FIRST AMENDMENT AGREEMENT
Exhibit 10.1
Execution Version
This FIRST AMENDMENT AGREEMENT, dated as of January 19, 2024 (this “Agreement”), is entered into by and among each undersigned Lender (as defined below) that is party to the Existing Credit Agreement (as defined below) (each, a “Consenting Lender” and, collectively, the “Consenting Lenders”) and each undersigned Lender with 2024 Canadian Revolving Facility Commitments (as defined below) in respect of the 2024 Canadian Revolving Facility Loans (as defined below) (each, a “2024 Canadian Revolving Facility Lender” and, collectively, the “2024 Canadian Revolving Facility Lenders”), OPENLANE, INC., a Delaware corporation (the “Borrower”), the Canadian Borrower (as defined below), the other Loan Parties (as defined in the Credit Agreement referred to below) party hereto, JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”) and an Issuing Lender (as defined in the Credit Agreement referred to below), the Closing Date Revolving Facility Swingline Lender (as defined in the Credit Agreement referred to below) and the 2024 Canadian Revolving Facility Swingline Lender (as defined in the Credit Agreement referred to below) and each other Issuing Lender party hereto.
PRELIMINARY STATEMENTS
WHEREAS, reference is made to the Credit Agreement, dated as of June 23, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time immediately prior to the effectiveness of this Agreement, the “Existing Credit Agreement” and, as amended by this Agreement, and as it may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the Canadian Borrower, the several banks and other financial institutions or entities from time to time party thereto (the “Lenders”) and the Administrative Agent. Capitalized terms used but not otherwise defined herein are used with the meanings given in the Credit Agreement;
WHEREAS, on the terms and subject to the conditions of the Existing Credit Agreement, pursuant to Section 11.1 thereof, the Borrower may amend the Existing Credit Agreement to, among other things, add one or more additional credit facilities and permit the extensions of credit from time to time thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of the Existing Credit Agreement and the other Loan Documents (as defined in the Existing Credit Agreement) with the Term Loans (as defined in the Existing Credit Agreement) and Revolving Extensions of Credit (as defined in the Existing Credit Agreement) and the accrued interest and fees in respect thereof;
WHEREAS, the Borrower and the Canadian Borrower hereby request (i) the establishment of (x) Revolving Facility Commitments in Canadian Dollars in an aggregate principal amount of C$175,000,000 (the “2024 Canadian Revolving Facility Commitments” and the loans thereunder, the “2024 Canadian Revolving Facility Loans”) and (y) the Canadian Sublimit (as defined below) and (ii) certain other amendments to the Existing Credit Agreement as set forth in Section 3 hereof;
WHEREAS, on the First Amendment Effective Date (as defined below), subject to the terms and conditions set forth herein and in accordance with Section 11.1 of the Existing Credit Agreement, each 2024 Canadian Revolving Facility Lender has agreed to provide the 2024 Canadian Revolving Facility Commitments in the amount set forth under “2024 Canadian Revolving Facility Commitment” in Schedule I hereto, and the 2024 Canadian Revolving Facility Commitments shall constitute a new tranche of Revolving Facility Commitment;
WHEREAS, the proceeds of the 2024 Canadian Revolving Facility Loans will be used by the Canadian Borrower on or after the First Amendment Effective Date (x) to finance a portion of the purchase price of the acquisition of certain assets from Manheim Canada (the “Manheim Acquisition”), (y) to pay fees and expenses accrued in connection with the transactions contemplated by this Agreement (the “Transactions”) and (z) for ongoing working capital needs and general corporate purposes;
WHEREAS, JPMorgan Chase Bank, N.A. is acting as the sole lead arranger, and JPMorgan Chase Bank, N.A., BMO Capital Markets Corp., BofA Securities, Inc and RBC Capital Markets are acting as joint bookrunners, in connection with the 2024 Canadian Revolving Facility Commitments provided pursuant to this Agreement;
WHEREAS, the Borrower desires to cause ADESA Auctions Canada Corporation, a Nova Scotia unlimited company (the “Canadian Borrower”), and each of the entities identified as “Canadian Loan Parties” on the signature pages hereto (together with the Canadian Borrower, each, a “Canadian Loan Party” and, collectively, the “Canadian Loan Parties”), to become a Loan Party under the Credit Agreement;
WHEREAS, the Borrower, the Canadian Borrower, the other Loan Parties party hereto, the undersigned Lenders, the Administrative Agent, the Closing Date Revolving Facility Swingline Lender, the 2024 Canadian Revolving Facility Swingline Lender and the Issuing Lenders have agreed to amend the Existing Credit Agreement as provided in Section 3 hereof on the First Amendment Effective Date (the “First Amendment Effective Date Amendments”);
WHEREAS, the Borrower, and each of the other entities identified as “Loan Parties” (other than the Canadian Loan Parties) on the signature pages hereto (each, a “Reaffirming Party” and, collectively, the “Reaffirming Parties”) expect to realize substantial direct and indirect benefits as a result of this Agreement (including the agreements set forth in Section 3 hereof becoming effective and the consummation of the transactions contemplated thereby) and desire to reaffirm their obligations pursuant to the U.S. Security Documents to which they are a party;
WHEREAS, the Canadian Loan Parties have agreed to enter into that certain Canadian Guarantee and Collateral Agreement on the First Amendment Effective Date (the “Canadian Guarantee and Collateral Agreement”) in favor of the Administrative Agent for the benefit of the Secured Parties, pursuant to which the Canadian Loan Parties will guarantee and secure the payment and performance of the Canadian Secured Obligations; and
WHEREAS, the Canadian Borrower and each of the other Canadian Loan Parties expect to realize substantial direct and indirect benefits as a result of obtaining the 2024 Canadian Revolving Facility and as a result of entering into this Agreement (including the agreements set forth in Section 3 hereof becoming effective and the consummation of the transactions contemplated thereby), the Canadian Guarantee and Collateral Agreement and the other Canadian Security Documents to which they are a party.
NOW, THEREFORE, in consideration of the premises and the agreements, other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Establishment of the Canadian Sublimit under the Closing Date Revolving Credit Facility.
Each Closing Date Revolving Facility Lender hereby agrees to amend the Credit Agreement to allow the Borrower and the Canadian Borrower to obtain Closing Date Revolving Facility Commitments in Canadian Dollars up to an amount not to exceed the lesser of (a) C$50,000,000 and (b) the total amount of the Closing Date Revolving Facility Commitments (the “Canadian Sublimit”). The Canadian Sublimit shall be a part of, and not in addition to, the Closing Date Revolving Facility Commitments.
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Section 2. Establishment of the 2024 Canadian Revolving Facility.
(i) Each 2024 Canadian Revolving Facility Lender hereby severally commits to provide its respective 2024 Canadian Revolving Facility Commitments as set forth on Schedule I hereto and to make its 2024 Canadian Revolving Facility Loans, on the terms and subject to the conditions set forth herein.
(ii) By executing and delivering this Agreement, each 2024 Canadian Revolving Facility Lender shall be deemed to confirm to and agree with the other parties signatory hereto as follows: (a) such 2024 Canadian Revolving Facility Lender has full power and authority, and has taken all action necessary, to execute and deliver this Agreement; (b) such 2024 Canadian Revolving Facility Lender confirms that it has received a copy of this Agreement, the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and the Credit Agreement, as applicable, and that it is sophisticated with respect to decisions to make loans similar to those contemplated to be made hereunder and that it is experienced in making loans of such type; (c) such 2024 Canadian Revolving Facility Xxxxxx agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, make its own credit decisions in taking or not taking action under this Agreement and the Credit Agreement; (d) such 2024 Canadian Revolving Facility Lender appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement, the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent, as the case may be, by the terms hereof and thereof, together with such powers as are reasonably incidental thereto; and (e) such 2024 Canadian Revolving Facility Lender agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement and the Credit Agreement it is required to perform as a 2024 Canadian Revolving Facility Lender.
(iii) Each Loan Party and each 2024 Canadian Revolving Facility Lender acknowledges and agrees that (a) upon its execution of this Agreement and the occurrence of the First Amendment Effective Date, each 2024 Canadian Revolving Facility Lender shall become a “Lender” and a “Revolving Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder; (b) notwithstanding anything to the contrary in the Credit Agreement or any Loan Document, each 2024 Canadian Revolving Facility Commitment shall be deemed a “Commitment” and a “Revolving Facility Commitment” under and for all purposes of, the Credit Agreement and the other Loan Documents, with such terms and conditions applicable thereto in each case as specified in the Credit Agreement or such Loan Document, unless otherwise separately and specifically stated therefor in this Agreement; (c) for purposes of Section 11.1 of the Credit Agreement, the 2024 Canadian Revolving Facility Loans shall be considered collectively with all other Loans for purposes of making determinations of “Required Lenders” (or for any consent requiring the consent of affected Lenders or of all of the Lenders) and shall be treated as Revolving Facility Loans for all other purposes thereunder in accordance with the Credit Agreement; and (d) the definition “Obligations” shall be deemed to include all unpaid principal of and accrued and unpaid interest on all 2024 Canadian Revolving Facility Loans.
Section 3. Amendments to the Existing Credit Agreement.
(a) Effective
as of the First Amendment Effective Date, the Existing Credit Agreement shall be amended, in accordance with the provisions of Section 11.1
thereof, by deleting the stricken text (indicated textually in the same manner as the following examples: stricken-text)
and adding the double-underlined text (indicated textually in the same manner as the following examples: double-underlined
text) as set forth on Exhibit A attached hereto.
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(b) Effective as of the First Amendment Effective Date, the form of Assignment and Assumption, set forth in Exhibit E-1 to the Existing Credit Agreement, is hereby amended and restated in its entirety as set forth in Exhibit B hereto.
(c) Effective as of the First Amendment Effective Date, the form of Affiliated Lender Assignment and Assumption, set forth in Exhibit E-2 to the Existing Credit Agreement, is hereby amended and restated in its entirety as set forth in Exhibit C hereto.
(d) Effective as of the First Amendment Effective Date, the form of Revolving Facility Note, set forth in Exhibit G-2 to the Existing Credit Agreement, is hereby replaced in its entirety by Exhibits D-1 and D-2 set forth hereto.
(e) Effective as of the First Amendment Effective Date, the form of Swingline Facility Note, set forth in Exhibit G-3 to the Existing Credit Agreement, is hereby replaced in its entirety by Exhibit E-1 and E-2 set forth hereto.
Section 4. Conditions to the First Amendment Effective Date.
This Agreement shall become a binding agreement of the parties hereto and the agreements set forth herein and the amendments set forth in Section 3 hereof shall each become effective on the date of the satisfaction (or waiver) of the following conditions (the date such conditions are satisfied or waived, the “First Amendment Effective Date”):
(a) (i) this Agreement shall have been duly executed by the Borrower, the Canadian Borrower, each other Loan Party, the Administrative Agent, the Issuing Lenders, the Closing Date Revolving Facility Swingline Lender, the 2024 Canadian Revolving Facility Swingline Lender, each Consenting Lender (constituting all of the Lenders under the Credit Agreement immediately prior to the First Amendment Effective Date) and each 2024 Canadian Revolving Facility Lender, and (ii) the Canadian Guarantee and Collateral Agreement and Canadian Intellectual Property Security Agreement shall each have been duly executed by the Canadian Loan Parties party thereto and the Administrative Agent and, in each case, delivered to the Administrative Agent;
(b) the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying that at the time of and immediately after the First Amendment Effective Date, the establishment of the 2024 Canadian Revolving Facility Commitments and the making of the 2024 Canadian Revolving Facility Loans on the First Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing;
(c) each of the representations and warranties made by any Loan Party set forth in each Loan Document (including those set forth in Section 5 of this Agreement) shall be true and correct in all material respects on and as of the First Amendment Effective Date as if made on and as of the First Amendment Effective Date, except, to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof;
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(d) the Administrative Agent shall have received a notice of borrowing from the Canadian Borrower with respect to the 2024 Canadian Revolving Facility Loans pursuant to Section 3.2(2) of the Credit Agreement;
(e) the Administrative Agent shall have received a customary written opinion of (i) Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, California, Delaware and New York counsel for the Loan Parties, (ii) Ice Xxxxxx LLP, Indiana counsel for the Loan Parties, (iii) Xxxxx, Xxxxxxx & Xxxxxxx LLP, Ontario Alberta, British Columbia and Quebec counsel for the Loan Parties, and (iv) Xxxxxxx XxXxxxxx, New Brunswick, Newfoundland and Labrador and Nova Scotia counsel for the Loan Parties, in each case, (x) dated the First Amendment Effective Date, (y) addressed to the Administrative Agent, the 2024 Canadian Revolving Facility Lenders and the Consenting Lenders and (z) otherwise in form and substance reasonably acceptable to the Administrative Agent;
(f) the Administrative Agent shall have received all fees payable thereto or to any Lender on or prior to the First Amendment Effective Date, and to the extent invoiced at least three (3) Business Day prior to the First Amendment Effective Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxx & Xxxxxxx LLP and XxXxxxxx LLP) required to be reimbursed or paid by the Loan Parties on the First Amendment Effective Date;
(g) the Administrative Agent shall have received a Solvency Certificate signed by the chief financial officer, chief accounting officer or other officer with equivalent duties of the Borrower certifying that the Loan Parties (including the Canadian Loan Parties), on a consolidated basis, immediately after the consummation of the Transactions, are Solvent;
(h) the Administrative Agent shall have received a certificate from a Responsible Officer of each Loan Party, dated the First Amendment Effective Date, certifying: (i) that attached thereto is a true and complete copy of the certificate or articles of incorporation, certificate of incorporation, certificate of formation, articles of organization or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official or Governmental Authority) of the jurisdiction of its organization or by the Secretary or Assistant Secretary or similar officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party; (ii) that attached thereto is a true and complete copy of the Organizational Documents of such Loan Party as in effect on the First Amendment Effective Date and at all times since a date prior to the date of the resolutions described in the following clause (iii), (iii) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member), authorizing and approving the transactions contemplated by this Agreement and the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the First Amendment Effective Date, (iv) as to the incumbency and specimen signature of each officer or authorized signatory executing this Agreement and the other Loan Documents to which such Loan Party is a party; and (v) that attached thereto is a true and complete copy of a certificate as to the good standing of such Loan Party (to the extent that such concept exists in such jurisdiction) as of a recent date from such Secretary of State (or other similar official or Governmental Authority);
(i) the Administrative Agent shall have received the results of recent lien searches with respect to each Canadian Loan Party in each applicable jurisdiction; and
(j) the Administrative Agent shall have received to the extent reasonably requested in writing by the Administrative Agent at least ten (10) Business Days prior to the First Amendment Effective Date, all documentation and other information required with respect to the Loan Parties by regulatory authorities under the applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, CAML and the Beneficial Ownership Regulation.
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Section 5. Post-Closing Obligations. The Canadian Loan Parties will, as applicable, take the actions set forth on Schedule II hereto within the time periods specified therein (or such later time as the Administrative Agent may have agreed to in its reasonable discretion). So long as the Canadian Loan Parties shall have complied with the immediately preceding sentence, the representations and warranties and covenants contained in this Agreement and the other Loan Documents in respect of any action described on Schedule II shall not be deemed violated solely due to the fact that any such action was not taken as of the First Amendment Effective Date (so long as any such representation and warranty or covenant with respect to any such action shall be true and correct in all material respects as of the date such action is taken (or was required to be taken as set forth in Schedule II (or such later time as the Administrative Agent may have agreed to in its reasonable discretion))).
Section 6. Representations and Warranties.
The Borrower represents and warrants that:
(a) Authority. The Borrower, the Canadian Borrower and the other Loan Parties have the organizational power and authority to make, deliver and perform its obligations under this Agreement and the Credit Agreement, as applicable. The Borrower, the Canadian Borrower and the other Loan Parties have taken all necessary organizational action to authorize the execution, delivery and performance by the Borrower, the Canadian Borrower and the other Loan Parties of this Agreement, and the performance by each Loan Party of each Loan Document to which it is a party.
(b) Enforceability. This Agreement has been duly executed and delivered on behalf of the Borrower, the Canadian Borrower and each other Loan Party party hereto. When the conditions to effectiveness in Section 4 of this Agreement have been satisfied (or waived), each of this Agreement and each Loan Document will constitute the legal, valid and binding obligation of each Loan Party party hereto and thereto, enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought in proceedings in equity or at law).
(c) Representations and Warranties. Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents are true and correct in all material respects on and as of the First Amendment Effective Date as if made on and as of the First Amendment Effective Date, except to the extent that such representations and warranties refer to an earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof.
(d) No Default. No Default or Event of Default has occurred and is continuing on and as of the date hereof or after giving effect to this Agreement.
(e) Use of Proceeds. The Canadian Borrower shall use the proceeds of the 2024 Canadian Revolving Facility (i) to finance a portion of the purchase price of the Manheim Acquisition, (ii) for ongoing working capital needs and general corporate purposes and (iii) to pay fees and expenses accrued in connection with the transactions contemplated by this Agreement.
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Section 7. Reference to and Effect on the Loan Documents.
(a) On and after the First Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended hereby.
(b) The Credit Agreement and the other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents or constitute a waiver or amendment of any provision of any of the Loan Documents.
(d) The Borrower, the Canadian Borrower and the other parties hereto acknowledge and agree that, on and after the First Amendment Effective Date, this Agreement and each of the other Loan Documents to be executed and delivered by a Loan Party shall constitute a Loan Document for all purposes of the Credit Agreement.
(e) The provisions of Sections 11.12 and 11.16 of the Credit Agreement shall apply with like effect to this Agreement.
Section 8. Reaffirmation of Security Interest.
Each of the Reaffirming Parties hereby (i) confirms and agrees that the U.S. Guarantee and Collateral Agreement, the other U.S. Security Documents and all of the Collateral described in the foregoing do, and shall continue to, secure the payment and performance of all of the Secured Obligations (as defined in the U.S. Guarantee and Collateral Agreement), (ii) reaffirms the security interest granted by each Reaffirming Party to the Administrative Agent and the applicable Secured Parties prior to the date hereof and reaffirm the guaranties made pursuant to the U.S. Guarantee and Collateral Agreement and (iii) acknowledges and agrees that the grant of security interests by, and the guaranties of, the Reaffirming Parties contained in the U.S. Guarantee and Collateral Agreement are, and shall remain, in full force and effect after giving effect to this Agreement.
Section 9. Counterparts.
This Agreement (including all consents and authorizations relating hereto) may be executed by one or more parties to this Agreement in any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page to this Agreement (or any consent or authorization relating hereto) by electronic transmission or facsimile shall be effective as delivery of a manually executed counterpart of this Agreement (or such consent or authorization relating hereto). The words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to this Agreement shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state laws based on the Uniform Electronic Transactions Act.
