Lenders and the Australian Revolver Lenders. “Revolver Loan Exposure” means, with respect to any Revolver Lender, as of any date of determination (a) prior to the termination of the Revolver Commitments, the amount of such Xxxxxx’s Revolver Commitment, and (b) after the termination of the Revolver Commitments, the aggregate outstanding principal amount of the Revolver Loans of such Lender. “Revolver Loans” means, individually and collectively, the U.S. Revolver Loans and the Australian Revolver Loans, as applicable. “Rolling Stock” means, at any time, a Loan Party’s trucks, trailers, motor vehicles or other over-the-road items used in the ordinary course of the Loan Party’s business. “Sanctions” means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti- terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the European Union or any European Union member state, (d) His Majesty's Treasury of the United Kingdom, or (d) any other Governmental Authority with jurisdiction over any member of Lender Group or any Loan Party or any of their respective Subsidiaries or Affiliates. “Sanctioned Entity” means (a) a country or territory or a government of a country or territory, (b) an agency of the government of a country or territory, (c) an organization directly or indirectly controlled by a country or territory or its government, or (d) a Person resident in or determined to be resident in a country or territory, in each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country sanctions program administered and enforced by OFAC.
Schedule 1 – Defined Terms Page 59 “Sanctioned Person” means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC's consolidated Non-SDN list or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above. “S&P” has the meaning specified therefor in the definition of Cash Equivalents. “Scheduled Unavailability Date” has the meaning set forth in Section 2.13. “SEC” means the United States Securities and Exchange Commission and any successor thereto. “Securities Account” means a securities account (as that term is defined in the Code). “Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute. “Settlement” has the meaning specified therefor in Section 2.3(e)(i) of the Agreement. “Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of the Agreement. “SOFR” the secured overnight financing rate as administered by FRBNY (or a successor administrator). “SOFR Adjustment” means(a) with respect to Daily Simple SOFR, 0.11448%; and (b) with respect to Term SOFR, 0.11448% for a one month Interest Period, 0.26161% for a three month Interest Period and 0.42826% for a six month Interest Period. “SOFR Notice” means a written notice in the form of Exhibit L-1 to the Agreement. “SOFR Option” has the meaning specified therefor in Section 2.12(a) of the Agreement. “SOFR Rate Margin” has the meaning set forth in the definition of Applicable Margin. “Solvent” means, with respect to any Person as of any date of determination, that (a) at fair valuations, the sum of such Person’s debts (including contingent liabilities) is less than all of such Person’s assets, (b) such Person is not engaged or about to engage in a business or transaction for which the remaining assets of such Person are unreasonably small in relation to the business or transaction or for which the property remaining with such Person is an unreasonably small capital, and (c) such Person has not incurred and does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (d) such Person is “solvent” or not “insolvent”, as applicable within the meaning given those terms and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time 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
Schedule 1 – Defined Terms Page 60 contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5). “Specified Obligor” means a Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act. “Spot Rate” means the exchange rate, as determined by Agent, that is applicable to conversion of one currency into another currency, which is (a) the exchange rate reported by Bloomberg (or other commercially available source designated by Agent) as of the end of the preceding business day in the financial market for the first currency; or (b) if such report is unavailable for any reason, the spot rate for the purchase of the first currency with the second currency as in effect during the preceding business day in Agent’s principal foreign exchange trading office for the first currency. “Standard Letter of Credit Practice” means, for Issuing Bank, any domestic or foreign law or letter of credit practices applicable in the city in which Issuing Bank issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a) which letter of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit. “Subordinated Indebtedness” means any unsecured Indebtedness of a Borrower or its Subsidiaries incurred from time to time that is subordinated in right of payment to the Obligations on terms and conditions reasonably acceptable to Agent. “Subsidiary” of a Person means a corporation, partnership, limited liability company, or other entity in which that Person directly or indirectly owns or controls the Equity Interests having ordinary voting power to elect a majority of the Board of Directors of such corporation, partnership, limited liability company, or other entity. “Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Floorplan Swing Loan Exposure and/or Revolver Swing Loan Exposure, as applicable. “Syndication Agent” has the meaning set forth in the preamble to the Agreement. “Taxes” means any taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect thereto. “Term SOFR” (a) for any Interest Period relating to a U.S. Revolver Loan or U.S. Floorplan Loan (other than a U.S. Base Rate Loan), a per annum rate equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to such Interest Period, with a term equivalent to such Interest Period (or if such rate is not published prior to 11:00 a.m. on the determination date, the applicable Term SOFR Screen Rate on the U.S. Government Securities Business Day immediately prior thereto), plus the SOFR Adjustment for such Interest Period; and (b) for any interest calculation relating to a U.S. Base Rate Loan on any day, a fluctuating rate of interest equal to the Term SOFR Screen Rate with a term of one month commencing that day; provided, that in no event shall Term SOFR be less than zero.
Schedule 1 – Defined Terms Page 61 “Term SOFR Screen Rate” the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Agent) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Agent from time to time). “Tax Lender” has the meaning specified therefor in Section 14.2(a) of the Agreement. “Total Assets” means, as of any date of determination, the value of the assets reflected on the consolidated balance sheet of Borrowers and its Subsidiaries as of such date prepared in accordance with GAAP. “Trademark Security Agreement” has the meaning specified therefor in the Guaranty and Security Agreement. “Triggering Event” has the meaning specified therefor in the Guaranty and Security Agreement. “UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Letter of Credit is issued. “United States” means the United States of America. “Unused Line Fee” has the meaning specified therefor in Section 2.10(b) of the Agreement. “U.S. Aggregate Borrowing Base” means, as of any date of determination, the sum of (a) the U.S. Floorplan Borrowing Base, plus (b) the U.S. Revolver Borrowing Base. “U.S. Aggregate Usage” means, as of any date of determination, the sum of (a) U.S. Floorplan Usage, plus (b) U.S. Revolver Usage. “U.S. Base Rate Loan” means each portion of the U.S. Revolver Loans or the U.S. Floorplan Loans that bears interest at a rate determined by reference to the Base Rate. “U.S. Borrowers” has the meaning specified therefor in the preamble to the Agreement. “U.S. Collateral” means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by a U.S. Borrower or any of its Subsidiaries in or upon which a Lien is granted by such Person in favor of Agent or the Lenders under any of the Loan Documents. “U.S. Floorplan Availability” means, as of any date of determination, the amount that U.S. Borrowers are entitled to borrow as U.S. Floorplan Loans under Section 2.2 of the Agreement (after giving effect to the then outstanding U.S. Floorplan Usage). “U.S. Floorplan Borrowing Base” means, with respect to a U.S. Borrower, as of any date of determination, the result of: (a) the lesser of (i) the product of 85% multiplied by the value (calculated at the lower of cost or market on a basis consistent with U.S. Borrowers’ historical accounting practices) of Eligible
Schedule 1 – Defined Terms Page 62 New Floorplan Equipment owned by a U.S. Borrower, which at such time is aged less than twelve (12) months, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent inventory appraisal ordered and obtained by Agent multiplied by the value of Eligible New Floorplan Equipment owned by a U.S. Borrower, which at such time is aged less than twelve (12) months (such determination may be made as to different categories of Eligible New Floorplan Equipment owned by a U.S. Borrower, based upon the Net Recovery Percentage applicable to such categories) at such time, plus (b) the lesser of (i) the product of 80% multiplied by the value (calculated at the lower of cost or market on a basis consistent with U.S. Borrower’s historical accounting practices) of Eligible New Floorplan Equipment owned by a U.S. Borrower, which at such time is aged equal to or greater than twelve (12) months, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent inventory appraisal ordered and obtained by Agent multiplied by the value of Eligible New Floorplan Equipment owned by a U.S. Borrower, which at such time is aged equal to or greater than twelve (12) months (such determination may be made as to different categories of Eligible New Floorplan Equipment owned by a U.S. Borrower, based upon the Net Recovery Percentage applicable to such categories) at such time, plus (c) the lesser of (i) the product of 75% multiplied by the value (calculated at the lower of cost or market on a basis consistent with U.S. Borrowers’ historical accounting practices) of Eligible Used Floorplan Equipment owned by a U.S. Borrower at such time, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent inventory appraisal ordered and obtained by Agent multiplied by the value of Eligible Used Floorplan Equipment owned by a U.S. Borrower at such time (such determination may be made as to different categories of Eligible Used Floorplan Equipment owned by a U.S. Borrower based upon the Net Recovery Percentage applicable to such categories) at such time, minus (d) the aggregate amount of Bank Product Reserves, Inventory Reserves, Cash Settlement Reserves and other Reserves, if any, established by Agent under Section 2.2(c) of the Agreement with respect to the U.S. Floorplan Borrowing Base. Notwithstanding the foregoing, in no event shall the aggregate amount determined under clauses (b) and (c) of the U.S. Floorplan Borrowing Base with respect Eligible New Floorplan Equipment owned by a U.S. Borrower and Eligible Used Floorplan Equipment owned by a U.S. Borrower aged twenty-four (24) to thirty-six (36) months be greater than 15% of the U.S. Maximum Credit Amount. “U.S. Floorplan Borrowing Base Certificate” means a certificate in the form of Exhibit B-2(i). “U.S. Floorplan Commitment” means, with respect to each U.S. Floorplan Lender, its U.S. Floorplan Commitment, and, with respect to all U.S. Floorplan Lenders, their U.S. Floorplan Commitments, in each case as such Dollar amounts are set forth beside such U.S. Floorplan Lender’s name under the applicable heading on Schedule C-1 to the Agreement or in the Assignment and Acceptance pursuant to which such U.S. Floorplan Lender became a U.S. Floorplan Lender under the Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement and reallocations made in accordance with the provisions of Section 2.4(g) of the Agreement.