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Section 10. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.
| BORROWER: | ||
| OPENLANE, INC. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| CANADIAN BORROWER: | ||
| ADESA AUCTIONS CANADA CORPORATION | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Chief Financial Officer | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| LOAN PARTIES: | |
| ADESA CORPORATION, LLC | |
| ADESA, INC. | |
| AUCTION FRONTIER, LLC | |
| AUCTIONTRAC, LLC | |
| AUTOMOTIVE KEY CONTROLS, LLC | |
| AUTONIQ, LLC | |
| AUTOVIN, INC. | |
| BACKLOT CARS, INC. | |
| CARCO TECHNOLOGIES, LLC | |
| CARSARRIVE NETWORK, INC. | |
| CARWAVE LLC | |
| CLEARPLAN, LLC | |
| HIGH TECH NATIONAL, LLC | |
| HT LOCKSMITHS, INC. | |
| LANELINK, LLC | |
| MOBILETRAC LLC | |
| NTH GEN SOFTWARE (FLORIDA) LLC | |
| OPENLANE US, INC. | |
| PAR, INC. | |
| RECOVERY DATABASE NETWORK, INC. | |
| STRATIM SYSTEMS INCORPORATED | |
| TRADEREV USA LLC |
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxx | ||
| Title: Vice President and Controller |
OPENLANE – FIRST AMENDMENT AGREEMENT
| ADESA DEALER SERVICES, LLC | ||
| AFC CAL, LLC | ||
| AUTOMOTIVE FINANCE CONSUMER DIVISION, LLC | ||
| AUTOMOTIVE FINANCE CORPORATION | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: Xxxxx X. Xxxxx, II | ||
| Title: President | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| CANADIAN LOAN PARTIES: | ||
| AutoVIN Canada Inc. | ||
| Nth Gen Software Inc. | ||
| OPENLANE Canada Inc. | ||
| NEPO Auto Centre, Inc. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Executive Vice President and Chief Financial Officer | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| ADESA Montreal Corporation | ||
| ADESA Québec Corporation | ||
| ADESA Remarketing Services Inc. | ||
| OPENLANE Canada Co. | ||
| 2540-0714 Québec Inc. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Chief Financial Officer | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| JPMORGAN CHASE BANK, N.A., | ||
| as Administrative Agent, an Issuing Lender, Closing Date Revolving Facility Swingline Lender and a Consenting Lender | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Executive Director | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, | ||
| as 2024 Canadian Revolving Facility Lender and a 2024 Canadian Revolving Facility Swingline Lender, | ||
| By: | /s/ Xxxxxxx Xxxxxxx | |
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Executive Director | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| BANK OF MONTREAL, | ||
| as an Issuing Lender, 2024 Canadian Revolving Facility Lender, and a Consenting Lender | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Managing Director | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: Xxxx X. Xxxxxxxx | ||
| Title: Managing Director | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| ROYAL BANK OF CANADA, | ||
| as a 2024 Canadian Revolving Facility Lender, and a Consenting Lender | ||
| By: | /s/ Xxxxxxx Xxxxxx-Xxxx | |
| Name: Xxxxxxx Xxxxxx-Xxxx | ||
| Title: Authorized Signatory | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| BANK OF AMERICA, N.A., | ||
| as an Issuing Lender and a Consenting Lender | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | ||
| Title: Senior Vice President | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| BANK OF AMERICA, N.A., | ||
| Canada Branch, | ||
| as a 2024 Canadian Revolving Facility Lender | ||
| By: | /s/ Xxxxxx Sales xx Xxxxxxx | |
| Name: Xxxxxx Sales xx Xxxxxxx | ||
| Title: Vice President | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| BARCLAYS BANK PLC, | ||
| as an Issuing Lender, 2024 Canadian Revolving Facility Lender, and a Consenting Lender | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Director | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| XXXXXXX XXXXX BANK USA, | ||
| as an Issuing Lender, 2024 Canadian Revolving Facility Lender, and a Consenting Lender | ||
| By: | /s/ Xxx Xxxxx | |
| Name: Xxx Xxxxx | ||
| Title: Authorized Signatory | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| FIFTH THIRD
BANK, NATIONAL ASSOCIATION, as an Issuing Lender, Consenting Lender and a 2024 Canadian Revolving Facility Lender |
||
| By: | /s/ Xxxxxxx Xxx | |
| Name: Xxxxxxx Xxx | ||
| Title: Vice President | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| U.S. BANK NATIONAL ASSOCIATION, | ||
| as an Issuing Lender, 2024 Canadian Revolving Facility Lender, and a Consenting Lender | ||
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Name: Xxxxxx Xxxxxxxx | ||
| Title: Vice President | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| Truist Bank, as a 2024 Canadian Revolving Facility Lender and a Consenting Lender | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | ||
| Title: Authorized Officer | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Consenting Lender | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Director | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, CANADIAN BRANCH | ||
| as a 2024 Canadian Revolving Facility Lender | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| Title: Vice President | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
| THE HUNTINGTON NATIONAL BANK, as a Consenting Lender | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| Title: Vice President | ||
OPENLANE – FIRST AMENDMENT AGREEMENT
Exhibit A
Credit Agreement
see attached
Exhibit A
Execution Version
Exhibit A to First Amendment
CREDIT AGREEMENT
dated as of June 23, 2023,
as amended by First Amendment Agreement to the Credit Agreement, dated as of January 19, 2024,
among
OPENLANE, INC.,
as Borrower,
ADESA
AUCTIONS CANADA CORPORATION,
as Canadian Borrower,
THE LENDERS PARTY HERETO,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
___________________________________________
JPMORGAN CHASE BANK, N.A.,
as Sole Lead Arranger
JPMORGAN CHASE BANK, N.A.,
Barclays bank plc,
bofA securities, inc.,
xxxxxxx xxxxx bank usa,
bmo capital markets corp.,
Fifth
tHIRD bANK, NATIONAL ASSOCIATION
and
U.S. Bank National Association,
as Joint Bookrunners,
TRUIST BANK,
RBC CAPITAL MARKETS,
THE HUNTINGTON NATIONAL BANK
and
XXXXX FARGO SECURITIES LLC,
as Documentation Agents
JPMORGAN
CHASE BANK, N.A.,
as Sole Lead Arranger for the 2024 Canadian Revolving Facility under First
Amendment Agreement
JPMORGAN
CHASE BANK, N.A.,
BMO Capital Markets Corp.,
BofA Securities, Inc
and
RBC Capital Markets,
as Joint Bookrunners for the for the 2024 Canadian Revolving Facility under First Amendment Agreement
TABLE OF CONTENTS
Page
| 1 |
| 1.1. | Defined Terms | 1 | |
| 1.2. | Other Definitional Provisions | ||
| 1.3. | Certain Calculations and Tests | ||
| 1.4. | Divisions | ||
| 1.5. | Interest Rates; Benchmark Notification | ||
| 1.6. | Cashless Rollovers |
| 1.7. | Exchange Rates; Currency Equivalents | 74 |
| 1.8. | Interpretation (Quebec) | 74 |
| 2.1. | Term Loans | ||
| 2.2. | Procedure for the Term Loan Borrowing | ||
| 2.3. | Repayment of Term Loans |
| 3.1. | Revolving Facility Commitments |
| 3.2. | Procedure for Revolving Facility Loan Borrowing |
| 3.3. | Swingline
|
| 3.4. | Procedure for Swingline |
| 3.5. | Commitment Fees, etc. |
| 3.6. | Termination or Reduction of Revolving Facility Commitments |
| 3.7. | Letter of Credit Commitment |
| 3.8. | Procedure for Issuance of Letters of Credit |
| 3.9. | Fees and Other Charges |
| 3.10. | Letter of Credit Participations |
| 3.11. | Reimbursement Obligation of the Applicable Borrower |
| 3.12. | Obligations Absolute |
| 3.13. | Letter of Credit Payments |
| |
| 4.1. | Optional Prepayments | ||
| 4.2. | Mandatory Prepayments | ||
| 4.3. | Conversion and Continuation Options | ||
| 4.4. | Limitations on Term Benchmark Loans | ||
| 4.5. | Interest Rates and Payment Dates; Administrative Agent Fees; Other Fees |
| 4.6. | Computation of Interest and Fees | | |
| 4.7. | Inability to Determine Interest Rate | ||
| 4.8. | Pro Rata Treatment and Payments | | |
| 4.9. | Requirements of Law | ||
| 4.10. | Taxes | ||
| 4.11. | Indemnity | ||
| 4.12. | Change of Lending Office | ||
| 4.13. | Replacement of Lenders | ||
| 4.14. | Evidence of Debt | | |
| 4.15. | Illegality | ||
| 4.16. | Defaulting Lenders | ||
| 4.17. | Incremental Facilities | | |
| 4.18. | Extension Amendments | ||
| 4.19. | Refinancing Facilities |
| 4.20. | Limitations on Canadian Borrower’s and Canadian Loan Parties’ Obligations | 125 |
| |
| 5.1. | Financial Condition | ||
| 5.2. | No Change | ||
| 5.3. | Corporate Existence; Compliance with Law | ||
| 5.4. | Power; Authorization; Enforceable Obligations | ||
| 5.5. | No Legal Bar | ||
| 5.6. | Litigation | | |
| 5.7. | No Default | ||
| 5.8. | Ownership of Property; Liens | ||
| 5.9. | Intellectual Property | | |
| 5.10. | Taxes | ||
| 5.11. | Federal Regulations | ||
| 5.12. | Labor Matters |
| 5.13. | ERISA |
| 5.14. | Investment Company Act | ||
| 5.15. | Restricted Subsidiaries | | |
| 5.16. | Use of Proceeds | ||
| 5.17. | Environmental Matters | ||
| 5.18. | Accuracy of Information, etc. | ||
| 5.19. | Security Documents | ||
| 5.20. | Solvency | ||
| 5.21. | Regulation H | ||
| 5.22. | Anti-Terrorism Laws | ||
| 5.23. | Anti-Corruption Laws and Sanctions | ||
| 5.24. | Affected Financial Institutions | ||
| 5.25. | Beneficial Ownership Certificate |
| |
| 6.1. | Conditions to Effectiveness |
| 6.2. | Conditions to Each Extension of Credit |
| |
| 7.1. | Financial Statements | ||
| 7.2. | Certificates; Other Information | ||
| 7.3. | Payment of Obligations; Payment of Taxes | ||
| 7.4. | Maintenance of Existence; Compliance | ||
| 7.5. | Maintenance of Property; Insurance | ||
| 7.6. | Inspection of Property; Books and Records; Discussions | ||
| 7.7. | Notices | ||
| 7.8. | Environmental Laws | ||
| 7.9. | Additional Collateral, etc. | ||
| 7.10. | Use of Proceeds | ||
| 7.11. | Further Assurances | ||
| 7.12. | Ratings | ||
| 7.13. | Post-Closing Items |
| |
| 8.1. | Financial Condition Covenant | ||
| 8.2. | Indebtedness | ||
| 8.3. | Liens | ||
| 8.4. | Fundamental Changes | ||
| 8.5. | Disposition of Property | ||
| 8.6. | Restricted Payments | ||
| 8.7. | Investments | ||
| 8.8. | Optional Payments and Modifications of Certain Debt Instruments; Certain Modifications | ||
| 8.9. | Transactions with Affiliates |
| 8.10. |
| 8.11. | Hedge Agreements | ||
| 8.12. | Changes in Fiscal Periods | ||
| 8.13. | Negative Pledge Clauses | ||
| 8.14. | Clauses Restricting Subsidiary Distributions | ||
| 8.15. | Lines of Business |
| |
| 10.1. | Appointment | ||
| 10.2. | Delegation of Duties | ||
| 10.3. | Exculpatory Provisions | ||
| 10.4. | Reliance by the Administrative Agent | ||
| 10.5. | Notice of Default | ||
| 10.6. | Non-Reliance on Administrative Agent and Other Lenders | ||
| 10.7. | Indemnification | ||
| 10.8. | Agent in Its Individual Capacity | ||
| 10.9. | Successor Administrative Agent | ||
| 10.10. | Administrative Agent Generally | ||
| 10.11. | Other Representatives | ||
| 10.12. | Withholding
Tax |
||
| 10.13. | Administrative Agent May File Proofs of Claim | ||
| 10.14. | Certain ERISA Matters | ||
| 10.15. | Intercreditor Agreements |
| 10.16. | Erroneous
Payments |
| 10.17. | Quebec Security. | 178 |
| |
| 11.1. | Amendments and Waivers | ||
| 11.2. | Notices | ||
| 11.3. | No Waiver; Cumulative Remedies | ||
| 11.4. | Survival of Representations and Warranties | ||
| 11.5. | Payment of Expenses; Indemnity | ||
| 11.6. | Successors and Assigns; Participations and Assignments | ||
| 11.7. | Adjustments; Set-off | ||
| 11.8. | Counterparts | ||
| 11.9. | Severability | ||
| 11.10. | Integration | ||
| 11.11. | GOVERNING LAW | ||
| 11.12. | Submission To Jurisdiction; Waivers | ||
| 11.13. | Acknowledgments | ||
| 11.14. | Releases of Guarantees and Xxxxx | ||
| 11.15. | Confidentiality | ||
| 11.16. | WAIVERS OF JURY TRIAL | ||
| 11.17. | [Reserved] | ||
| 11.18. | USA PATRIOT Act | ||
| 11.19. | Lender Action | ||
| 11.20. | Certain Undertakings with Respect to Securitization Subsidiaries | ||
| 11.21. | Certain Undertakings with Respect to Certain Affiliate Lenders | ||
| 11.22. | No Fiduciary Duty | ||
| 11.23. | Acknowledgment and Consent to Bail-In of Affected Financial Institutions | ||
| 11.24. | Acknowledgment Regarding Any Supported QFCs |
| 11.25. | Judgement Currency | 201 |
SCHEDULES:
| 1.1(a) | Mortgaged Property |
| 1.1(b) | Unrestricted Subsidiaries |
| 1.1(c) | Existing Letters of Credit |
| 2.1 | [Reserved] |
| 3.1 | Closing Date Revolving Facility Commitment Allocations |
| 3.7 | L/C Commitments |
| 5.4 | Consents, Authorizations, Filings and Notices |
| 5.6 | Litigation |
| 5.15 | Restricted Subsidiaries |
| 5.17 | Environmental Matters |
| 7.13 | Post-Closing Items |
| 8.2(d) | Existing Indebtedness |
| 8.3(i) | Existing Liens |
| 8.7(e) | Existing Investments |
| 8.9(i) | Transactions with Affiliates |
| 8.13 | Negative Pledge |
| 11.2 | Issuing Lender Notice Address |
EXHIBITS:
| A | [Reserved] |
| B | Form of Compliance Certificate |
| C | [Reserved] |
| D | Form of Mortgage |
| E-1 | Form of Assignment and Assumption |
| E-2 | Form of Affiliated Lender Assignment and Assumption |
| F | [Reserved] |
| G-1 | Form of Term Note |
| G | Form of Closing Date Revolving Facility Note |
| G-2-2 | Form of 2024 Canadian Revolving Facility Note |
| G | Form of Closing Date Revolving Facility Swingline Note |
| G-3-2 | Form of 2024 Canadian Revolving Facility Swingline Note |
| H-1 | Form of U.S. Tax Compliance Certificate (For Foreign Lenders that Are Not Partnerships for U.S. Federal Income Tax Purposes) |
| H-2 | Form of U.S. Tax Compliance Certificate (For Foreign Lenders that Are Partnerships for U.S. Federal Income Tax Purposes) |
| H-3 | Form of U.S. Tax Compliance Certificate (For Non-U.S. Participants that Are Not Partnerships for U.S. Federal Income Tax Purposes) |
| H-4 | Form of U.S. Tax Compliance Certificate (For Non-U.S. Participants that Are Partnerships for U.S. Federal Income Tax Purposes) |
| I | Form of Solvency Certificate |
| J | [Reserved] |
| K-1 | Form of Intercreditor Agreement |
| K-2 | Form of Pari Debt Intercreditor Agreement |
CREDIT AGREEMENT, dated as of June 23, 2023 (as amended by that certain First Amendment Agreement, dated January 19, 2024 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), among OPENLANE, Inc., a Delaware corporation (the “Borrower”), ADESA Auctions Canada Corporation, a Nova Scotia unlimited company (the “Canadian Borrower”), the several banks and other financial institutions or entities from time to time party hereto (the “Lenders”) and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, together with its permitted successors and assigns in such capacity, the “Administrative Agent”).
RECITALS
WHEREAS,
the Borrower has requested that (A) each Term Lender extend Term Loans in an amount equal to such Term Lender’s Term Loan Allocation
and (B) the Closing Date Revolving Facility
Lenders provide Closing Date Revolving Facility
Commitments on the Closing Date in an aggregate
amount of $325,000,000.;
and
WHEREAS, the Canadian Borrower has requested that the 2024 Canadian Revolving Facility Lenders provide 2024 Canadian Revolving Facility Commitments on the First Amendment Effective Date in an aggregate amount of C$175,000,000.
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent, the Lenders and the Issuing Lenders to enter into this Agreement and to induce the Lenders and the Issuing Lenders to make their respective extensions of credit to the Borrower hereunder, the parties hereto hereby agree as follows:
SECTION
1. SECTION1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.
“2024 Canadian Revolving Facility Aggregate Exposure”: with respect to any 2024 Canadian Revolving Facility Lender at any time, an amount equal to the amount of such Xxxxxx’s 2024 Canadian Revolving Facility Commitment then in effect or, if the 2024 Canadian Revolving Facility Commitments have been terminated, the amount of such Xxxxxx’s 2024 Canadian Revolving Facility Extensions of Credit then outstanding.
“2024 Canadian Revolving Facility Commitments”: as to each 2024 Canadian Revolving Facility Lender, the commitment of such 2024 Canadian Revolving Facility Lender to make 2024 Canadian Revolving Facility Loans and participate in 2024 Canadian Revolving Facility Swingline Loans in an aggregate principal amount not to exceed (a) in the case of 2024 Canadian Revolving Facility Lenders party hereto as of the First Amendment Effective Date, such 2024 Canadian Revolving Facility Lenders’ 2024 Canadian Revolving Facility Commitment Allocation and (b) in the case of Lenders that become parties hereto as a 2024 Canadian Revolving Facility Lender after the First Amendment Effective Date, the amount set forth in the Assignment and Assumption or Incremental Commitment Agreement by which such Lender became a party hereto, in each case, as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the 2024 Canadian Revolving Facility Lenders’ 2024 Canadian Revolving Facility Commitments on the First Amendment Effective Date is C$175,000,000.
“2024 Canadian Revolving Facility Commitment Allocation”: as of the First Amendment Effective Date, the 2024 Canadian Revolving Facility Commitment of each 2024 Canadian Revolving Facility Lender as set forth on Schedule I to the First Amendment.
“2024 Canadian Revolving Facility Commitment Period”: the period from and including the First Amendment Effective Date up to but excluding the Business Day preceding the 2024 Canadian Revolving Facility Termination Date.
“2024 Canadian Revolving Facility Extensions of Credit”: as to any 2024 Canadian Revolving Facility Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all 2024 Canadian Revolving Facility Loans held by such 2024 Canadian Revolving Facility Lender then outstanding and (b) such 2024 Canadian Revolving Facility Lender’s 2024 Canadian Revolving Facility Percentage of the aggregate principal amount of 2024 Canadian Revolving Facility Swingline Loans then outstanding.
“2024 Canadian Revolving Facility”: the 2024 Canadian Revolving Facility Commitments and the extensions of credit made thereunder.
“2024 Canadian Revolving Facility Lenders”: at any time, each Revolving Facility Lender that has a 2024 Canadian Revolving Facility Commitment at such time or that holds 2024 Canadian Revolving Facility Loans.
“2024 Canadian Revolving Facility Loans”: a Loan made pursuant to clause (b)(ii) of Section 3.1, an Incremental 2024 Canadian Revolving Facility Loan, an Extended 2024 Canadian Loan or a Refinancing 2024 Canadian Revolving Facility Loan, as the context may require.
“2024 Canadian Revolving Facility Percentage”: as to any 2024 Canadian Revolving Facility Lender at any time, the percentage which such 2024 Canadian Revolving Facility Lender’s 2024 Canadian Revolving Facility Commitment then constitutes of the Total 2024 Canadian Revolving Facility Commitments (or, at any time after the 2024 Canadian Revolving Facility Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such 2024 Canadian Revolving Facility Lender’s 2024 Canadian Revolving Facility Loans then outstanding constitutes of the aggregate principal amount of the 2024 Canadian Revolving Facility Loans then outstanding).
“2024 Canadian Revolving Facility Swingline Commitment”: C$15,000,000.
“2024 Canadian Revolving Facility Swingline Exposure”: at any time the aggregate principal amount at such time of all outstanding 2024 Canadian Revolving Facility Swingline Loans. The 2024 Canadian Revolving Facility Swingline Exposure of any 2024 Canadian Revolving Facility Lender at any time shall equal its 2024 Canadian Revolving Facility Percentage of the aggregate 2024 Canadian Revolving Facility Swingline Exposure at such time.