Schedule 1 – Defined Terms Page 63 “Used Floorplan Equipment” means used equipment other than Cores Inventory that is (a) not subject to financing with a third party and (b) aged less than thirty-six (36) months. “U.S. Floorplan Lender” means a U.S. Lender that has a U.S. Floorplan Commitment or that has an outstanding U.S. Floorplan Loan. “U.S. Floorplan Loans” has the meaning specified therefor in Section 2.2.1(a) of the Agreement “U.S. Floorplan Overadvance” means, as of any date of determination, that the U.S. Floorplan Usage is greater than any of the limitations set forth in Section 2.2 or Section 2.11. “U.S. Floorplan Swing Lender” means Bank of America or any other U.S. Lender that, at the request of U.S. Borrowers and with the consent of Agent agrees, in such U.S. Xxxxxx’s sole discretion, to become the U.S. Floorplan Swing Lender under Section 2.3(b)(ii) of the Agreement. “U.S. Floorplan Swing Loan” has the meaning specified therefor in Section 2.3(b)(ii) of the Agreement. “U.S. Floorplan Usage” means as of any date of determination, the amount of outstanding U.S. Floorplan Loans (inclusive of U.S. Floorplan Swing Loans and U.S. Floorplan Protective Advances). “U.S. Government Securities Business Day” means, any Business Day, except any day on which the Securities Industry and Financial Markets Association, New York Stock Exchange or FRBNY is not open for business because the day is a legal holiday under New York law or U.S. federal law. “U.S. LC Subline” means $65,000,000. “U.S. Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn amount of all outstanding Letters of Credit issued at the request of a U.S. Borrower. “U.S. Lender” means each U.S. Floorplan Lender and/or each U.S. Revolver Lender, as the context requires. “U.S. Maximum Credit Amount” means, as of any date of determination, an amount equal to (a) the U.S. Maximum Revolver Amount plus (b) the U.S. Maximum Floorplan Amount at such time. As of the Closing Date, the U.S. Maximum Credit Amount is $430,000,000. “U.S. Maximum Floorplan Amount” means $340,000,000, decreased by the amount of reductions in the U.S. Floorplan Commitments made in accordance with Section 2.4(c) of the Agreement and increased in accordance with Sections 2.14 and 2.15 of the Agreement. “U.S. Maximum Revolver Amount” means $90,000,000, decreased by the amount of reductions in the U.S. Revolver Commitments made in accordance with Section 2.4(c) of the Agreement and increased in accordance with Sections 2.14 and 2.15 of the Agreement. “U.S. Obligations” means, all Obligations of U.S. Borrowers. “U.S. Pro Rata Share” means, as of any date of determination:
Schedule 1 – Defined Terms Page 64 (a) with respect to a Lender’s obligation to make all or a portion of the U.S. Revolver Loans, with respect to such Xxxxxx’s right to receive payments of interest, fees, and principal with respect to the U.S. Revolver Loans, and with respect to all other computations and other matters related to the U.S. Revolver Commitments or the U.S. Revolver Loans, the percentage obtained by dividing (i) the Revolver Loan Exposure of such Lender by (ii) the aggregate Revolver Loan Exposure of all Lenders, (b) with respect to a Lender’s obligation to participate in the Letters of Credit, with respect to such Xxxxxx’s obligation to reimburse Issuing Bank, and with respect to such Lender’s right to receive payments of U.S. Letter of Credit Fees, and with respect to all other computations and other matters related to the Letters of Credit, the percentage obtained by dividing (i) the Floorplan Loan Exposure of such Lender by (ii) the aggregate U.S. Floorplan Loan Exposure of all Lenders; provided, that if all of the Loans have been repaid in full and all Commitments have been terminated, but Letters of Credit remain outstanding, U.S. Pro Rata Share under this clause shall be determined as if the U.S. Floorplan Commitments had not been terminated and based upon the U.S. Floorplan Commitments as they existed immediately prior to their termination, (c) with respect to a Lender’s obligation to make all or a portion of the U.S. Floorplan Loans, with respect to such Xxxxxx’s right to receive payments of interest, fees, and principal with respect to the U.S. Floorplan Loans, and with respect to all other computations and other matters related to the U.S. Floorplan Commitments or the U.S. Floorplan Loans, the percentage obtained by dividing (i) the U.S. Floorplan Loan Exposure of such Lender by (ii) the aggregate U.S. Floorplan Loan Exposure of all Lenders, and (d) with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under Section 15.7 of the Agreement), the percentage obtained by dividing (i) the sum of the Floorplan Loan Exposure of such Lender plus the Revolver Loan Exposure of such Lender by (ii) the sum of the aggregate Floorplan Loan Exposure of all Lenders plus the aggregate Revolver Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 13.1; provided, that if all of the Loans have been repaid in full, all Letters of Credit have been made the subject of Letter of Credit Collateralization, and all Commitments have been terminated, U.S. Pro Rata Share under this clause shall be determined as if the Revolver Loan Exposures and the Floorplan Loan Exposures had not been repaid, collateralized, or terminated and shall be based upon the Revolver Loan Exposures and Floorplan Loan Exposures as they existed immediately prior to their repayment, collateralization, or termination. “U.S. Required Lenders” means, at any time, U.S. Lenders having or holding more than 50% of the sum of (a) the aggregate Revolver Loan Exposure of all U.S. Lenders, plus (b) the aggregate Floorplan Loan Exposure of all U.S. Lenders; provided, that (i) the Revolver Loan Exposure and Floorplan Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the U.S. Required Lenders, and (ii) at any time there are 2 or more U.S. Lenders, “U.S. Required Lenders” must include at least 2 U.S. Lenders (who are not Affiliates of one another). “U.S. Revolver Commitment” means, with respect to each U.S. Revolver Lender, its U.S. Revolver Commitment, and, with respect to all U.S. Revolver Lenders, their U.S. Revolver Commitments, in each case as such Dollar amounts are set forth beside such U.S. Revolver Lender’s name under the applicable heading on Schedule C-1 to the Agreement or in the Assignment and Acceptance pursuant to which such U.S. Revolver Lender became a U.S. Revolver Lender under the
Schedule 1 – Defined Terms Page 65 Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement and reallocations made in accordance with the provisions of Section 2.4(g) of the Agreement. “U.S. Revolver Lender” means a Lender that has a U.S. Revolver Commitment or that has an outstanding U.S. Revolver Loan. “U.S. Revolver Availability” means, as of any date of determination, the amount that U.S. Borrowers are entitled to borrow as U.S. Revolver Loans under Section 2.1 of the Agreement (after giving effect to the then outstanding U.S. Revolver Usage). “U.S. Revolver Borrowing Base” means, with respect to a U.S. Borrower, as of any date of determination, the result of: (a) 85% of the amount of Eligible Accounts owed to a U.S. Borrower, less the amount, if any, of the Dilution Reserve, plus (b) 85% of the amount of Eligible Credit Card Accounts owed to a U.S. Borrower, plus (c) the lesser of (i) the product of 75% multiplied by the value (calculated at the lower of cost or market on a basis consistent with U.S. Borrowers’ historical accounting practices) of Eligible Rental Equipment owned by a U.S. Borrower and Eligible Parts and Attachments Inventory owned by a U.S. Borrower at such time, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent inventory appraisal ordered and obtained by Agent multiplied by the value of Eligible Rental Equipment owned by a U.S. Borrower and Eligible Parts and Attachments Inventory owned by a U.S. Borrower at such time (such determination may be made as to different categories of Eligible Rental Equipment owned by a U.S. Borrower and Eligible Parts and Attachments Inventory owned by a U.S. Borrower based upon the Net Recovery Percentage applicable to such categories) at such time, plus (d) 65% of the appraised fair market value of Eligible Real Property of U.S. Borrowers (as determined on the applicable Election Date by an appraisal in form and substance and conducted by an appraiser satisfactory to Agent); provided, that such amount shall be reduced monthly commencing on the first day of the month following the applicable Election Date and continuing on the first day of each month thereafter in equal monthly reductions determined based on a 180 month amortization schedule, plus (e) 80% of the appraised fair market value of Eligible Rolling Stock/Equipment of U.S. Borrowers, (as determined on the applicable Election Date by an appraisal in form and substance and conducted by an appraiser satisfactory to Agent); provided, that such amount shall be reduced monthly commencing on the first day of the month following the applicable Election Date and continuing on the first day of each month thereafter in equal monthly reductions determined based on a 84 month amortization schedule, minus (f) the aggregate amount of Receivables Reserves, Bank Product Reserves, Inventory Reserves, Cash Settlement Reserves and other Reserves, if any, established by Agent under Section 2.1.1(c) of the Agreement with respect to the U.S. Revolver Borrowing Base.