2
“2024 Canadian Revolving Facility Swingline Lender”: JPMorgan Chase Bank, N.A., Toronto Branch in its capacity as the lender of 2024 Canadian Revolving Facility Swingline Loans.
“2024 Canadian Revolving Facility Swingline Loans”: as defined in Section 3.3(2)(a).
“2024 Canadian Revolving Facility Swingline Participation Amount”: as defined in Section 3.4(2)(c).
“2024 Canadian Revolving Facility Termination Date”: the earlier of (a) June 23, 2028 and (b) the date on which the 2024 Canadian Revolving Facility Commitments are terminated pursuant to any provision of this Agreement.
“Additional Lender”: as defined in Section 4.17(b).
“Adjusted Daily Simple SOFR”: an interest rate per annum equal to (a) the Daily Simple SOFR, plus (b) 0.10%; provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Daily RFR”: (a) with respect to any RFR Borrowing denominated in Dollars, the Adjusted Daily Simple SOFR and (b) with respect to any RFR Borrowing denominated in Canadian Dollars, the Adjusted Daily Simple XXXXX.
“Adjusted Daily Simple XXXXX”: for purposes of any calculation, the rate per annum equal to Daily Simple XXXXX plus 0.29547%; provided that if Adjusted Daily Simple XXXXX as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term XXXXX Rate” for purposes of any calculation, the rate per annum equal to (a) Term XXXXX for such calculation plus (b) 0.29547% for a one month interest period or 0.32138% for a three month interest period, as applicable; provided that if Adjusted Term XXXXX Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate”: for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjustment Date”: as defined in the definition of “Pricing Grid”.
“Administrative Agent”: as defined in the preamble to this Agreement.
“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
3
“Affiliate”: as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “controlling” and “controlled” shall have correlative meanings.
“Affiliated Lender Assignment and Assumption”: an Affiliated Lender Assignment and Assumption, substantially in the form of Exhibit E-2 hereto or such other form that is reasonably acceptable to the Administrative Agent.
“Affiliated Lenders”: the Borrower, its Subsidiaries, and their respective Affiliates.
“Aggregate Exposure”:
with respect to any Lender at any time, an amount equal to the sum of (i) the aggregate then unpaid principal amount of such Lender’s
Term Loans and,
(ii) the amount of such Xxxxxx’s Revolving Commitment then in effect or, if the Revolving Commitments
have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.its
Closing Date Revolving Facility Aggregate Exposure and (iii) its 2024 Canadian Revolving Facility Aggregate Exposure.
“Aggregate Exposure
Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of (ai)
such Xxxxxx’s Aggregate Exposure at such time to (bii)
the Aggregate Exposure of all Lenders at such time.
“Agreement”: as defined in the preamble to this Agreement.
“All-In
Yield”: as to any Indebtedness, the yield thereof, whether in the form of interest rate, margin, original issue discount,
upfront fees or Term SOFR Rate or,
Base Rate, Term XXXXX, Daily Simple XXXXX or Canadian Prime Rate
“floor”; provided that original issue discount and upfront fees shall be equated to interest based on assumed four-year
life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable Indebtedness); provided,
further, that “All-In Yield” shall not include customary arrangement or commitment fees payable to any of the Other
Representatives (or their respective affiliates) in connection with the Loans or to one or more arrangers (or their respective affiliates)
in connection with the Incremental Loans (and any fee payable to any Additional Lender in lieu of any portion of any such fee payable
to any such arranger or affiliate thereof).
“Ancillary Document”: as defined in Section 11.8.
“Anti-Corruption Laws”: all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Affiliates from time to time concerning or relating to bribery or corruption.
“Applicable Borrower”: the Borrower and/or the Canadian Borrower, as the context shall require.
4
“Applicable Margin”:
for any day (a) with respect to Closing Date Revolving Facility
Loans and Closing Date Revolving Facility Swingline
Loans, the applicable rate per annum set forth in clause (a) of the definition of “Pricing Grid” which corresponds to the
Consolidated Senior Secured Net Leverage Ratio as of the relevant date of determination, (b) with respect to Term2024
Canadian Revolving Facility Loans and 2024 Canadian Revolving Facility Swingline Loans, the applicable rate per annum set forth
in clause (b) of the definition of “Pricing Grid” and (cwhich
corresponds to the Consolidated Senior Secured Net Leverage Ratio as of the relevant date of determination, (c) with respect to Term Loans,
the applicable rate per annum set forth in clause (c) of the definition of “Pricing Grid” and (d) with respect
to any Incremental Term Loans, the rate per annum set forth in the applicable Incremental Commitment Agreement with respect thereto.
Each change in the Applicable Margin resulting from a change in the Consolidated Senior Secured Net Leverage Ratio shall be effective with respect to all Revolving Facility Loans and Swingline Loans outstanding on and after the third (3rd) Business Day following the delivery to the Administrative Agent of the financial statements and certificates required by Section 7.1(a)(i) or 7.1(a)(ii) and Section 7.2(a), respectively, indicating such change until the date immediately preceding the next date of delivery of such financial statements and certificates indicating another such change. In addition, (a) at any time during which the Borrower has failed to deliver the financial statements and certificates required by Section 7.1(a)(i) or 7.1(a)(ii) and Section 7.2(a), respectively, or (b) at any time after the occurrence and during the continuance of an Event of Default, the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Applicable Margin in respect of Revolving Facility Loans and Swingline Loans.
“Applicable Period”: as defined in Section 4.6(c).
“Application”: an application, in a form as the applicable Issuing Lender may reasonably specify from time to time to request such Issuing Lender issue a Letter of Credit.
“Approved Fund”: (a) a CLO and (b) with respect to any Lender that is a fund which invests in commercial loans, any other fund that invests in commercial loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Asset Sale”: any Disposition of Property or series of related Dispositions of Property (including any issuance or sale of Capital Stock of any Restricted Subsidiary of the Borrower, but excluding any Disposition permitted by Section 8.5 (other than any Dispositions permitted pursuant to Section 8.5(s))) that yields gross proceeds to any Group Member (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $10,000,000.
“Asset Swap”: a concurrent purchase and sale or exchange of Property between the Borrower or any of its Restricted Subsidiaries and another Person; provided that (i) the Borrower or such Restricted Subsidiary, as the case may be, receives consideration at least equal to the fair market value (such fair market value to be determined on the date of the contractually agreeing to such transaction) as determined in good faith by the Borrower; and (ii) such Property is useful to the business of the Borrower or such Restricted Subsidiary.
5
“Assignee”: as defined in Section 11.6(b)(i).
“Assignment and Assumption”: an Assignment and Assumption, substantially in the form of Exhibit E-1 hereto or such other form that is reasonably acceptable to the Administrative Agent.
“Available Amount”: at any time, an amount (if a positive number) equal to (a) 50.0% of Consolidated Net Income of the Borrower and its Restricted Subsidiaries for the period (taken as one accounting period) commencing on April 1, 2023 to the end of the most recently ended fiscal quarter for which financial statements have been delivered to the extent not otherwise applied; plus (b) 100.0% of the aggregate Net Cash Proceeds received by the Borrower from the sale of Capital Stock (excluding Disqualified Capital Stock) of the Borrower or from any capital contributions to the Borrower made in cash or Cash Equivalents (excluding Disqualified Capital Stock) to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment; plus (c) 100.0% of the aggregate Net Cash Proceeds received by the Borrower from third-party Indebtedness and Disqualified Capital Stock of the Borrower and its Restricted Subsidiaries, in each case, issued after the Closing Date, which have been exchanged or converted into Capital Stock (excluding Disqualified Capital Stock) of the Borrower to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment; plus (d) 100% of the aggregate Net Cash Proceeds and the fair market value of marketable securities or other property received by the Borrower and its Restricted Subsidiaries since the Closing Date from Dispositions of Investments made using the Available Amount, in each case, not to exceed the actual amount of the Investment made using such Available Amount; plus (e) 100% of the returns, profits, distributions and similar amounts received in cash or Cash Equivalents by the Borrower and its Restricted Subsidiaries on Investments made using the Available Amount (including Investments in Unrestricted Subsidiaries), in each case, not to exceed the actual amount of the Investment made using such Available Amount; plus (f) 100% of the Investments of the Borrower and its Restricted Subsidiaries made using the Available Amount in any Unrestricted Subsidiary that has been redesignated as a Restricted Subsidiary or that has been merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries (up to the fair market value of the Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time of such re-designation or merger, amalgamation or consolidation), in each case, after the Closing Date; plus (g) Declined Amounts; minus (h) without duplication, an amount equal to the sum of (i) redemptions, repurchases, defeasances or otherwise prepayments of Junior Debt pursuant to Section 8.8(a)(i), (ii) Restricted Payments made pursuant to Section 8.6(e)(i)(z) and (iii) Investments made pursuant to Section 8.7(z)(i)(z), in each case, after the Closing Date and prior to such time or contemporaneously therewith.
“Available 2024 Canadian Revolving Facility Commitment”: as to any Revolving Facility Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s 2024 Canadian Revolving Facility Commitment then in effect over (b) such Xxxxxx’s 2024 Canadian Revolving Facility Extensions of Credit then outstanding; provided, that, in calculating any Lender’s 2024 Canadian Revolving Facility Extensions of Credit for the purpose of determining such Lender’s Available 2024 Canadian Revolving Facility Commitment pursuant to Section 3.5(2), the aggregate principal amount of 2024 Canadian Revolving Facility Swingline Loans then outstanding shall be deemed to be zero.
6
“Available Closing Date Revolving Facility Commitment”: as to any Revolving Facility Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Closing Date Revolving Facility Commitment then in effect over (b) such Closing Date Revolving Facility Extensions of Credit then outstanding; provided, that, in calculating any Lender’s Closing Date Revolving Facility Extensions of Credit for the purpose of determining such Lender’s Available Closing Date Revolving Facility Commitment pursuant to Section 3.5(1), the aggregate principal amount of Closing Date Revolving Facility Swingline Loans then outstanding shall be deemed to be zero.
“Available Tenor”:
as of any date of determination and with respect to the then-current Benchmark for
Dollars or Canadian Dollars, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest
calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of
an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to
this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the
definition of “Interest Period” pursuant to clause (eclauses
(b)(iv) or (c)(iv) of Section 4.7.
“Backstop L/C”: as defined in Section 3.7(a).
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1.00%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 0.50% and (c) the Adjusted Term SOFR Rate for an Interest Period of one (1)-month as published two (2) U.S. Government Securities Business Days prior to such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1.00%; provided that, for purposes of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 4.7 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 4.7) hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, (x) solely with respect to the Revolving Facility Loans, if the Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement and (y) solely with respect to the Term Loans, if the Base Rate as determined pursuant to the foregoing would be less than 1.50%, such rate shall be deemed to be 1.50% for purposes of this Agreement.
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“Base Rate Loans”: Loans the rate of interest applicable to which is based upon the Base Rate.
“Benchmark”:
initially(a)
with respect to any Loan denominated in Dollars, the Term SOFR Rate and
(b) with respect to any Loan denominated in Canadian Dollars, Term XXXXX; provided that if (i)
a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the Adjusted
Term SOFR Rate or the then-current
Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark
Replacement has replaced such prior benchmark rate pursuant to clause
(b) ofSection 4.7(b)(1) or (ii) a Benchmark Transition
Event and the related Benchmark Replacement Date have occurred with respect to Term XXXXX, then “Benchmark” means the applicable
Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section
4.7(c)(1).
“Benchmark Replacement”: for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1) where
a Benchmark Transition Event has occurred with respect to the Term Benchmark, the applicable Adjusted Daily Simple
SOFRRFR; and
(2) where
a Benchmark Transition Event has occurred with respect to a Benchmark, the sum of: (a) the alternate benchmark rate that has
been selected by the Administrative Agent and the Applicable Borrower,
as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection
or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii)
any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for
Dollar-denominated syndicated credit
facilities denominated in Dollars or Canadian Dollars, as applicable,
at such time in the United States or Canada, as applicable,
and (b) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
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“Benchmark Replacement
Adjustment”: with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any
applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method
for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the
Administrative Agent and the Applicable Borrower for the applicable
Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating
or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the
Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention
for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark
with the applicable Unadjusted Benchmark Replacement for Dollar-denominated
syndicated credit facilities denominated in Dollars
or Canadian Dollars, as applicable, at such time in
the United States.
“Benchmark Replacement Conforming Changes”: with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Canadian Prime Rate”, the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” the timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions) that the Administrative Agent decides in its reasonable discretion, in consultation with the Applicable Borrower, may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides, in consultation with the Applicable Borrower, is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date”: with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
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(i)
If the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference
Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such
determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with
respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available
Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event”: with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the Term SOFR Administrator, the Term XXXXX Administrator, the Bank of Canada, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
A “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period”: with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with clauses (b) or (c) of Section 4.7 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with clauses (b) or (c) of Section 4.7.
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“Beneficial Ownership Certificate”: a certification regarding beneficial ownership in the form required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.
“Benefit Plan”: any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Benefited Lender”: as defined in Section 11.7(a).
“BHC Act Affiliate”: as defined in Section 11.24(b).
“Blocked Person”: as defined in Section 5.22(b).
“Borrower”: as defined in the preamble to this Agreement.
“Borrowing”: a group of Loans of a single Type under a single Facility, and made on a single date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.
“Borrowing Date”: any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.
“Business”: as defined in Section 5.17(b).
“Business Day”:
any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law
to remain closed; provided, however, that when used (a)
in connection with a Term BenchmarkSOFR
Rate Loan or RFRDaily
Simple SOFR Loan, the term “Business Day” means any such day that is only a U.S. Government Securities Business
Day. and (b) when
used in connection with a Term XXXXX Loan, Daily Simple XXXXX Loan or a Canadian Prime Rate Loan, any funding, disbursement, settlement
and/or payments in Canadian Dollars in respect of such Term XXXXX Loan, Daily Simple XXXXX Loan or Canadian Prime Rate Loan or any other
dealing in Canadian Dollars to be carried out pursuant to this Agreement in respect of any such Term XXXXX Loan, Daily Simple XXXXX Loan
or Canadian Prime Rate Loan, the term “Business Day” shall mean any day (other than a Saturday or a Sunday) on which banks
are open for business in Canada.
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“CAML” means the Criminal Code (Canada), The Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and the United Nations Act (Canada) or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including, without limitation, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations Al Qaida and Taliban Regulations promulgated under the United Nations Act.
“Canada”: the country of Canada, together with any province or territory thereof and any political subdivision of any of them.
“Canadian Borrower”: has the meaning assigned to such term in the preamble to this Agreement.
“Canadian Debtor Relief Law” means each of the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act (Canada), each as now and hereafter in effect, any successors to such statutes and any other applicable insolvency or other similar law of any jurisdiction in Canada, including any corporate law to the extent the relief sought under such corporations legislation relates to or involves the compromise, settlement, adjustment or arrangement of debt.
“Canadian Defined Benefit Pension Plan”: a Canadian Pension Plan that contains a “defined benefit provision” as such term is defined in subsection 147.1(1) of the Canadian Tax Act.
“Canadian Dollars” and “C$”: the lawful money of Canada.
“Canadian Guarantee and Collateral Agreement”: the Canadian Guarantee and Collateral Agreement, dated as of the First Amendment Effective Date, among the Canadian Loan Parties and the Administrative Agent.
“Canadian Intellectual Property Security Agreement”: each Canadian Intellectual Property Security Agreement, to be executed and delivered by each applicable Canadian Loan Party in accordance with the Canadian Guarantee and Collateral Agreement.
“Canadian Loan Parties” individually and collectively, the Canadian Borrower and each Canadian Subsidiary that is a Subsidiary Guarantor.
“Canadian Multi-Employer Pension Plan” means a “multi-employer plan,” as that term is defined in subsection 147.1(1) of the Canadian Tax Act, to which any of the Loan Parties contributes, whether pursuant to a collective agreement, trust agreement, participation agreement, or otherwise, and which is not sponsored or administered by any Loan Party.
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“Canadian Pension Event” means, (a) with respect to a Canadian Defined Benefit Pension Plan, (i) the termination by a Loan Party of such a Canadian Defined Benefit Pension Plan; or (ii) the filing of a notice of intention to terminate in whole or in part such a Canadian Defined Benefit Pension Plan; or (iii) the issuance of an order or notice of intended decision by any Governmental Authority to terminate or have an administrator or like body appointed to administer such a Canadian Defined Benefit Pension Plan; or (iv) any other event or condition which would reasonably be expected to constitute grounds for the termination of, winding up or partial termination or winding up or the appointment of an administrator or trustee to administer, any such Canadian Defined Benefit Pension Plan or (b) with respect to a Canadian Multi-Employer Pension Plan, (i) the withdrawal by a Loan Party from a Canadian Multi-Employer Pension Plan in respect of which there is a withdrawal liability of the Loan Party; or (ii) the termination or winding up of the Canadian Multi-Employer Pension Plan, in whole or in part, in respect of which there is a termination or wind-up liability of the Loan Party.
“Canadian Pension Plan”: each pension plan required to be registered under applicable Canadian federal or provincial pension standards legislation that is maintained or contributed to by, or to which there is or may be an obligation to contribute by, a Loan Party in respect of its employees or former employees in Canada; provided that the term “Canadian Pension Plan” shall not include the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively, or a Canadian Multi-Employer Pension Plan.
“Canadian Prime Rate”: on any day, the rate determined by the Administrative Agent to be the rate equal to the PRIMCAN Index rate that appears on the Bloomberg screen at 10:15 a.m. Toronto time on such day (or, in the event that the PRIMCAN Index is not published by Bloomberg, any other information services that publishes such index from time to time, as selected by the Administrative Agent in its reasonable discretion); provided, that if any the above rates shall be less than the Floor, such rate shall be deemed to be the Floor for purposes of this Agreement. Any change in the Canadian Prime Rate due to a change in the PRIMCAN Index shall be effective from and including the effective date of such change in the PRIMCAN Index.
“Canadian Prime Rate Loan”: a Loan that bears interest at a rate determined by reference to the Canadian Prime Rate.
“Canadian Secured Obligations”: all “Secured Obligations” of the Canadian Borrower and the other Canadian Loan Parties under and as defined in the Canadian Guarantee and Collateral Agreement in respect of the 2024 Canadian Revolving Facility; provided that, in no event shall Canadian Secured Obligations include any Obligations of the Canadian Borrower incurred under or with respect to the Canadian Sublimit.
“Canadian Securitization”: a Securitization the related documentation of which is governed by the laws of a jurisdiction in Canada.
“Canadian Security Documents”: the collective reference to the Canadian Guarantee and Collateral Agreement, the Canadian Intellectual Property Security Agreements, the Deeds of Hypothecs, Modifications (if any), the Mortgages (if any), and all other security documents and hypothecs hereafter delivered to the Administrative Agent, in each case, granting a Lien on any property of any Canadian Loan Party to secure the obligations and liabilities of any Canadian Loan Party under the 2024 Canadian Revolving Facility.
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“Canadian Sublimit”: an amount equal to the lesser of (a) C$50,000,000 and (b) the total amount of the Closing Date Revolving Facility Commitments. The Canadian Sublimit is part of, and not in addition to, the Closing Date Revolving Facility Commitments hereunder.
“Canadian Subsidiary”: a Subsidiary of the Borrower (including the Canadian Borrower) organized under the laws of a jurisdiction in Canada.
“Canadian Tax Act”: the Income Tax Act (Canada), as amended from time to time.
“Capital Lease Obligations”: as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or a lease liability on a balance sheet of such Person under GAAP; provided, however, that all obligations of any Person that are or would have been treated as operating leases (including any network lease or any operating indefeasible right of use) for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be accounted for as operating leases for purposes of all financial definitions and calculations for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as lease liabilities in the financial statements to be delivered pursuant to Section 7.1.
“Capital Stock”: any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing, but excluding Indebtedness convertible or exchangeable into any such capital stock to the extent not yet converted into capital stock.
“Cash Collateral”: as defined in Section 3.7(a).
“Cash Collateralize”: as defined in Section 3.7(a).
“Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one (1) year from the date of acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of twelve (12) months or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States or any state thereof having combined capital and surplus of not less than $500,000,000; provided, however, that time deposits (including eurodollar time deposits), certificates of deposit (including eurodollar certificates of deposit) and bankers’ acceptances in an aggregate amount not to exceed $2,000,000 may be maintained at any commercial bank of recognized standing organized under the laws of the United States (or any State or territory thereof) that does not satisfy the capital and surplus requirements and rating requirements set forth in this clause (b); (c) commercial paper of an issuer rated at least A-2 by S&P or P-2 by Moody’s or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within twelve (12) months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than thirty (30) days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of twelve (12) months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least AA by S&P or AA by Moody’s; (f) securities with maturities of twelve (12) months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition or money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000. In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the U.S., Cash Equivalents shall also include investments of the type and maturity described in clauses (a) through (g) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies.
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“Change of Control”: (a) if any Person, entity, or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) shall at any time have acquired direct or indirect beneficial ownership of a percentage of the voting power of the outstanding Capital Stock of the Borrower (which is at the time entitled to vote in the election of the Board of Directors of the Borrower) that exceeds 35% thereof or (b) for so long as the Canadian Borrower remains a borrower hereunder, if the Borrower shall cease to beneficially own, directly or indirectly, equity interests representing 100% of both the voting power and economic interests represented by the issued and outstanding equity interests of the Canadian Borrower. For purposes of this definition, (x) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act and (y) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person or “group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Civil Code”: the Civil Code of Quebec.
“Class”: (i) with respect to Commitments or Loans, those of such Commitments or Loans that have the same terms and conditions (without regard to differences in the Type of Loan, Interest Period, upfront fees, “original issue discount” or similar fees paid or payable in connection with such Commitments or Loans, or differences in Tax treatment (e.g., “fungibility”)) and (ii) with respect to Lenders, those of such Lenders that have Commitments or Loans of a particular Class.
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“CLO”: any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is administered or managed by a Lender or an Affiliate of such Lender.
“Closing Date”: the date on which the conditions set forth in Section 6.1 are satisfied (or waived in accordance with Section 11.1).
“Closing Date Refinancing”: (a) the repayment in full of all principal, accrued and unpaid interest, fees, premiums, if any, and other amounts outstanding under the Existing Credit Agreement (in each case, other than (i) contingent obligations for which no claim has been asserted and that by their terms survive the termination of the Existing Credit Agreement and (ii) the Existing Letters of Credit) and (b) the release and termination of all security interests and guarantees in connection with the Existing Credit Agreement.
“Closing Date Revolving Facility Aggregate Exposure”: with respect to any Closing Date Revolving Facility Lender at any time, an amount equal to the amount of such Xxxxxx’s Closing Date Revolving Facility Commitment then in effect or, if the Closing Date Revolving Facility Commitments have been terminated, the amount of such Xxxxxx’s Closing Date Revolving Facility Extensions of Credit then outstanding.
“Closing Date Revolving Facility Commitments”: as to any Closing Date Revolving Facility Lender, the obligation of such Closing Date Revolving Facility Lender, if any, to make Closing Date Revolving Facility Loans and participate in Closing Date Revolving Facility Swingline Loans and Letters of Credit in an aggregate principal and/or face amount not to exceed (a) in the case of Closing Date Revolving Facility Lenders party hereto as of the Closing Date, such Closing Date Revolving Facility Lender’s Closing Date Revolving Facility Commitment Allocation and (b) in the case of Lenders that become parties hereto after the Closing Date, the amount set forth in the Assignment and Assumption or Incremental Commitment Agreement by which such Lender became a party hereto, in each case, as the same may be changed from time to time pursuant to the terms hereof. The amount of the Total Closing Date Revolving Facility Commitments as of the First Amendment Effective Date is $325,000,000.
“Closing Date Revolving Facility Commitment Allocation”: as of the Closing Date, the Revolving Facility Commitments of each Closing Date Revolving Facility Lender as set forth on Schedule 3.1.
“Closing Date Revolving Facility Commitment Period”: the period from and including the Closing Date up to but excluding the Business Day preceding the Closing Date Revolving Facility Termination Date.
“Closing Date Revolving Facility Extensions of Credit”: as to any Closing Date Revolving Facility Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Closing Date Revolving Facility Loans held by such Closing Date Revolving Facility Lender then outstanding, (b) such Closing Date Revolving Facility Lender’s Closing Date Revolving Facility Percentage of the L/C Obligations then outstanding and (c) such Closing Date Revolving Facility Lender’s Closing Date Revolving Facility Percentage of the aggregate principal amount of Closing Date Revolving Facility Swingline Loans then outstanding.
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“Closing Date Revolving Facility”: the Closing Date Revolving Facility Commitments and the extensions of credit made thereunder.
“Closing Date Revolving Facility Lenders”: at any time, each Revolving Facility Lender that has a Closing Date Revolving Facility Commitment at such time or that holds Closing Date Revolving Facility Loans.
“Closing Date Revolving Facility Loans”: a Loan made pursuant to clause (b)(i) of Section 3.1, a Refinancing Closing Date Revolving Facility Loan, an Incremental Closing Date Revolving Facility Loan or an Extended Closing Date Loan, as the context may require.
“Closing Date Revolving Facility Percentage”: as to any Closing Date Revolving Facility Lender at any time, the percentage which such Closing Date Revolving Facility Lender’s Closing Date Revolving Facility Commitment then constitutes of the Total Closing Date Revolving Facility Commitments (or, at any time after the Closing Date Revolving Facility Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Closing Date Revolving Facility Lender’s Closing Date Revolving Facility Loans then outstanding constitutes of the aggregate principal amount of the Closing Date Revolving Facility Loans then outstanding).
“Closing Date Revolving Facility Swingline Commitment”: $60,000,000.
“Closing Date Revolving Facility Swingline Exposure”: at any time the aggregate principal amount at such time of all outstanding Closing Date Revolving Facility Swingline Loans. The Closing Date Revolving Facility Swingline Exposure of any Closing Date Revolving Facility Lender at any time shall equal its Closing Date Revolving Facility Percentage of the aggregate Closing Date Revolving Facility Swingline Exposure at such time.
“Closing Date Revolving Facility Swingline Lender”: JPMorgan Chase Bank, N.A., in its capacity as the lender of Closing Date Revolving Facility Swingline Loans.
“Closing Date Revolving Facility Swingline Loans”: as defined in Section 3.3(1)(a).
“Closing Date Revolving Facility Swingline Participation Amount”: as defined in Section 3.4(1)(c).
“Closing Date Revolving Facility Termination Date”: the earlier of (a) June 23, 2028 and (b) the date on which the Closing Date Revolving Facility Commitments are terminated pursuant to any provision of this Agreement.
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
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“Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document (for the avoidance of doubt, Collateral shall not include any Excluded Collateral (as defined in the Guarantee and Collateral Agreement)).
“Commitment”: as to any Lender, the Revolving Facility Commitment of such Lender.
“Commitment Fee Rate”:
the applicable rate per annum set forth in clause (cd)
of the definition of Pricing Grid which corresponds to the Consolidated Senior Secured Net Leverage Ratio as of the relevant date of determination.
Each change in the Commitment Fee Rate resulting from a change in the Consolidated Senior Secured Net Leverage Ratio shall be effective
on and after the third (3rd) Business Day following the of delivery to the Administrative Agent of the financial statements
and certificates required by Section 7.1(a)(i) or 7.1(a)(ii) and Section 7.2(a), respectively, indicating such change
until the date immediately preceding the next date of delivery of such financial statements and certificates indicating another such change.
In addition, (a) at any time during which the Borrower has failed to deliver the financial statements and certificates required by Section 7.1(a)(i)
or 7.1(a)(ii) and Section 7.2(a), respectively, or (b) at any time after the occurrence and during the continuance
of an Event of Default, the Consolidated Senior Secured Net Leverage Ratio shall be deemed to be in Category 1 for purposes of determining
the Commitment Fee Rate.
“Commonly Controlled Entity”: any trade or business, whether or not incorporated, that is under common control with the Borrower within the meaning of Section 4001 of ERISA or (solely for purposes of Section 302 of ERISA and Section 412 of the Code) is part of a group that includes the Borrower and that is treated as a single employer under Section 414 of the Code.
“Compliance Certificate”: a certificate duly executed by a Responsible Officer on behalf of the Borrower, substantially in the form of Exhibit B hereto or such other form that is reasonably acceptable to the Administrative Agent.
“Competitor”: as defined in the definition of “Disqualified Institution”.
“Conduit Lender”: any special purpose entity organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument (a copy of which shall be provided by the Administrative Agent to the Borrower upon request), subject to the consent of the Administrative Agent and the Borrower (which consent shall not be unreasonably withheld); provided, that (x) the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations under this Agreement (including its obligation to fund a Loan) if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender and (y) each Conduit Lender shall be entitled to the benefits of Sections 4.9, 4.10, 4.11 and 11.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.6(b); provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to Sections 4.9, 4.10, 4.11 or 11.5 than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender, (b) be deemed to have any Commitment or (c) be designated if such designation would otherwise increase the costs of any Facility to the Borrower.
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“Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Interest Coverage Ratio”: as of any date of determination, the ratio of (a) the aggregate amount of Consolidated EBITDA for the period of four consecutive fiscal quarters ended on the most recent Test Date to (b) Consolidated Interest Expense for such four fiscal quarters.
“Consolidated EBITDA”: for any period:
(a) Consolidated Net Income for such period plus,
(b) without duplication and to the extent reflected as a charge in arriving at such Consolidated Net Income for such period (other than with respect to clauses (xii) and (xviii) below), the sum of the following amounts for such period:
(i) the aggregate amount of all provisions for all taxes (whether or not paid, estimated or accrued) based upon the income and profits of the Borrower or alternative taxes imposed as reflected in the provision for income taxes in the Borrower’s consolidated financial statements,
(ii) interest expense, amortization or write-off of debt discount and debt issuance costs, and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans),
(iii) depreciation and amortization expense,
(iv) amortization of intangibles (including goodwill) and organization costs,
(v) any extraordinary, unusual or non-recurring charges, expenses or losses (whether cash or non-cash) (including such expenses in connection with actual or prospective litigation, legal settlements, fines, judgments or orders),
(vi) non-cash compensation expenses from stock, options to purchase stock and stock appreciation rights issued to the management of the Borrower,
(vii) any other non-cash charges, non-cash expenses or non-cash losses of the Borrower or any of its Restricted Subsidiaries for such period (including deferred rent but excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period); provided, however, that cash payments made in such period or in any future period in respect of such non-cash charges, expenses or losses (excluding any such charge, expense or loss incurred in the ordinary course of business that constitutes an accrual of or a reserve for cash charges for any future period) shall be subtracted from Consolidated Net Income in calculating Consolidated EBITDA in the period when such payments are made,
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(viii) any impairment charges, write-off, depreciation or amortization of intangibles arising pursuant to Statement of Financial Accounting Standards No. 141 or to Statement of Financial Accounting Standards No. 142 and any other non-cash charges resulting from purchase accounting,
(ix) proceeds of business interruption insurance in an amount representing the earnings for the applicable period that such proceeds are intended to replace (whether or not received so long as such Person in good faith expects to receive the same within the next four (4) fiscal quarters (it being understood that to the extent not actually received within such fiscal quarters, such proceeds shall be deducted in calculating Consolidated EBITDA for such fiscal quarters)),
(x) any earn-out obligation and contingent consideration obligations (including adjustments thereof and purchase price adjustments) incurred in connection with any Permitted Acquisition or any other Investment made in compliance with Section 8.7 or any Investment consummated prior to the Closing Date, which is paid or accrued during such period,
(xi) to the extent actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance, fees, costs, expenses or reserves incurred to the extent covered by indemnification provisions in any agreement in connection with any sale of Capital Stock, Permitted Acquisition, Investment, Restricted Payment, Asset Sale, or incurrences, repayments or amendments of Indebtedness, in each case, including any such transaction consummated prior to the Closing Date and whether or not received so long as such Person in good faith expects to receive the same within the next four (4) fiscal quarters (it being understood that to the extent not actually received within such fiscal quarters, such proceeds shall be deducted in calculating Consolidated EBITDA for such fiscal quarters),
(xii) pro forma cost savings, operating expense reductions, operating improvements and synergies related to, and net of the amount of actual benefits realized during such period, from Permitted Acquisitions or other permitted Investments, restructurings, cost savings initiatives or other initiatives that are reasonably identifiable, factually supportable and projected by the Borrower in good faith to result from actions that have been taken, committed to be taken or are expected to be taken (in the good faith determination of the Borrower), in each case, within eighteen (18) months after such event; provided that the aggregate amount of addbacks made pursuant to this clause (xii) shall not exceed 20% of Consolidated EBITDA for such period (calculated prior to giving effect to any adjustments pursuant to this clause (xii)),
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(xiii) any reduction in revenue resulting from the purchase accounting effects of adjustments to deferred revenue in component amounts required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to the Borrower and its Restricted Subsidiaries), as a result of any acquisition consummated prior to the Closing Date or any Permitted Acquisition,
(xiv) any loss realized upon the sale or other disposition of any asset (including pursuant to any sale/leaseback transaction) that is not Disposed of in the ordinary course of business and any loss realized upon the sale or other disposition of any Capital Stock of any Person,
(xv) any unrealized losses in respect of Hedge Agreements,
(xvi) any unrealized foreign currency translation losses in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person,
(xvii) the amount of any minority expense net of dividends and distributions paid to the holders of such minority interest,
(xviii) cash receipts not included in Consolidated EBITDA in any period solely to the extent that the corresponding non-cash gains relating to such receipts were deducted in the calculation of Consolidated EBITDA pursuant to clause (b)(vii) above for any previous period and not added back,
(xix) any costs, fees and expenses associated with the cost reduction, operational restructuring and business improvement efforts of any consulting firm engaged by the Borrower or its Restricted Subsidiaries to perform such service;
(xx) the amount of any restructuring charges or reserve (including those relating to severance, relocation costs and one-time compensation charges), any charges, costs, fees and expenses realized upon the termination or cancellation of leases, software licenses or other contracts in connection with the operational restructuring and business improvement efforts of the Borrower and its Restricted Subsidiaries; and
(xxi) Transaction Costs and any other costs, fees and expenses incurred in connection with and charges related to any Permitted Acquisition, Investments, issuances or Incurrence of Indebtedness, Dispositions, issuances of Capital Stock or refinancing transactions and modifications of instruments of Indebtedness, in each case, whether or not consummated; minus
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(c) to the extent included in arriving at such Consolidated Net Income for such period, the sum of the following amounts for such period:
(i) interest income,
(ii) any extraordinary, unusual or non-recurring income or gains whether or not included as a separate item in the statement of Consolidated Net Income,
(iii) all non-cash gains on the sale or disposition of any property other than inventory sold in the ordinary course of business,
(iv) any other non-cash income (excluding any items that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period that are described in the parenthetical to clause (b)(vii) above),
(v) any gain realized upon the sale or other disposition of any asset (including pursuant to any sale/leaseback transaction) that is not Disposed of in the ordinary course of business and any gain realized upon the sale or other disposition of any Capital Stock of any Person,
(vi) any unrealized gains in respect of Hedge Agreements, and
(vii) any unrealized foreign currency translation gains in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person, all as determined on a consolidated basis; and plus
(d) the annualized impact of buyer fee increases on any business acquired in a Permitted Acquisition.
“Consolidated Interest Expense”: for any period, (a) the total interest expense of the Borrower and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of the Borrower and its Restricted Subsidiaries, including any such interest expense consisting of (i) interest expense attributable to Capital Lease Obligations, (ii) amortization of debt discount, (iii) interest in respect of Indebtedness of any other Person that has been guaranteed by the Borrower or any Restricted Subsidiary, but only to the extent that such interest is actually paid by the Borrower or any Restricted Subsidiary, (iv) non-cash interest expense, (v) the interest portion of any deferred payment obligation and (vi) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, plus (b) preferred stock dividends paid in cash in respect of Disqualified Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary, minus (c) to the extent otherwise included in such interest expense referred to in clause (a) above, amortization or write-off of financing costs, in each case under clauses (a) through (c) as determined on a consolidated basis in accordance with GAAP; provided, that gross interest expense shall be determined after giving effect to any net payments made or received by the Borrower and its Restricted Subsidiaries with respect to interest rate Hedge Agreements.
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“Consolidated Net Income”: for any period, the consolidated net income (or loss) of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided, that there shall be excluded the income (or loss) of any Person (other than a Restricted Subsidiary of the Borrower) in which the Borrower or any of its Restricted Subsidiaries has an ownership interest recorded using the equity method, except to the extent that any such income is actually received by the Borrower or such Restricted Subsidiary in the form of dividends or similar distributions.
“Consolidated Net Leverage Ratio”: the ratio of (a) Consolidated Total Debt on the last day of any fiscal quarter of the Borrower to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended.
“Consolidated Senior Secured Net Leverage Ratio”: the ratio of (a) Consolidated Total Debt on the last day of any fiscal quarter of the Borrower, except that portion thereof consisting of Indebtedness that is not secured by a Lien on any Property of any Group Member, to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters then ended.
“Consolidated Total Assets”: as of any date, the total assets of Borrower and its Restricted Subsidiaries, determined in accordance with GAAP, as set forth on the consolidated balance sheet of Borrower as of such date.
“Consolidated Total Debt”: at any date, (a) the aggregate amount shown or required by GAAP to be shown as a liability on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of such date in respect of (i) all obligations for borrowed money; (ii) all Capital Lease Obligations and purchase money indebtedness; (iii) any obligations evidenced by notes, bonds, debentures or other similar instruments; and (iv) all unreimbursed obligations in respect of drawn letters of credit, bank guarantees or similar instruments (provided that Consolidated Total Debt shall not include Indebtedness in respect of any letter of credit, bank guaranty or similar instrument, except to the extent of any unreimbursed obligations in respect of any drawn letter of credit, bank guaranty or similar instruments) minus (b) Unrestricted Cash; provided, that, solely for purposes of calculating Consolidated Total Debt in connection with determining the Consolidated Senior Secured Net Leverage Ratio for purposes of Sections 4.17 and 8.2(w), Unrestricted Cash that is the proceeds of the Incremental Loans Incurred under Sections 4.17 or Indebtedness Incurred pursuant to Section 8.2(w) shall not, taken together with all such other proceeds of Incremental Loans previously deducted from Consolidated Total Debt in connection with determining the Consolidated Senior Secured Net Leverage Ratio for purposes of Sections 4.17 and 8.2(w) in connection with the incurrence of any Incremental Loans or Incremental Commitments under Section 4.17 or Indebtedness Incurred pursuant to Section 8.2(v), exceed $125,000,000. For the avoidance of doubt, Consolidated Total Debt shall not include any Indebtedness of a Securitization Subsidiary in connection with a Permitted Securitization.
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“XXXXX”: the Canadian Overnight Repo Rate Average administered and published by the Bank of Canada (or any successor administrator).
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“XXXXX Administrator”: the Bank of Canada (or any successor administrator).
“XXXXX Determination Date”: has the meaning specified in the definition of “Daily Simple XXXXX”.
“XXXXX Rate Day”: has the meaning specified in the definition of “Daily Simple XXXXX”.
“Corresponding Tenor”: with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding any business day adjustment) as such Available Tenor.
“Covered Entity”: as defined in Section 11.24(b).
“Covered Party”: as defined in Section 11.24(a).