Schedule 1 – Defined Terms Page 66 Notwithstanding the foregoing, in no event shall the amount (i) determined under clause (c) of the U.S. Revolver Borrowing Base with respect Eligible Rental Equipment owned by a U.S. Borrower be greater than 25% of the U.S. Maximum Credit Amount, (ii) determined by adding the amount under clauses (d) and (e) of the U.S. Revolver Borrowing Base with respect Eligible Real Property owned by a U.S. Borrower and Eligible Vehicles owned by a U.S. Borrower be greater than the lesser of (x) 12.5% of the U.S. Maximum Credit Amount and (y) $50,000,000; provided, that the amount under clauses (d) and (e) shall be deemed to be $0 at any time the Fixed Charge Coverage Ratio for the 12 month period most recently ended prior to such date of determination for which Agent has received financial statements of Borrowers pursuant to Schedule 5.1 is less than 1.10 to 1.00 or (iii) determined under clause (a) of the U.S. Revolver Borrowing Base with respect to Extended Terms Accounts be greater than $10,000,000. “U.S. Revolver Borrowing Base Certificate” means a certificate in the form of Exhibit B-1(i). “U.S. Revolver Loans” has the meaning specified therefor in Section 2.1.1(a) of the Agreement. “U.S. Revolver Overadvance” means, as of any date of determination, that the U.S. Revolver Usage is greater than any of the limitations set forth in Section 2.1. “U.S. Revolver Swing Lender” means Bank of America or any other U.S. Lender that, at the request of a U.S. Borrower and with the consent of Agent agrees, in such U.S. Xxxxxx’s sole discretion, to become the U.S. Revolver Swing Lender under Section 2.3(b)(i) of the Agreement. “U.S. Revolver Swing Loan” which has the meaning specified therefor in Section 2.3(b)(i) of the Agreement. “U.S. Revolver Usage” means, as of any date of determination, the sum of (a) the amount of outstanding U.S. Revolver Loans (inclusive of U.S. Revolver Swing Loans and U.S. Protective Revolver Advances), plus (b) the amount of the U.S. Letter of Credit Usage. “U.S. SOFR Rate Loan” means each portion of a U.S. Revolver Loan or the U.S. Floorplan Loans that bears interest at a rate determined by reference to the Term SOFR. “U.S. Supermajority Lenders” means, at any time, U.S. Lenders having or holding more than 66 2/3% of the sum of (a) the aggregate Revolver Loan Exposure of all U.S. Lenders, plus (b) the aggregate Floorplan Loan Exposure of all U.S. Lenders; provided, that (i) the Revolver Loan Exposure and Floorplan Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the U.S. Required Lenders, and (ii) at any time there are 2 or more U.S. Lenders, “Supermajority Lenders” must include at least 2 U.S. Lenders (who are not Affiliates of one another). “U.S. Swing Lender” and “U.S. Swing Lenders” means, individually or collectively as required by the context, the U.S. Floorplan Swing Lender and the U.S. Revolver Swing Lender. “Voidable Transfer” has the meaning specified therefor in Section 17.8 of the Agreement. “Write-Down and Conversion Powers” means the write-down and conversion powers of the applicable EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which powers are described in the EU Bail-In Legislation Schedule.