“Credit Agreement Refinancing Indebtedness”: (a) Permitted Pari Passu Refinancing Debt, (b) Permitted Junior Refinancing Debt, (c) Permitted Unsecured Refinancing Debt and (d) Indebtedness Incurred or Refinancing Revolving Facility Commitments obtained pursuant to a Refinancing Amendment, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Term Loans, Incremental Loans, Refinancing Term Loans, Refinancing Revolving Facility Loans, outstanding Revolving Facility Loans or (in the case of Refinancing Revolving Facility Commitments obtained pursuant to a Refinancing Amendment) Revolving Facility Commitments, Incremental Revolving Facility Commitments or the Refinancing Revolving Facility Commitments hereunder (including any successive Credit Agreement Refinancing Indebtedness) (“Refinanced Debt”); provided, that (i) such extending, renewing or refinancing Indebtedness (including, if such Indebtedness includes any Refinancing Revolving Facility Commitments, the unused portion of such Refinancing Revolving Facility Commitments) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt (and, in the case of Refinanced Debt consisting, in whole or in part, of unused Revolving Facility Commitments or Refinancing Revolving Facility Commitments, the amount thereof), plus accrued and unpaid interest capitalized, any premium or other reasonable amount paid, and fees and expenses reasonably incurred in connection therewith, (ii) such Indebtedness has a later maturity and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt, (iii) such Refinanced Debt shall be repaid, defeased or satisfied and discharged, and all accrued interest, fees and premiums (if any) in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, Incurred or obtained; provided, that to the extent that such Refinanced Debt consists, in whole or in part, of Revolving Facility Commitments or Refinancing Revolving Facility Commitments (or Revolving Facility Loans, Refinancing Revolving Facility Loans or Swingline Loans Incurred pursuant to any Revolving Facility Commitments or Refinancing Revolving Facility Commitments), such Revolving Facility Commitments or Refinancing Revolving Facility Commitments, as applicable, shall be terminated, and all accrued fees in connection therewith shall be paid, on the date such Credit Agreement Refinancing Indebtedness is issued, Incurred or obtained, (iv) such Indebtedness will have terms and conditions that (taken as a whole) are substantially identical to (or in the case of any Credit Agreement Refinancing Indebtedness in the form of notes, are on market terms or are substantially identical to), or (taken as a whole) are no more favorable to the investors providing such Credit Agreement Refinancing Indebtedness than, the Refinanced Debt (in each case, except for (x) pricing, premiums, rate floors and optional prepayment terms and (y) covenants or other provisions applicable only to the period after the Latest Maturity Date), (v) such Indebtedness may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit facility shall be deemed to satisfy clause (ii) of this definition so long as (x) such credit facility includes customary “rollover” provisions and (y) assuming such bridge or other interim credit facility were to be extended pursuant to such “rollover” provisions, such extended credit facility would comply with clause (ii) above) and in which case, on or prior to the first anniversary of the incurrence of such “bridge” or other interim credit facility, clause (iv) in this definition shall not prohibit the inclusion of customary terms for “bridge” facilities, including customary mandatory prepayment, repurchase or redemption provisions, (vi) if the Refinanced Debt is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Refinanced Debt, taken as a whole and (vii) if the Refinanced Debt is secured by a Lien that is junior to the Lien securing the Obligations, such modification, refinancing, refunding, renewal or extension, if secured, is secured by a Lien that is junior to the Lien securing the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Refinanced Debt, taken as a whole.
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“Daily Simple XXXXX”: for any day (a “XXXXX Rate Day”), a rate per annum equal to XXXXX for the day (such day “XXXXX Determination Date”) that is five (5) RFR Business Days prior to (i) if such XXXXX Rate Day is an RFR Business Day, such XXXXX Rate Day or (ii) if such XXXXX Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such XXXXX Rate Day, in each case, as such XXXXX is published by the XXXXX Administrator on the XXXXX Administrator’s website. Any change in Daily Simple XXXXX due to a change in XXXXX shall be effective from and including the effective date of such change in XXXXX without notice to the Borrower. If by 5:00 p.m. (Toronto time) on any given XXXXX Determination Date, XXXXX in respect of such XXXXX Determination Date has not been published on the XXXXX Administrator’s website and a Benchmark Replacement Date with respect to the Daily Simple XXXXX has not occurred, then XXXXX for such XXXXX Determination Date will be XXXXX as published in respect of the first preceding RFR Business Day for which such XXXXX was published on the XXXXX Administrator’s website, so long as such first preceding RFR Business Day is not more than five (5) Business Days prior to such XXXXX Determination Date.
“Daily Simple SOFR”: for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Day prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR.
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“Declined Amount”: as defined in Section 4.2(e).
“Declining Lender”: as defined in Section 4.2(e).
“Deed of Hypothec”: means any deed of hypothec from time to time by any Loan Party in favor of the Administrative Agent, as Hypothecary Representative, to secure any Canadian Secured Obligations.
“Default”: any of the events specified in Section 9, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Default Right”: as defined in Section 11.24(b).
“Defaulting Lender”:
any Lender that has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swingline Loans within two (2)
Business Days of the date required to be funded by it hereunder (unless such Lender notifies the Administrative Agent and the Borrower
in writing that such failure is the result of such Xxxxxx’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied), (b) notified the Borrower, the Administrative Agent,
any Issuing Lender, theany
Swingline Lender or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or
has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement (unless
such writing or public statement indicates that such position is based on such Xxxxxx’s good faith determination that a condition
precedent (specifically identified and including the particular default, if any) to funding a Loan or issuing a Letter of Credit, as applicable,
under this Agreement cannot be satisfied) or under other agreements generally in which it commits to extend credit, (c) failed, within
three (3) Business Days after request by the Administrative Agent and the Borrower or any Issuing Lender, to confirm that it will comply
with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters
of Credit and Swingline Loans (provided, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon
receipt of such written confirmation by the Administrative Agent or such Issuing Lender and the Borrower), (d) otherwise failed to pay
over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days
of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that has become
or is insolvent, (ii) 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 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) become the subject of or has a parent company that has become the subject of a Bail-In
Action; provided, that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity
interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest
does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement
of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow
or disaffirm any contracts or agreements made with such Lender.
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“Discharge”: as defined in Section 1.3(c)(ii).
“Disinterested Director”: with respect to any Person and transaction, a member of the board of directors (or equivalent governing body) of such Person who does not have any material direct or indirect financial interest in or with respect to such transaction.
“Disposition”: with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
“Disqualified Capital Stock”: any Capital Stock which, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital Stock, in each case of clauses (a) through (d) above, prior to the date that is ninety-one (91) days after the later of the Revolving Facility Termination Date and the date final payment is due on the Term Loans. Notwithstanding the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case, in the ordinary course of business of the Borrower or any Restricted Subsidiary, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Capital Stock held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Borrower (or any Subsidiary) shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
“Disqualified
Institution”: (i) the Persons identified as “Disqualified Institutions” in writing to the Lead Arranger by the Borrower
on or prior to the ClosingFirst
Amendment Effective Date and (ii) as of any date (a) competitors of the Borrower or any of its Subsidiaries that are in the
same or a similar line of business and, in each case, identified in writing to the Administrative Agent from time to time prior to such
date (each such entity, a “Competitor”) and (b) Affiliates of Competitors or any Persons identified in the foregoing
clause (i) to the extent such Affiliates are reasonably identifiable (on the basis of the similarity of such Affiliate’s name to
the name of an entity so identified in writing) or designated in writing by the Borrower from time to time prior to such date and to the
extent such Affiliates are not bona fide debt funds or investment vehicles that are primarily engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business with appropriate information
barriers in place; provided that no updates to the list of Disqualified Institutions shall be deemed to retroactively disqualify
any parties that have previously acquired an assignment or participation interest or any party for which the “trade date”
with respect to an assignment or participation interest has occurred in respect of any Facility in compliance with the provisions of this
Agreement from continuing to hold or vote such previously acquired assignments and participations or from closing an assignment or participation
interest sale for which the “trade date” has previously occurred on the terms set forth herein for Lenders that are not Disqualified
Institutions. The list of Disqualified Institutions shall be made available upon request to all Lenders and prospective assignees.
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“Documentation Agent”: each of Truist Bank, RBC Capital Markets, The Huntington National Bank and Xxxxx Fargo Securities LLC.
“Dollar Equivalent”: for any amount, at the time of determination thereof, (a) if such amount is expressed in Dollars, such amount, and (b) if such amount is expressed in Canadian Dollars, the equivalent of such amount in Dollars determined by using the rate of exchange for the purchase of Dollars with Canadian Dollars last provided (either by publication or otherwise provided to the Administrative Agent or the applicable Issuing Lender) by Reuters on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases to be available or ceases to provide a rate of exchange for the purchase of Dollars with Canadian Dollars, as provided by such other publicly available information service which provides that rate of exchange at such time in place of Reuters chosen by the applicable Issuing Lender or the Administrative Agent, after consultation with the Borrower, in its reasonable discretion (or if such service ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by the applicable Issuing Lender or the Administrative Agent, after consultation with the Borrower, using any method of determination it deems appropriate in its reasonable discretion). Any determination by the Administrative Agent or the applicable Issuing Lender pursuant to clause (b) above shall be conclusive absent manifest error.
“Dollars” and “$”: denote the lawful currency of the United States of America.
“Domestic Subsidiary”: any Restricted Subsidiary of the Borrower organized under the laws of any jurisdiction within the United States.
“Earnout Obligation”: an obligation to pay the seller in an acquisition a future payment that is contingent upon the financial performance of the business acquired in such acquisition exceeding a specified benchmark level and that becomes payable when such excess financial performance is achieved.
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature”: an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Environmental Laws”: any and all applicable foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or other Requirements of Law (including common law) regulating, relating to or imposing liability concerning protection or preservation of the environment and natural resources, including those relating to the generation, use storage, transportation, disposal, release, or threatened release of, or exposure to, Materials of Environmental Concern.
“Environmental Permits”: any and all permits, licenses, approvals, registrations, exemptions and other authorizations issued by any Governmental Authority under any Environmental Law.
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time, the regulations promulgated thereunder and any successor thereto.
“Escrow Debt”: Indebtedness permitted to be incurred hereunder that is incurred in connection with any transaction permitted hereunder for so long as proceeds thereof have been deposited into an escrow account or maintained under a similar contingent release arrangement, in each case, on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default”: any of the events specified in Section 9; provided, that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Exchange Act”: the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Excluded Indebtedness”: all Indebtedness permitted by Section 8.2 (except the net cash proceeds of any Permitted Pari Passu Refinancing Debt, any Permitted Junior Refinancing Debt or any other Credit Agreement Refinancing Indebtedness).
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“Excluded Subsidiaries”: (a) any Immaterial Subsidiary, (b) any Foreign Subsidiary other than, with respect to the 2024 Canadian Revolving Facility only, any Canadian Subsidiary, (c) any Subsidiary that is not a Wholly Owned Subsidiary of the Borrower; provided that a Subsidiary that ceases to be a Wholly Owned Subsidiary of the Borrower solely as a result of (x) the Capital Stock of such Subsidiary becoming owned by an Affiliate of the Borrower or (y) any transaction that is not for a bona fide business purpose (as determined by the Borrower in good faith), in each case, shall not be deemed to be an Excluded Subsidiary pursuant to this clause (c), (d) any Unrestricted Subsidiary, (e) any special purpose vehicle (or similar entity), (f) any captive insurance subsidiary (g) any not-for-profit Subsidiary, (h) any Subsidiary, including any regulated entity that is subject to net worth or net capital or similar capital and surplus restrictions that is prohibited or restricted by applicable Requirement of Law, accounting policies or by contractual obligation existing on the Closing Date or, in the case of a newly acquired Subsidiary, in existence on the date such Subsidiary is so acquired (and so long as such contractual obligation was not incurred in contemplation of such acquisition) from providing a guaranty pursuant to the Guarantee and Collateral Agreement, or if such guaranty would require governmental (including regulatory) or third party consent, approval, license or authorization (except to the extent that such consent, approval, license or authorization has been obtained), (i) any other Subsidiary with respect to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequences of providing a guarantee of or granting Liens to secure the Obligations would be excessive in relation to the practical benefit to be afforded thereby and (j) any Securitization Subsidiary.
“Excluded Swap Obligations”: as defined in the Guarantee and Collateral Agreement.
“Excluded
Taxes”: means any of the following Taxes imposed on or with respect
to a Lender or the Administrative Agent or other recipient of a payment
to be made by or on account of an obligation of the Applicable Borrower under any Loan Document or required to be withheld
or deducted from a payment to a Lender or,
the Administrative Agent or such other recipient: (i) Taxes
imposed on or measured by net income (however denominated), branch profits Taxes and franchise Taxes, in each case, (a) imposed as a result
of the Administrative Agent or,
any Lender or such other recipient being organized under the
laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing
such Tax (or any political subdivision thereof) or (b) that are Other Connection Taxes, (ii) Taxes that are attributable to such
Lender’s, such other recipient’s or the Administrative
Agent’s failure to comply (other than as a result of any change in any Requirement of Law) with the requirements of Sections 4.10(e),
(iii) with respect to a Loan or Commitment to the Borrower (for the avoidance
of doubt, excluding the Canadian Borrower), in the case of a Lender, United States federal withholding Taxes imposed on amounts
payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect
on the date on which (a) such Lender acquires such interest in the Loan or Commitment or (b) such Lender changes its lending office, except,
in each case to the extent that amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before
such Lender became a party hereto or to such Lender immediately before it changed its lending office, and
(iv) any withholding Taxes imposed under FATCA.,
and (v) Canadian federal withholding Taxes imposed as a result of (A) any Lender or other recipient not dealing at “arm’s
length” (within the meaning of the Canadian Tax Act) with a Loan Party, (B) any Lender or other recipient being a “specified
non-resident shareholder” (within the meaning of subsection 18(5) of the Canadian Tax Act) of the Canadian Borrower or not dealing
at “arm’s length” with a “specified shareholder” (within the meaning of subsection 18(5) of the Canadian
Tax Act) of the Canadian Borrower, or (C) the Canadian Borrower being a “specified entity” (as defined in proposed subsection
18.4(1) of the Canadian Tax Act as it is proposed to be amended by certain Tax proposals released by the Department of Finance (Canada)
on November 28, 2023) in respect of any Lender or other recipient, except in the case of clauses (A) through (C) above where (x) the non-arm’s
length relationship or (y) any other relationship contemplated in clause (B) or (C), as applicable, arises in connection with or as a
result of such Lender or other recipient executing, delivering, being a party to, engaging in any transactions pursuant to, performing
its obligations under, receiving payments under, receiving or perfecting a security interest under or enforcing any rights under this
Agreement or any Loan Document.
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“Existing Credit Agreement”:
that certain Xxxxxxx and Restated Credit Agreement, dated as of March 11, 2014
(as amended, restated, amended and restated, supplemented or otherwise modified prior to the date
hereof), among the Borrower (formally known as KAR
Auction Services, Inc.), the lenders and issuing banks party thereto from
time to time and JPMorgan Chase Bank, N.A., as the
administrative agent.
“Existing Letter of Credit”: any letter of credit issued, extended or renewed under the Existing Credit Agreement prior to the Closing Date and scheduled on Schedule 1.1(c).
“Existing Loans”: as defined in Section 4.18(a).
“Existing Revolving Facility Commitment”: the Revolving Commitments (as defined in the Existing Credit Agreement) under the Existing Credit Agreement.
“Existing Revolving Facility”: the Revolving Facility (as defined in the Existing Credit Agreement) under the Existing Credit Agreement.
“Existing Securitization”: the securitizations pursuant to (i) the Tenth Amended and Restated Receivables Purchase Agreement, dated September 28, 2022, as may be amended, amended and restated or otherwise modified from time to time, by and among Automotive Finance Corporation (“AFC”), AFC Funding Corporation, Fairway Finance Company, LLC, Fifth Third Bank, National Association, Chariot Funding LLC, PNC Bank, National Association, Thunder Bay Funding, LLC, Truist Bank, BMO Capital Markets Corp., JPMorgan Chase Bank, N.A., Royal Bank of Canada and Bank of Montreal, and (ii) the Receivables Purchase Agreement, dated March 1, 2023, as may be amended, amended and restated or otherwise modified from time to time, by and among Automotive Finance Canada Inc. (“AFCI”), the Borrower, Computershare Trust Company of Canada, BMO Xxxxxxx Xxxxx, Inc. and Royal Bank of Canada.
“Existing Tranche”: as defined in Section 4.18(a).
“Extended Canadian Loan”: any Extended Loan with respect to the 2024 Canadian Revolving Facility.
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“Extended Closing Date Loan”: any Extended Loan with respect to the Closing Date Revolving Facility.
“Extended Loans”: as defined in Section 4.18(a).
“Extended Tranche”: as defined in Section 4.18(a).
“Extending Lender”: as defined in Section 4.18(b).
“Extension Amendment”: as defined in Section 4.18(c).
“Extension Date”: as defined in Section 4.18(d).
“Extension Election”: as defined in Section 4.18(b).
“Extension Request”: as defined in Section 4.18(a).
“Facility”:
each of (a) the Term Facility and,
(b) the Closing Date Revolving Facility and (c) the 2024 Canadian Revolving
Facility.
“FATCA”: Sections 1471 through 1474 of the Code, effective as of the date hereof (and any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations promulgated thereunder or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Effective Rate”: for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than zero, then such rate shall be deemed to be zero for the purposes of this Agreement.
“Federal Reserve Board”: the Board of Governors of the Federal Reserve System of the United States of America.
“First Amendment”: First Amendment Agreement to the Credit Agreement, dated as of January 19, 2024, among the Borrower, the Canadian Borrower, the other Loan Parties party thereto, the Lenders party thereto and the Administrative Agent.
“First Amendment Effective Date”: January 19, 2024.
“First Tier Foreign Subsidiary”: each Foreign Subsidiary with respect to which the Borrower or any of its Domestic Subsidiaries directly owns or controls all of such Foreign Subsidiary’s issued and outstanding Capital Stock.
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“Fitch”: Fitch Ratings, Inc. and any affiliate thereof and any successor thereto that is a nationally-recognized rating agency.
“Fixed Amount”: as defined in Section 1.3(b).
“Fixed Incremental Amount”: as defined in the definition of “Incremental Amount”.
“Fixed Restricted Payment Basket Amount”: $125,000,000 in each fiscal year.
“Flood Insurance Laws”: collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 and the Biggert –Waters Flood Insurance Reform Act of 2012, as now or hereafter in effect or any successor statute thereto, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing, as amended or modified from time to time.
“Floor”:
the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment
or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate or,
Adjusted Daily Simple SOFR, Adjusted Daily Simple XXXXX, Adjusted Term
XXXXX Rate or the Canadian Prime Rate, as applicable. The initial Floor for each of the Adjusted Term SOFR Rate or,
Adjusted Daily Simple SOFR, Adjusted Daily Simple XXXXX, Adjusted Term
XXXXX Rate or the Canadian Prime Rate, shall be (x) in the case of the 2024
Canadian Revolving Facility and the Closing Date Revolving Facility, 0.00% per annum and (y) in the case of the Term Facility,
0.50% per annum.
“Foreign Non-Canadian Subsidiary”: any Foreign Subsidiary other than any Canadian Subsidiary.
“Foreign Subsidiary”: any Restricted Subsidiary of the Borrower that is not a Domestic Subsidiary or that is a Foreign Subsidiary Holdco.
“Foreign Subsidiary Holdco”: any Domestic Subsidiary that (a) has no material assets other than equity (or equity and other securities) of one or more Foreign Subsidiaries and other assets relating to the ownership interest in any such securities and (b) has no Guarantee Obligations in respect of any Indebtedness for borrowed money of the Borrower or any Domestic Subsidiary.
“Former Properties”: as defined in Section 5.17(d).
“Funding Office”: the office of the Administrative Agent specified in Section 11.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.
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“GAAP”: generally accepted accounting principles in the United States as in effect from time to time. In the event that any Accounting Change shall occur and such change would otherwise result in a change in the method of calculation of financial covenants, standards or terms in this Agreement or if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date in GAAP regardless of whether any such notice is given before or after any Accounting Change or in the application thereof, then the Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. “Accounting Changes” refers to 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, if applicable, the SEC. Notwithstanding any other provision contained herein, the amount of any Indebtedness under GAAP with respect to Capital Lease Obligations shall be determined in accordance with the definition of Capital Lease Obligations.
“Governmental Authority”: any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to any government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).
“Group Members”: the collective reference to the Borrower and its Restricted Subsidiaries.
“Guarantee and Collateral
Agreement”: as the context may require, that certain
U.S. Guarantee and Collateral Agreement,
dated as of the date hereof, among the Loan Parties and the Administrative Agent and/or
Canadian Guarantee and Collateral Agreement.
“Guarantee Obligation”:
as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including
any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity
or similar obligation which (in the case of either clause (a) or clause (b)), guarantees or has the effect of guaranteeing any Indebtedness,
leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary
obligor”) in any manner, whether directly or indirectly, including any such obligation of the guaranteeing person, whether or
not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against
loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business or product warranties in effect on the ClosingFirst
Amendment Effective Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement
(other than such obligations with respect to Indebtedness). The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
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“Hedge Agreements”: any interest rate protection agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
“Hedge Termination Value”: in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) have been determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).
“Hypothecary Representative”: as defined in Section 10.17.
“Immaterial Subsidiary”: any Restricted Subsidiary that is not a Material Subsidiary; provided that all Immaterial Subsidiaries, in the aggregate, shall not (a) contribute greater than ten percent (10.0%) of the Borrower’s Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1 or (b) contribute greater than ten percent (10.0%) of the Borrower’s Consolidated Total Assets as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.1.
“Incremental Amount”: at any time, an amount not to exceed:
(a) the greater of (i) $230,000,000 and (ii) 100% of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1; plus
(b) the aggregate principal amount of the sum of (i) voluntary prepayments of Term Loans and Incremental Equivalent Debt and/or permanent reductions of the Revolving Facility Commitments or commitments in respect of any Incremental Equivalent Debt and (ii) the consideration paid in connection with any purchases of any Loans outstanding hereunder pursuant to Section 4.13(b) or Section 11.6(g) by an Affiliated Lender from time to time, except, in each case, to the extent (x) such prepayments were funded with the proceeds of long-term Indebtedness (other than revolving credit facilities) or (y) such Term Loans or Incremental Equivalent Debt were incurred pursuant to the Ratio Incremental Amount (together with clause (a) above, the “Fixed Incremental Amount”, which shall be reduced by previously used amounts of the Fixed Incremental Amount for Incremental Facilities and Incremental Equivalent Debt); plus
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(c) an unlimited amount if, after giving effect to the incurrence of any Incremental Facilities or Incremental Equivalent Debt, (i) in the case of Incremental Facilities or Incremental Equivalent Debt that are secured, the Consolidated Senior Secured Net Leverage Ratio is less than or equal to 2.75:1.00 (assuming for purposes of such calculation that the Incremental Revolving Facility Commitments being Incurred at the time of such calculation are fully drawn) and (ii) in the case of Incremental Facilities or Incremental Equivalent Debt that are unsecured, if the Consolidated Interest Coverage Ratio is greater than or equal to 2.00:1.00 (the “Ratio Incremental Amount”); provided that for purposes of this clause (c), if the proceeds of the relevant Incremental Facility or Incremental Equivalent Debt will be applied to finance a Limited Condition Transaction, the Ratio Incremental Amount will be determined in accordance with Section 1.3. It is understood and agreed that if the applicable incurrence test is satisfied on a pro forma basis after giving effect to any Incremental Facility or Incremental Equivalent Debt in lieu thereof, such Incremental Facility or Incremental Equivalent Debt, as applicable, may be incurred under the Ratio Incremental Amount regardless of whether there is capacity under the Fixed Incremental Amount.
“Incremental Commitment Agreement”: an agreement delivered by an Incremental Lender, in form and substance reasonably satisfactory to the Administrative Agent and accepted by the Applicable Borrower, by which an Incremental Lender confirms its Incremental Commitment in accordance with the terms of Section 4.17.
“Incremental 2024 Canadian Revolving Facility Commitments”: any Incremental Revolving Facility Commitments with respect to the 2024 Canadian Revolving Facility.
“Incremental 2024 Canadian Revolving Facility Loan”: any Incremental Revolving Facility Loan with respect to the Incremental 2024 Canadian Revolving Facility Commitments.
“Incremental Closing Date Revolving Facility Commitments”: any Incremental Revolving Facility Commitments with respect to the Closing Date Revolving Facility.
“Incremental Closing Date Revolving Facility Loan”: any Incremental Revolving Facility Loan with respect to the Incremental Closing Date Revolving Facility Commitments.
“Incremental Commitments”: as defined in Section 4.17(a).
“Incremental Equivalent Debt”: as defined in Section 8.2(w).
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“Incremental Facilities”: as defined in Section 4.17(a).
“Incremental Lender”: a Lender, Approved Fund or other Person that provides an Incremental Commitment.
“Incremental Loans”: as defined in Section 4.17(a).
“Incremental Revolving Facility Commitments”: as defined in Section 4.17(a).
“Incremental Revolving Facility”: as defined in Section 4.17(a).
“Incremental Revolving Facility Lender”: with respect to any Incremental Revolving Facility, each Revolving Facility Lender providing any portion of such Incremental Revolving Facility.
“Incremental Revolving Facility Loans”: as defined in Section 4.17(a).
“Incremental Term Facility”: as defined in Section 4.17(a).
“Incremental Term Loan Commitments”: as defined in Section 4.17(a).
“Incremental Term Loans”: as defined in Section 4.17(c).
“Incur”: issue, assume, enter into any Guarantee Obligation in respect of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Restricted Subsidiary of the Borrower (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary. The accrual of interest or dividends, the accretion of accreted value, the accretion of amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness will not be deemed to be an Incurrence of Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
“Incurrence-Based Amount”: as defined in Section 1.3(b).
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“Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables Incurred in the ordinary course of such Person’s business and Earnout Obligations), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, in each case, that have not been repaid, defeased or otherwise terminated, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (excluding trade accounts payable incurred in the ordinary course of business), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit or similar arrangements, (g) all Guarantee Obligations of such Person in respect of obligations of others of the kind referred to in clauses (a) through (f) above, (h) all obligations of the kind referred to in clauses (a) through (g) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation; provided, that the amount of such Indebtedness shall be limited to the lesser of such obligation and the value of the property subject to such Lien if such Person has not assumed or become liable for the payment of such obligation, (i) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of Disqualified Capital Stock of such Person, and (j) for the purposes of Sections 8.2 and 9(e) only, all obligations of such Person in respect of Hedge Agreements, but in each case in the above clauses excluding obligations under operating leases, Escrow Debt and obligations under employment contracts entered into in the ordinary course of business. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. The amount of the obligations of the Borrower or any Subsidiary in respect of any Hedge Agreement shall, at any time of determination and for all purposes under this Agreement, be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Hedge Agreement were terminated at such time giving effect to current market conditions notwithstanding any contrary treatment in accordance with GAAP.
“Indemnified Liabilities”: as defined in Section 11.5.
“Indemnified Taxes”: (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (ii) to the extent not otherwise described in (i), Other Taxes.
“Indemnitee”: as defined in Section 11.5.
“Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“Insolvent”: pertaining to a condition of Insolvency.
“Intellectual Property”: the collective reference to all rights and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses and technology, know-how, trade secrets and proprietary information of any type, domain names and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
“Intellectual Property
Security Agreement”: as the context may require, each
U.S. Intellectual Property Security Agreement and
each Canadian Intellectual Property Security Agreement, to be executed and delivered by each applicable Loan Party in accordance
with Section 5.9 of the Guarantee and Collateral Agreement.
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“Intercreditor Agreement”: an intercreditor agreement, substantially in the form of Exhibit K-1 hereto or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
“Interest Payment Date”: (a) as to any Base Rate Loan or Canadian Prime Rate Loan (other than any Swingline Loan), the last day of each March, June, September and December to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any RFR Loan, each date that is on the numerically corresponding day in each calendar month that is one (1) month after the Borrowing of such Loan (or, if there is no numerically corresponding day in such month, then on the last day of such month), (c) as to any Term Benchmark Loan having an Interest Period of three (3) months or less, the last day of such Interest Period, (d) as to any Term Benchmark Loan denominated in Dollars having an Interest Period longer than three (3) months, each day that is three (3) months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period, (e) as to any Loan (other than any Revolving Facility Loan that is a Base Rate Loan or a Canadian Prime Rate Loan and any Swingline Loan), the date of any repayment or prepayment made in respect thereof and (f) as to any Swingline Loan, the day that such Loan is required to be repaid.
“Interest Period”: as to any (x) Term Benchmark Borrowing denominated in Dollars, the period commencing on the date of such Term Benchmark Borrowing and ending one (1), three (3) or six (6) months thereafter, as selected by the Borrower in its notice of borrowing given with respect thereto and (y) with respect to any Term Benchmark Borrowing denominated in Canadian Dollars, the period commencing on the date of such Term Benchmark Borrowing and ending on the numerically corresponding day in the calendar month that is one (1) or three (3) months thereafter, as selected by the Canadian Borrower in its notice of borrowing given with respect thereto; provided, that, the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) the Applicable Borrower may not select an Interest Period under a particular Facility that would extend beyond the applicable Revolving Facility Termination Date or beyond the date final payment is due on the Term Loans, as applicable;
(iii) any 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 the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; and
(iv) the Applicable Borrower shall select Interest Periods so as not to require a payment or prepayment of any Term Benchmark Borrowing during an Interest Period for such Loan.
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“Investments”: as defined in Section 8.7.
“ISDA
CDS Definitions”: as defined in Section 11.1.
“Issuing Lender”: as the context may require, (a) each Lender listed on Schedule 3.7, acting through any of its Affiliates or branches, in its capacity as an issuer of Letters of Credit hereunder, (b) with respect to each Existing Letter of Credit, the Lender that issued such Existing Letter of Credit, and (c) any other Lender that may become an Issuing Lender pursuant to Section 3.7(c), with respect to Letters of Credit issued by such Lender. Each Issuing Lender may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates or branches of such Issuing Lender, in which case the term “Issuing Lender” shall include any such Affiliate or branch with respect to Letters of Credit issued by such Affiliate or branch.
“Joint Bookrunner”: (a) with respect to the Closing Date Revolving Facility Commitments, each of JPMorgan Chase Bank, N.A., Barclays Bank PLC, BofA Securities, Inc., Xxxxxxx Xxxxx Bank USA, BMO Capital Markets Corp., Fifth Third Bank, National Association and U.S. Bank National Association, and (b) with respect to the 2024 Canadian Revolving Facility Commitments, each of JPMorgan Chase Bank, N.A., BMO Capital Markets Corp., BofA Securities, Inc and RBC Capital Markets.
“Junior Debt”: as defined in Section 8.8.
“L/C Commitment”: as to each Issuing Lender, the amount listed next to its name on Schedule 3.7, as the same may be reduced or increased from time to time in accordance herewith.
“L/C Fee Payment Date”: the last day of each March, June, September and December and the last day of the Closing Date Revolving Facility Commitment Period.
“L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.11. The L/C Obligations as to any Closing Date Revolving Facility Lender shall be such Lender’s Closing Date Revolving Facility Percentage of the L/C Obligations then outstanding.
“L/C Participants”: the collective reference to all the Closing Date Revolving Facility Lenders (other than the Issuing Lenders in their capacities as such).
“Latest Maturity Date”: as of any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time, including the latest maturity or expiration date of any Incremental Loan, any Refinancing Term Loan, any Refinancing Revolving Facility Loan or any Refinancing Revolving Facility Commitment, in each case as extended in accordance with this Agreement from time to time.
“LCT Election”: as defined in Section 1.3(a).
“LCT Test Date”: as defined in Section 1.3(a).
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“Lead Arranger”: JPMorgan Chase Bank, N.A.
“Lender Vote/Directive”: as defined in Section 11.21.
“Lenders”: as defined in the preamble hereto; provided that unless the context otherwise requires, each reference herein to the Lenders shall be deemed to include any Conduit Lender.
“Letters of Credit”: any letter of credit issued pursuant to this Agreement and each Existing Letter of Credit.
“Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Acquisition”: any Permitted Acquisition or other permitted Investment that is not conditioned upon the availability of, or on obtaining, third-party financing.
“Limited Condition Transaction”: (a) any Limited Condition Acquisition and (b) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.
“Loan”: any loan made by any Lender to the Borrower pursuant to this Agreement.
“Loan Documents”: this Agreement, the Security Documents, the Notes, any Intercreditor Agreement and any other document designated by the Borrower and the Administrative Agent as a “Loan Document”.
“Loan Parties”: the collective reference to the Borrower, the Canadian Borrower and the Subsidiary Guarantors.
“Majority Facility
Lenders”: with respect to any Facility, the holders of more than 50% of the aggregate unpaid principal amount of the Term Facility
or the applicable Revolving Facility
Extensions of Credit, as the case may be, outstanding under such Facility (or, in the case of theany
Revolving Facility, prior to any termination of the applicable Revolving
Facility Commitments, the holders of more than 50% of the applicable
Total Revolving Facility Commitments). The Loans
and Commitments of any Defaulting Lender shall be disregarded in determining Majority Facility Lenders with respect to any Facility at
any time. The Loans and Commitments of any Affiliated Lender shall, for purposes of this definition, be subject to Section 11.21.
“Management Advances”: promissory notes issued on an unsecured basis by the Borrower to a Management Investor in accordance with the Management Stock Agreements to fund all or a portion of the purchase price paid in connection with the repurchase by the Borrower of its Capital Stock from such Management Investor, if such repurchase is occasioned by the death, disability, or retirement of such Management Investor.
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“Management Investors”: present or former officers, employees or directors of a Group Member who beneficially own outstanding capital stock of the Borrower.
“Management Stock Agreements”: any subscription agreement or stockholders agreement between the Borrower and any Management Investor.
“Material Acquisition”: as defined in Section 1.3(d).
“Material Adverse Effect”: a material adverse effect on (a) the business, assets, property, financial condition or results of operations of the Group Members, taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.
“Material Disposition”: as defined in Section 1.3(d).
“Material Domestic Subsidiary”: each Domestic Subsidiary which, (x) for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1, contributed greater than five percent (5.0%) of the Borrower’s (i) Consolidated EBITDA for such period or (ii) Consolidated Total Assets as of the end of such period or (y) has been designated pursuant to Section 7.9(e).
“Material Foreign Subsidiary”: each Foreign Subsidiary which, (x) for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1, contributed greater than five percent (5.0%) of the Borrower’s (i) Consolidated EBITDA for such period or (ii) Consolidated Total Assets as of the end of such period or (y) has been designated pursuant to Section 7.9(e). For the avoidance of doubt, the Canadian Borrower shall be considered a Material Foreign Subsidiary.
“Material Subsidiary”: each Material Domestic Subsidiary and each Material Foreign Subsidiary.
“Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any substances, materials or wastes, defined, listed or regulated as hazardous or toxic under any Environmental Law, including polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants, contaminants, radioactive materials, and any other substances that are regulated pursuant to or could give rise to liability under any Environmental Law.
“MFN Adjustment”: as defined in Section 4.17(c).
“Modification”: a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent.
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“Moody’s”: Xxxxx’x Investors Service, Inc. and any affiliate thereof and any successor thereto that is a nationally-recognized rating agency.
“Mortgaged Properties”: the owned real properties listed on Schedule 1.1(a), as to which the Administrative Agent for the benefit of the Secured Parties shall be granted a Lien pursuant to the Mortgages.
“Mortgages”:
each of the mortgages, deeds to secure debts and deeds of trust made by any Loan Party in favor of, or for the benefit of, the Administrative
Agent for the benefit of the Secured Parties, either (a) substantially
in the form of Exhibit D (with such changes thereto as (ai)
shall be advisable under the law of the jurisdiction in which such mortgage, deed to secure debt or deed of trust is to be recorded and
(bii)
do not have a significant adverse economic effect on any Loan Party (as determined in good faith by the Borrower in consultation with
the Administrative Agent)), as amended, restated, modified, supplemented or extended from time to
time or (b) any Deed of Hypothec charging real property
owned by any Loan Party.
“Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA and that is subject to ERISA.
“Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or by the Disposition of any non-cash consideration received in connection therewith or otherwise, but only as and when received, and Cash Equivalents at their maturity) of such Asset Sale or Recovery Event, net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other reasonable fees and expenses actually incurred in connection therewith and net of taxes paid, payable or reasonably estimated to be payable as a result thereof and (b) in connection with any issuance or sale of Capital Stock or any Incurrence of Indebtedness, the cash proceeds received from such issuance or Incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other reasonable fees and expenses actually incurred in connection therewith; provided, that amounts provided as a reserve, in accordance with GAAP, against any liability under any indemnification obligations or purchase price adjustment associated with any of the foregoing shall not constitute Net Cash Proceeds except to the extent and at the time any such amounts are released from such reserve.
“Non-Consenting Lender”: as defined in Section 4.13(a).
“Non-Defaulting Lender”: any Lender other than a Defaulting Lender.
“Non-Extending Lender”: as defined in Section 4.18(e).
“Non-public Information”: information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD of the Securities Act.
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“Non-U.S. Lender”: as defined in Section 4.10(e).
“Notes”: the collective reference to any promissory note evidencing Loans.
“NYFRB”: the Federal Reserve Bank of New York.
“NYFRB Rate”: for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“NYFRB’s Website”:
the website of the NYFRB at http://wwwhttp://xxx.xxxxxxxxxx.xxx,
or any successor source.
“Obligations”: the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower, the Canadian Borrower or any Subsidiary (solely with respect to any Specified Hedge Agreement or Specified Cash Management Arrangement) to the Administrative Agent or to any Lender (or, in the case of Specified Hedge Agreements or Specified Cash Management Arrangements, any Qualified Counterparty), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter Incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Hedge Agreement, any Specified Cash Management Arrangements or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses, overdraft charges (including all reasonable fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Applicable Borrower pursuant hereto) or otherwise; provided, that (i) obligations of the Borrower, the Canadian Borrower or any Subsidiary under any Specified Hedge Agreement or Specified Cash Management Arrangement shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or the Borrower, the Canadian Borrower or the Subsidiary Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements or Specified Cash Management Arrangements. Notwithstanding the foregoing, the Obligations shall not include any Excluded Swap Obligations.
“Organizational Documents”: as to any Person, its certificate or articles of incorporation and by-laws if a corporation, its partnership agreement if a partnership, its limited liability company agreement if a limited liability company, or other organizational or governing documents of such Person.
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“Other Applicable Indebtedness”: Indebtedness permitted hereunder that is secured on a pari passu basis with the Obligations.
“Other Connection Taxes”: with respect to the Administrative Agent or any Lender, Taxes imposed as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising from the Administrative Agent or such Lender having executed, delivered, become a party to, performed its obligations under, received a payment under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced, this Agreement or any other Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Currency”: as defined in Section 11.25.
“Other Representatives”: the Lead Arranger, the Joint Bookrunners and the Documentation Agents.
“Other Taxes”: any and all present or future stamp, court or documentary, intangible, recording or filing taxes or any other excise taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except for any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 4.13).
“Overnight Bank Funding Rate”: for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).
“Overnight Rate” for any day, (a) with respect to any amount denominated in Dollars, the NYFRB Rate and (b) with respect to any amount denominated in Canadian Dollars, an overnight rate determined by the Administrative Agent or the Issuing Lenders, as the case may be, in accordance with banking industry rules on interbank compensation.
“Pari Debt Intercreditor Agreement”: an intercreditor agreement, substantially in the form of Exhibit K-2 hereto or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
“Participant”: as defined in Section 11.6(c)(i).
“Participant Register”: as defined in Section 11.6(c)(iii).
“Patriot Act”: as defined in Section 11.18.
“Payment”: as defined in Section 10.16(a).
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“Payment Notice”: as defined in Section 10.16(b).
“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
“Periodic Term XXXXX Determination Day”: has the meaning assigned to such term in the definition of “Term XXXXX”.
“Permitted Acquisition”: any acquisition by purchase or otherwise of all or substantially all of the business, assets or at least a majority of the Capital Stock (other than directors’ qualifying shares) of any Person or a business unit of a Person so long as, subject to Section 1.3, (a) no Event of Default has occurred and is continuing at the time such acquisition is made and no Event of Default would result from the completion of such acquisition, (b) on a pro forma basis after giving effect to such acquisition, all related transactions (including the Incurrence and use of proceeds of all Indebtedness Incurred in connection therewith) and all other acquisitions and dispositions and related transactions at any time completed as if completed on the first day of the twelve (12)-month period ending on the most recent Test Date, (i) the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) and (ii) the Consolidated Net Leverage Ratio on the Test Date would not have exceeded 5.50:1.00 and (c) if the aggregate consideration for such acquisition is more than $25,000,000, the Borrower delivers to the Administrative Agent a certificate of a Responsible Officer demonstrating in reasonable detail that the pro forma tests in clause (b) above are satisfied.
“Permitted Encumbrances”: has the meaning specified in the Mortgages.
“Permitted Foreign Entities”: any First Tier Foreign Subsidiary which is a Restricted Subsidiary.
“Permitted Foreign Investment”: an Investment made by the Borrower or another Loan Party to any Permitted Foreign Entity or any other Wholly Owned Foreign Subsidiary after the Closing Date; provided that, the proceeds of such Investment are used by such Permitted Foreign Entity or Wholly Owned Foreign Subsidiary, as applicable, solely to directly, or indirectly through any Foreign Subsidiary of such Permitted Foreign Entity or Wholly Owned Foreign Subsidiary, finance a Permitted Acquisition.
“Permitted Junior Refinancing
Debt”: secured Indebtedness Incurred by the Borrower or any other Loan Party in the form of one or more series of junior lien
secured notes or junior lien loans; provided, that (i) such Indebtedness is secured by the Collateral on a junior priority basis
to the Obligations hereunder and the obligations in respect of any Permitted Pari Passu Refinancing Debt and is not secured by any property
or assets of the Borrower or any Restricted Subsidiary of the Borrower other than the Collateral, (ii) such Indebtedness constitutes Credit
Agreement Refinancing Indebtedness in respect of Term Loans, Incremental Loans, Refinancing Term Loans, outstanding Revolving Facility
Loans or outstanding Refinancing Revolving Facility Loans,
(iii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is the Latest Maturity
Date at the time such Indebtedness is Incurred, (iv) the security agreements relating to such Indebtedness are substantially the same
as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (v) such Indebtedness is
not (x) guaranteed by (A) any Person other than the Loan Parties
or (B) any Person that was not a borrower or guarantor in respect of the
Indebtedness being refinanced thereby unless, after giving effect to such Permitted Junior Refinancing Indebtedness, all remaining Secured
Obligations are guaranteed by such Person or (y) secured by (A)
any assets other than the Collateral, or
(B) any assets that did not secure the Indebtedness being refinanced thereby unless, after giving effect to such Permitted Junior Refinancing
Indebtedness, all remaining Secured Obligations are secured thereby, (vi) a Senior Representative validly acting on behalf
of the holders of such Indebtedness shall have become party to an Intercreditor Agreement or, if an Intercreditor Agreement has previously
been entered into in connection with any other Permitted Pari Passu Refinancing Debt, execute a joinder to the then existing Intercreditor
Agreement in substantially the form provided in the Intercreditor Agreement and (vii) such Indebtedness may be incurred in the form of
a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other interim credit
facility shall be deemed to satisfy clause (iii) of this definition so long as (x) such credit facility includes customary “rollover”
provisions and (y) assuming such bridge or other interim credit facility were to be extended pursuant to such “rollover”
provisions, such extended credit facility would comply with clause (iii) above) and in which case, on or prior to the first anniversary
of the incurrence of such “bridge” or other interim credit facility, nothing
in this definition shall prohibit the inclusion of customary terms for “bridge”
facilities, including customary mandatory prepayment, repurchase or redemption provisions. Permitted Junior Refinancing Debt will include
any Registered Equivalent Notes issued in exchange therefor.
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“Permitted Liens”: any Liens permitted by Section 8.3.
“Permitted Pari Passu
Refinancing Debt”: any secured Indebtedness Incurred by the Borrower or any other Loan Party in the form of one or more series
of senior secured notes; provided, that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard
to the control of remedies) with the Obligations hereunder and is not secured by any property or assets of the Borrower or any Restricted
Subsidiary other than the Collateral, (ii) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term
Loans, Incremental Loans, Refinancing Term Loans, outstanding Revolving Facility
Loans or outstanding Refinancing Revolving Facility Loans,
(iii) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is the Latest Maturity
Date at the time such Indebtedness is Incurred, (iv) the security agreements relating to such Indebtedness are substantially the same
as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (v) such Indebtedness is
not (x) guaranteed by (A) any Person other than the Loan Parties
and (y) is not secured byor
(B) any Person that was not a borrower or guarantor in respect of the Indebtedness being refinanced thereby unless, after giving effect
to such Permitted Pari Passu Refinancing Indebtedness, all remaining Secured Obligations are guaranteed by such Person or (y) secured
by (A) any assets other than the Collateral, or
(B) any assets that did not secure the Indebtedness being refinanced thereby unless, after giving effect to such Permitted Pari Passu
Refinancing Indebtedness, all remaining Secured Obligations are secured thereby, (vi) a Senior Representative validly acting
on behalf of the holders of such Indebtedness shall have become party to an Intercreditor Agreement or, if an Intercreditor Agreement
has previously been entered into in connection with any other Permitted Pari Passu Refinancing Debt, execute a joinder to the then existing
Intercreditor Agreement in substantially the form provided in the Intercreditor Agreement and (vii) such Indebtedness may be incurred
in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such bridge or other
interim credit facility shall be deemed to satisfy clause (iii) of this definition so long as (x) such credit facility includes customary
“rollover” provisions and (y) assuming such bridge or other interim credit
facility were to be extended pursuant to such “rollover” provisions, such
extended credit facility would comply with clause (iii) above) and in which case, on or prior to the first anniversary of the incurrence
of such “bridge” or other interim credit facility, nothing in this definition
shall prohibit the inclusion of customary terms for “bridge” facilities, including
customary mandatory prepayment, repurchase or redemption provisions. Permitted Pari Passu Refinancing Debt will include any Registered
Equivalent Notes issued in exchange therefor.
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“Permitted Refinancing”: with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided, that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole and (d) if the Indebtedness being modified, refinanced, refunded, renewed or extended is secured by a Lien that is junior to the Lien securing the Obligations, such modification, refinancing, refunding, renewal or extension, if secured, is secured by a Lien that is junior to the Lien securing the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, taken as a whole.
“Permitted Securitization”: the Existing Securitization or any other Securitization that complies with the following criteria: (a) the cash portion of the initial purchase price paid by the Securitization Subsidiary at closing for the Securitization Assets is at least 70% of the book value of the Securitization Assets at such time and (b) the Seller’s Retained Interest and all proceeds thereof shall constitute Collateral hereunder if the seller is a Loan Party and in such event all necessary steps to perfect a security interest in such Seller’s Retained Interest by the Administrative Agent are taken by the Group Members.
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“Permitted Unsecured
Refinancing Debt”: unsecured Indebtedness Incurred by the Borrower,
the Canadian Borrower or any Subsidiary Guarantor in the form of one or more series of senior or subordinated unsecured notes
or loans; provided that (i) such Indebtedness constitutes Credit Agreement Refinancing Indebtedness in respect of Term Loans, Incremental
Loans, Refinancing Term Loans, outstanding Revolving Facility Loans
or outstanding Refinancing Revolving Facility Loans, (ii) such
Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is the Latest Maturity Date
at the time such Indebtedness is Incurred, (iii) such Indebtedness is not guaranteed by (A)
any Restricted Subsidiaries other than the Subsidiary Guarantors,Loan
Parties or (B) any Person that was not a borrower or guarantor in respect of the Indebtedness being refinanced thereby unless, after giving
effect to such Permitted Unsecured Refinancing Debt, all remaining Secured Obligations are guaranteed by such Person, (iv)
such Indebtedness is not secured by any Lien on any property or assets of Borrower or any Restricted Subsidiary and (v) such Indebtedness
may be incurred in the form of a bridge or other interim credit facility intended to be refinanced with long-term indebtedness (and such
bridge or other interim credit facility shall be deemed to satisfy clause (ii) of this definition so long as (x) such credit facility
includes customary “rollover” provisions and (y) assuming such bridge or other
interim credit facility were to be extended pursuant to such “rollover” provisions,
such extended credit facility would comply with clause (ii) above) and in which case, on or prior to the first anniversary of the incurrence
of such “bridge” or other interim credit facility, nothing in this definition
shall prohibit the inclusion of customary terms for “bridge” facilities, including
customary mandatory prepayment, repurchase or redemption provision. Permitted Unsecured Refinancing Debt will include any Registered Equivalent
Notes issued in exchange therefor.
“Person”: an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
“Plan”: at a particular time, any employee defined benefit pension plan that is covered by, and subject to, Title IV of ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform”: as defined in Section 7.2(f).
“Pledged Stock”: as defined in the Guarantee and Collateral Agreement.
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“Pricing Grid”:
(a) with respect to Closing Date Revolving Facility Loans and Closing Date Revolving Facility Swingline Loans, the Applicable Margin shall be (x) initially, 2.25% per annum in the case of any Term Benchmark Loans and RFR Loans and 1.25% per annum in the case of any Base Rate Loans and (y) from and after the third (3rd) Business Day following the delivery by the Borrower to the Administrative Agent of the financial statements and certificates required to be delivered pursuant to Section 7.1(a)(i) or 7.1(a)(ii) and Section 7.2(a), respectively (such date, the “Adjustment Date”), determined by reference to the following percentages per annum, as applicable:
| Category | Consolidated Senior Secured Net Leverage Ratio |
Applicable Margin for Base Rate Loans |
Applicable Margin for Term Benchmark/RFR Loans |
|||||||
| 1 | > 2.25:1.00 | 1.75 | % | 2.75 | % | |||||
| 2 | < 2.25:1.00 and > 1.50:1.00 | 1.50 | % | 2.50 | % | |||||
| 3 | < 1.50:1.00 | 1.25 | % | 2.25 | % | |||||
(b) with respect to the 2024 Canadian Revolving Facility Loans and 2024 Canadian Revolving Facility Swingline Loans, the Applicable Margin shall be (x) initially, (i) 2.50% per annum in the case of any Term XXXXX Loans and Daily Simple XXXXX Loans and (ii) 1.50% per annum in the case of any Canadian Prime Rate Loans, and (y) from and after the Adjustment Date, determined by reference to the following percentages per annum, as applicable:
| Category | Consolidated Senior Secured Net Leverage Ratio | Applicable Margin for Canadian Prime Rate Loans | Applicable Margin for Term XXXXX/Daily Simple XXXXX Loans | |||||||
| 1 | > 2.25:1.00 | 2.00 | % | 3.00 | % | |||||
| 2 | < 2.25:1.00 and > 1.50:1.00 | 1.75 | % | 2.75 | % | |||||
| 3 | < 1.50:1.00 | 1.50 | % | 2.50 | % | |||||
(c)
(b) with respect to Term Loans, the Applicable Margin for Term Benchmark
Loans and RFR Loans shall be a percentage per annum agreed by the Borrower and the Lenders thereof and the Applicable Margin for Base
Rate Loans shall be a percentage per annum agreed by the Borrower and the Lenders thereof; and
(d)
(c) the Commitment Fee Rate shall be (x) initially, 0.25% per annum
and (y) from and after the Adjustment Date, determined by reference to the following percentages per annum:
| Category | Consolidated Senior Secured Net Leverage Ratio | Commitment Fee Rate | ||||
| 1 | > 2.25:1.00 | 0.35 | % | |||
| 2 | < 2.25:1.00 and > 1.50:1.00 | 0.30 | % | |||
| 3 | < 1.50:1.00 | 0.25 | % | |||
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“Prime Rate”: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).
“Projections”: as defined in Section 7.2(b).
“Properties”: as defined in Section 5.17(a).
“Property”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including Capital Stock.
“PPSA”: the Personal Property Security Act (Ontario) (and other equivalent personal property security legislation in any other applicable Canadian province or territory) and the regulations thereunder, as from time to time in effect; provided that, if attachment, validity, perfection, the effect of perfection or non-perfection, opposability or priority of the Administrative Agent’s security interest in any Collateral is governed by the personal property security laws of any jurisdiction in Canada other than Ontario with respect to such Collateral, “PPSA” shall mean those personal property security laws in such other jurisdiction of Canada or the Civil Code, as applicable, for the purposes of the provisions hereof relating to such attachment, validity, perfection, the effect of perfection or non-perfection, opposability or priority and for the definitions related to such provisions.
“PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“PTO”: as defined in Section 5.19(c).
“Purchase”: as defined in Section 1.3(c)(iv).
“QFC”: as defined in Section 11.24(b).
“QFC Credit Support”: as defined in Section 11.24.
“Qualified Counterparty”: with respect to any Specified Hedge Agreement or Specified Cash Management Arrangement, any counterparty thereto that, (i) at or before the time such Specified Hedge Agreement or Specified Cash Management Arrangement was entered into or (ii) on or after the Closing Date, was a Lender or the Administrative Agent or an affiliate of a Lender.
“Ratio Incremental Amount”: as defined in the definition of “Incremental Amount.”
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“Recovery Event”: any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of any Group Member, other than (x) any such settlement or payment arising by reason of any loss of revenues or interruption of business or operations caused thereby and (y) any such settlement or payment constituting reimbursement or compensation for amounts previously paid by any Group Member in respect of the theft, loss, destruction, damage or other similar event relating to any such claim or proceeding.
“Reference Period”: as defined in Section 1.3(d).
“Reference Time”:
with respect to any setting of the then-current Benchmark means (1i)
if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two (2) U.S. Government Securities Business Days
preceding the date of such setting or,
(2ii)
if such Benchmark is Daily Simple SOFR, then four (4) Business Days prior to such setting,
(iii) if such Benchmark is the Adjusted Term XXXXX Rate, 1:00 p.m. Toronto local time on the day that is two (2) Business Day preceding
the date of such setting, (iv) if, following a Benchmark Transition Event and Benchmark Replacement Date with respect to Term XXXXX, the
RFR for such Benchmark is Daily Simple XXXXX, then four (4) RFR Business Days prior to such setting, or (3v)
if such Benchmark is none of the Term SOFR Rate or,
Daily Simple SOFR, Daily Simple XXXXX or the Adjusted Term XXXXX Rate,
the time determined by the Administrative Agent in its reasonable discretion.
“Refinanced Debt”: as defined in the definition of “Credit Agreement Refinancing Indebtedness.”
“Refinancing Amendment”: an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and the Applicable Borrower executed by each of (a) the Applicable Borrower, (b) the Administrative Agent and (c) each Additional Lender and Lender that agrees to provide any portion of the Credit Agreement Refinancing Indebtedness being Incurred pursuant thereto, in accordance with Section 4.19.
“Refinancing 2024 Canadian Revolving Facility Commitments”: any Refinancing Revolving Facility Commitments with respect to the 2024 Canadian Revolving Facility.
“Refinancing 2024 Canadian Revolving Facility Loan”: any Refinancing Revolving Facility Loan with respect to the Refinancing 2024 Canadian Revolving Facility Commitments.
“Refinancing Closing Date Revolving Facility Commitments”: any Refinancing Revolving Facility Commitments with respect to the Closing Date Revolving Facility.
“Refinancing Closing Date Revolving Facility Loan”: any Refinancing Revolving Facility Loan with respect to the Refinancing Closing Date Revolving Facility Commitments.
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“Refinancing Revolving Facility Commitments”: the revolving credit commitments hereunder that result from a Refinancing Amendment.
“Refinancing Revolving Facility Loans”: the Revolving Facility Loans made pursuant to any Refinancing Revolving Facility Commitment.
“Refinancing Term Commitments”: one or more Tranches of term loan commitments hereunder that result from a Refinancing Amendment.
“Refinancing Term Loans”: one or more Tranches of Term Loans that result from a Refinancing Amendment.
“Register”: as defined in Section 11.6(b)(iv).
“Registered Equivalent Notes”: with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same Guarantee Obligation) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC.
“Regulation T”: Regulation T of the Federal Reserve Board as in effect from time to time.
“Regulation U”: Regulation U of the Federal Reserve Board as in effect from time to time.
“Regulation X”: Regulation X of the Federal Reserve Board as in effect from time to time.
“Reimbursement Obligation”: the obligation of the Applicable Borrower to reimburse each Issuing Lender pursuant to Section 3.11 for amounts drawn under Letters of Credit.
“Reinvestment Deferred Amount”: with respect to any Reinvestment Event, an amount equal to the aggregate Net Cash Proceeds received by any Group Member in connection therewith that would have otherwise been required to be applied to prepay the Term Loans pursuant to Section 4.2(b)(i) but for the delivery of the Reinvestment Notice.
“Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice.
“Reinvestment Notice”: a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Restricted Subsidiary) intends to use an amount equal to all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire, improve, maintain or repair fixed or capital assets useful in its business, to acquire a brand or trademark and related assets or to complete a Permitted Acquisition.
“Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire, improve, maintain or repair fixed or capital assets useful in the Borrower’s business, to acquire a brand or trademark and related assets or to complete a Permitted Acquisition.
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“Reinvestment Prepayment Date”: with respect to any Reinvestment Event the date occurring eighteen (18) months after the receipt by the Borrower of proceeds relating to such Reinvestment Event (or the 180th day thereafter if the Borrower or any of its Restricted Subsidiaries has entered into a legally binding commitment to apply such proceeds in accordance with the applicable Reinvestment Notice).
“Related Persons”: with respect to any specified Person, such Person’s Affiliates and the respective officers, directors, employees, attorneys, agents and advisors of such Person and such Person’s Affiliates.
“Relevant Governmental
Body”: (i) with respect to a Benchmark Replacement in respect
of Loans, Commitments or Letters of Credit denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee
officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.,
and (ii) with respect to a Benchmark Replacement in respect of Loans, Commitments or Letters of Credit denominated in Canadian Dollars,
the Bank of Canada, or a committee officially endorsed or convened by the Bank of Canada or, in each case, any successor thereto.
“Relevant Screen Rate”: (i) with respect to any Term Benchmark Borrowing denominated in Dollars, the Term SOFR Reference Rate, or (ii) with respect to any Term Benchmark Borrowing denominated in Canadian Dollars, the Term XXXXX Reference Rate, as applicable.
“Reportable Event”: any of the events set forth in Section 4043(b) of ERISA, other than those events as to which the thirty day notice requirement is waived by regulation in effect as of the date hereof.
“Repricing Transaction”: (i) prepayment or refinancing of all or a portion of the Term Loans concurrently with the Incurrence by the Borrower of any long-term bank debt financing or any other financing similar to the Term Loans, in each case, with the primary purpose of lowering the All-In Yield applicable to the Term Loans and (ii) any amendment which reduces the All-In Yield applicable to the Term Loans; provided that “Repricing Transaction” shall not include (x) any Transformative Acquisition or (y) a transaction that results in a Change of Control.
“Required Lenders”: at any time, the holders of more than 50% of the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding and (ii) the Revolving Facility Commitments then in effect or, if the Revolving Facility Commitments have been terminated, the Revolving Facility Extensions of Credit then outstanding. The Loans and Commitments of any Defaulting Lender shall be disregarded in determining Required Lenders at any time. The Loans and Commitments of any Affiliated Lender shall, for purposes of this definition, be subject to Section 11.21.
“Requirement of Law”: as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
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“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”: with respect to any Person, the chief executive officer, president, vice president, chief financial officer, corporate secretary or assistant secretary, manager, director or duly appointed attorney-in-fact or similar Person or any other person designated by the board of directors or managing officers or other appropriate governing body of such Person, as applicable, in a resolution.
“Restricted Payments”: as defined in Section 8.6.
“Restricted Subsidiary”: any Subsidiary of the Borrower other than an Unrestricted Subsidiary. The Borrower may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately prior and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing.
“Revolving
Commitment”: as to any Lender, the obligation of such Lender, if any, to make Revolving Loans and participate
in Swingline Loans and Letters of Credit in an aggregate principal and/or face
amount not to exceed (a) in the case of Lenders party hereto as of the Closing Date, such Xxxxxx’s
Revolving Commitment Allocation and (b) in the case of Lenders that become parties hereto after
the Closing Date, the amount set forth in the Assignment and Assumption by which such Lender became a party hereto, in each case, as the
same may be changed from time to time pursuant to the terms hereof. The amount of the Total Revolving
Commitments as of the Closing Date is $325,000,000.
“Revaluation Date”: (a) with respect to any Loan denominated in Canadian Dollars, each of the following: (i) the date of the Borrowing of such Loan and (ii) (A) with respect to any Term Benchmark Loan, each date of a conversion into or continuation of such Loan pursuant to the terms of this Agreement and (B) with respect to any RFR Loan, each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month); (b) with respect to any Letter of Credit denominated in Canadian Dollars, each of the following: (i) the date on which such Letter of Credit is issued, (ii) the first Business Day of each calendar month and (iii) the date of any amendment of such Letter of Credit that has the effect of increasing the face amount thereof; and (c) any additional date as the Administrative Agent may determine in accordance with the Administrative Agent’s standard practices at any time when an Event of Default exists.
“Revolving Facilities”: (a) the Closing Date Revolving Facility and (b) the 2024 Canadian Revolving Facility.
“Revolving Commitment
Allocation”: as ofFacility
Commitments”: (i) the Closing Date, the Revolving Facility
Commitments of each Lender as set forth on Schedule 3.1and
(ii) the 2024 Canadian Revolving Facility Commitments.
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“Revolving Facility
Commitment Period”: the period from and including the
Closing Date up to but excluding the Business Day preceding the Revolving Termination
Date.Allocation”: (i) the Closing Date Revolving
Facility Commitment Allocation and (ii) the 2024 Canadian Revolving Facility Commitment Allocation.
“Revolving Facility
Extensions of Credit”: as to any Revolving Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving
Loans held by such Lender then outstanding, (b) such Lender’s Revolving Percentage of the
L/C Obligations then outstanding and (c) such Lender’s Revolving Percentage of the aggregate
principal amount of Swingline Loans then outstanding(i)
the Closing Date Revolving Facility Extensions of Credit and (ii) the 2024 Canadian Revolving Facility Extensions of Credit.
“Revolving
Facility”: means the Revolving Commitments and the extensions of credit made thereunder.
“Revolving Facility
Lender”: (i) each Lender
that has aClosing Date Revolving Commitment
or that holdsFacility Lender and (ii) each 2024 Canadian
Revolving LoansFacility
Lender.
“Revolving
Loans”: means a Loan made pursuant to clause (b) of Section 3.1, an Incremental Revolving Loan or any Extended
Loan, as the context may require.
“Revolving Facility Loans”: any 2024 Canadian Revolving Facility Loans, Closing Date Revolving Facility Loans, Incremental Revolving Facility Loans, Refinancing Revolving Facility Loans or any Extended Loans in respect of the foregoing, in each case, as the context may require.
“Revolving Facility Percentage”: as to any Revolving Facility Lender at any time, the percentage which such Xxxxxx’s Revolving Facility Commitment then constitutes of the Total Revolving Facility Commitments (or, at any time after the Revolving Facility Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Revolving Facility Loans then outstanding constitutes of the aggregate principal amount of the Revolving Facility Loans then outstanding).
“Revolving Facility
Termination Date”: the earlier of (a) the fifth (5th) anniversary of the Closing
Date and (b) the date on which the Revolving Commitments are terminated pursuant
to any provision of this Agreement(a) with respect
to the Closing Date Revolving Facility, the Closing Date Revolving Facility Termination Date and (b) with respect to the 2024 Canadian
Revolving Facility, the 2024 Canadian Revolving Facility Termination Date.
“RFR”: for any RFR Loan denominated in (a) Dollars, Daily Simple SOFR and (b) Canadian Dollars, Daily Simple XXXXX.
“RFR Loan”:
a Loan that bears interest at a rate based on Adjusted Daily Simple SOFRRFR.
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“RFR Business Day”: for any Loan denominated in (a) Dollars, a U.S. Government Securities Business Day and (b) Canadian Dollars, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which commercial banks in Toronto are authorized or required by law to remain closed.
“S&P”: Standard & Poor’s Ratings Services and any affiliate thereof and any successor thereto that is a nationally-recognized rating agency.
“Sale”: as defined in Section 1.3(c)(iii).
“Sanctioned Country”: at any time, a country or territory which is the subject or target of comprehensive Sanctions (as of the Closing Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Cuba, the Crimea region of Ukraine, Iran, North Korea, Syria and non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine).
“Sanctioned
Person”: at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the U.S.
government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department
of State, byGlobal
Affairs Canada, the Department of Public Safety and Emergency Preparedness, or any other agency or department of the Government
of Canada or by the United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom or any EU
member state, (b) any Person organized, resident or located in a Sanctioned Country or (c) any Person owned 50% or more or controlled
by any such Person.
“Sanctions”:
economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including
those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b)
theGlobal Affairs
Canada, the Department of Public Safety and Emergency Preparedness, or any other agency or department of the Government of
Canada or (c) the United Nations Security Council, the European Union or His Majesty’s Treasury of the United Kingdom.
“SEC”: the Securities and Exchange Commission, any successor thereto and otherwise any analogous Governmental Authority.
“Secured Obligations”:
as defined in the Guarantee and Collateral Agreementthe
U.S. Secured Obligations and the Canadian Secured Obligations.
“Secured Parties”: as defined in the Guarantee and Collateral Agreement.
“Securities Act”: the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securitization”: any transaction or series of transactions entered into by any Group Member pursuant to which such Group Member sells, conveys, assigns, grants an interest in or otherwise transfers to a Securitization Subsidiary, Securitization Assets (and/or grants a security interest in such Securitization Assets transferred or purported to be transferred to such Securitization Subsidiary), and which Securitization Subsidiary finances the acquisition of such Securitization Assets (i) with cash, (ii) the issuance to such Group Member of Seller’s Retained Interests or an increase in such Seller’s Retained Interests, (iii) with proceeds from the sale or collection of Securitization Assets, or (iv) with proceeds from the sale or issuance of Securitization Asset backed securities or other interests therein.
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“Securitization Assets”: the collective reference to (i) Dollar-denominated finance receivables of AFC and/or AFC Cal, LLC transferred, assigned, sold or conveyed to a Securitization Subsidiary, and (ii) Canadian Dollar-denominated finance receivables (or co-ownership interest in finance receivables pool(s)) of AFCI transferred, assigned, sold or conveyed to a Securitization Subsidiary.
“Securitization Subsidiary”: a Person (including, with respect to any Canadian Securitization, any charitable or business trust) to which a Group Member sells, conveys, transfers or grants a security interest in Securitization Assets, and which Person is formed (or, in the case of any charitable or business trust, the applicable co-ownership interest, series or other comparable tranche of such trust is designated or otherwise credited) for the limited purpose of effecting one or more securitizations involving the Securitization Assets or other income producing financial assets, and related activities; provided that, as of the First Amendment Effective Date, Automotive Finance Canada Inc. constitutes a Securitization Subsidiary.
“Security Documents”: the collective reference to the Guarantee and Collateral Agreement, the Intellectual Property Security Agreements, Modifications (if any), the Mortgages (if any), and all other security documents hereafter delivered to the Administrative Agent granting a Lien on any property of any Person to secure the obligations and liabilities of any Loan Party under any Loan Document.
“Seller’s Retained Interest”: (i) in respect of a Securitization, the debt or equity interests held by Group Members in a Securitization Subsidiary to which Securitization Assets have been transferred, including any such debt or equity received as consideration for or as a portion of the purchase price for the Securitization Assets transferred, or any other instrument through which any Group Member has rights to or receives distributions in respect of any residual or excess interest in the Securitization Assets, and (ii) in respect of a Canadian Securitization, all amounts which are payable or which may become payable as consideration for or as a portion of the purchase price for the Securitization Assets transferred, including any such amounts which any Group Member receives or has rights to receive as distributions in respect of any residual or excess interest in the Securitization Assets.
“Senior Notes”: the 5.125% senior notes due 2025 issued by the Borrower pursuant to the Senior Notes Indenture.
“Senior Notes Indenture”: the Indenture, dated as of May 31, 2017, by and among the Borrower, the guarantors from time to time party thereto and U.S. Bank National Association, as trustee.
“Senior Representative”: with respect to any series of Permitted Pari Passu Refinancing Debt or Permitted Junior Refinancing Debt, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, Incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
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“Single Employer Plan”: any Plan that is covered by Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, and that is subject to ERISA and/or the Code, but that is not a Multiemployer Plan.
“SOFR”: a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator”: the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s
Website”: the NYFRB’s website, currently at xxxx://xx
xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR
Administrator from time to time.
“SOFR Determination Date”: has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Rate Day”: has the meaning specified in the definition of “Daily Simple SOFR”.
“Solvency Certificate”: a solvency certificate, substantially in the form of Exhibit I hereto or such other form that is reasonably acceptable to the Administrative Agent.
“Solvent”:
with respect to any Person, as of any date of determination, (a) the amount of the present fair saleable value of the assets of such Person
will exceed the amount of all liabilities of such Person, contingent or otherwise, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as
such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which
to conduct its business, and (d) such Person does not intend to incur, or believe
that it will incur, debts beyond its ability to pay such debts as they mature and
(e) with respect to a Person that is a Canadian Loan Party, such Person is not an Insolvent Person (as defined in the Bankruptcy and Insolvency
Act (Canada)). For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim”
means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance
if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent,
matured or unmatured, disputed, undisputed, secured or unsecured.
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“Specified Cash Management
Arrangement”: any arrangement for treasury, depositary or cash management services (including any credit card, commercial card,
merchant card or other stored value card services and any processing of payments and other administrative services with respect thereto)
provided to the Borrower or any of its Subsidiaries by a Qualified Counterparty in connection with any transfer or disbursement of funds
through an automated clearinghouse or on a same day or immediate or accelerated availability basis that has been designated as a Specified
Cash Management Arrangement by notice from the Borrower to the Administrative Agent. The designation by the Borrower of any such arrangement
as a Specified Cash Management Arrangement shall not create in favor of the Qualified Counterparty that is a party thereto any rights
in connection with the management, enforcement or release of any Collateral or of the Obligations of the Borrower or any Subsidiary
Guarantorother Loan Party under the Guarantee
and Collateral Agreement. All treasury, depository and cash management services (including any credit card, commercial card, merchant
card or other stored value card services and any processing of payments and other administrative services with respect thereto) now or
at any time hereafter provided to the Borrower or any of its Subsidiaries by JPMorgan Chase Bank, N.A. in connection with any transfer
or disbursement of funds through any automated clearinghouse or on a same day or immediate or accelerated availability basis are hereby
designated by the Borrower as a Specified Cash Management Arrangement.
“Specified Existing Tranche”: as defined in Section 4.18(a).
“Specified Hedge Agreement”:
any Hedge Agreement between the Borrower or any of its Subsidiaries and any Qualified Counterparty that has been designated as a Specified
Hedge Agreement by notice from the Borrower to the Administrative Agent (it being understood that one notice with respect to a specified
ISDA Master Agreement may designate all transactions thereunder as being “Obligations” under a Specified Hedge Agreement,
without the need for separate notices for each individual transaction thereunder). The designation by the Borrower of any Hedge Agreement
as a Specified Hedge Agreement (a) shall constitute a representation and warranty by the Borrower that such Hedge Agreement is permitted
by Section 8.11 (upon which such Qualified Counterparty shall be entitled to rely conclusively) and (b) shall not create in favor of the
Qualified Counterparty that is a party thereto any rights in connection with the management, enforcement or release of any Collateral
or of the Obligations of the Borrower or any Subsidiary Guarantorother
Loan Party under the Guarantee and Collateral Agreement except to the extent expressly set forth in the Guarantee and Collateral
Agreement.
“Standard Securitization Undertakings”: representations, warranties, covenants, repurchase obligations and indemnities entered into by a Group Member which are customary for a seller or servicer of assets transferred in connection with a Securitization.
“Subsidiary”: as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower; provided, however, all such references to “Subsidiary” or to “Subsidiaries” shall not include any Securitization Subsidiary.
“Subsidiary Guarantor”:
each Restricted(a)
with respect to the U.S. Secured Obligations, each Domestic Subsidiary that has becomeis
or from time to time becomes party to the U.S. Guarantee
and Collateral Agreement, in each case, unless such Person has been released
from its obligations thereunder in accordance with the terms hereof or thereof and (b) with respect to the Canadian Secured Obligations,
each Person identified in clause (a) above and each Canadian Subsidiary that is or from time to time becomes
party to the Canadian Guarantee and Collateral Agreement, in each case, unless such Person has been released from its obligations
thereunder in accordance with the terms hereof or thereof.
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“Supported QFC”: as defined in Section 11.24.
“Swingline Commitment”:
$60,000,000as
applicable, the Closing Date Revolving Facility Swingline Commitment and the 2024 Canadian Revolving Facility Swingline Commitment.
“Swingline Exposure”:
at any time the aggregate principal amount at such time of all outstanding Swingline
Loans. The(a) with respect to the Closing Date Revolving
Facility Swingline Loans, at any time, the Closing Date Revolving Facility Swingline Exposure of
any, and (b) with respect to the 2024 Canadian
Revolving LenderFacility
Swingline Loans, at any time shall equal its,
the 2024 Canadian Revolving Percentage of the aggregateFacility
Swingline Exposure at such time.
“Swingline Lender”: JPMorgan Chase Bank, N.A., in its capacity as the lender of Closing Date Revolving Facility Swingline Loans and JPMorgan Chase Bank, N.A., Toronto Branch in its capacity as the lender of 2024 Canadian Revolving Facility Swingline Loans, as applicable.
“Swingline Loans”:
as defined in Section 3.3(a)(a)the
Closing Date Revolving Facility Swingline Loans and (b) the 2024 Canadian Revolving Facility Swingline Loans.
“Swingline Participation
Amount”: as defined in Section 3.4(c)(a)
the Closing Date Revolving Facility Swingline Participation Amount and (b) the 2024 Canadian Revolving Facility Swingline Participation
Amount.
“Target Person”: as defined in Section 8.7.
“Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Benchmark”:
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by reference to thefor
any Term Benchmark Loan denominated in (a) Dollars, Adjusted Term SOFR Rate and
(b) Canadian Dollars, Adjusted Term XXXXX Rate.
“Term Benchmark Loan”: a Loan that bears interest at a rate based on Term Benchmark.
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“Term XXXXX”: for any calculation with respect to any Term Benchmark Borrowing denominated in Canadian Dollars, the Term XXXXX Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term XXXXX Determination Day”) that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term XXXXX Administrator; provided, however, that if as of 1:00 p.m. (Toronto time) on any Periodic Term XXXXX Determination Day the Term XXXXX Reference Rate for the applicable tenor has not been published by the Term XXXXX Administrator and a Benchmark Replacement Date with respect to the Term XXXXX Reference Rate has not occurred, then Term XXXXX will be the Term XXXXX Reference Rate for such tenor as published by the Term XXXXX Administrator on the first preceding Business Day for which such Term XXXXX Reference Rate for such tenor was published by the Term XXXXX Administrator so long as such first preceding Business Day is not more than five (5) Business Days prior to such Periodic Term XXXXX Determination Day.
“Term XXXXX Administrator”: Candeal Benchmark Administration Services Inc., TSX Inc., or any successor administrator.
“Term XXXXX Reference Rate”: the forward-looking term rate based on XXXXX.
“Term Facility”: the Term Loans made hereunder.
“Term Lender”: each Lender that holds a Term Loan.
“Term Loan Allocation”: the principal amount of Term Loans committed to be provided by each Lender. The aggregate amount of Term Loan Allocations of all Lenders as of the Closing Date is $0.
“Term Loan Borrowing Date”: as to any Term Loan made pursuant to Section 2.2(a), the Borrowing Date of such Term Loan.
“Term Loans”: a Loan made pursuant to clause (a) of Section 2.1, an Incremental Term Loan, Refinancing Term Loan or an Extended Loan, as the context may require.
“Term Percentage”: as to any Term Lender at any time, the percentage which the aggregate principal amount of such Lender’s Term Loans then outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding.
“Term SOFR Administrator”: CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Term SOFR Determination Day”: has the meaning assigned to it under the definition of “Term SOFR Reference Rate”.
“Term SOFR Rate”: with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time, two (2) U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the Term SOFR Administrator.
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“Term SOFR Reference Rate”: for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by the Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Test Date”: at any time, the last day of the most recently ended fiscal quarter for which the Borrower’s consolidated annual or quarterly financial statements are then available.
“Third Party Assignee”: as defined in Section 11.6(b)(ii)(E).
“Total L/C Commitments”: $65,000,000.
“Total 2024 Canadian Revolving Facility Commitments”: at any time, the aggregate amount of the 2024 Canadian Revolving Facility Commitments then in effect.
“Total 2024 Canadian Revolving Facility Extensions of Credit”: at any time, the aggregate amount of the 2024 Canadian Revolving Facility Extensions of Credit outstanding at such time.
“Total Closing Date Revolving Facility Commitments”: at any time, the aggregate amount of the Closing Date Revolving Facility Commitments then in effect.
“Total Closing Date Revolving Facility Extensions of Credit”: at any time, the aggregate amount of the Closing Date Revolving Facility Extensions of Credit outstanding at such time.
“Total Revolving Facility Commitments”: (i) Total Closing Date Revolving Facility Commitments and (ii) Total 2024 Canadian Revolving Facility Commitments.
“Total Revolving Facility Extensions of Credit”: (i) the Total Closing Date Revolving Facility Extensions of Credit and (ii) the Total 2024 Canadian Revolving Facility Extensions of Credit.
“Tranche”:
each tranche of Loans and/or Commitments available hereunder. On the ClosingFirst
Amendment Effective Date, after giving effect to the borrowings thereon and the related payment of Indebtedness hereunder,
there shall be twothree
(23)
tranches comprising of (i) Term Loans and,
(ii) Closing Date Revolving Facility
Commitments and (iii) 2024 Canadian Revolving Facility Commitments.
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“Transaction Costs”: the fees, costs and expenses payable by the Borrower or any of its Restricted Subsidiaries in connection with the transactions contemplated by the Loan Documents and the Transactions.
“Transactions”: the execution, delivery and performance by the Borrower of this Agreement and by any Loan Party of each other Loan Document to which it is a party, the borrowing of Loans and the use of the proceeds thereof.
“Transferee”: any Assignee or Participant.
“Transformative Acquisition”: any acquisition or Investment by the Borrower or any Restricted Subsidiary that either (a) is not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or Investment, would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as reasonably determined by the Borrower acting in good faith.
“Type”: as
to any Loan, its nature as a Base Rate Loan, a Term Benchmark Loan or,
an RFR Loan, a Canadian Prime Rate Loan, a Term SOFR Rate Loan, a Term
XXXXX Loan, a Daily Simple SOFR Loan or a Daily Simple XXXXX Loan.
“UK Financial Institution”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement”: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Uniform Commercial Code” or “UCC”: as defined in the U.S. Guarantee and Collateral Agreement.
“United States” or “U.S.”: the United States of America.
“U.S.
Person”: any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
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“Unrestricted Cash”: cash or Cash Equivalents of the Borrower or any of its Restricted Subsidiaries that would not appear as “restricted” on a consolidated balance sheet of the Borrower in accordance with GAAP; provided that cash and Cash Equivalents that are restricted or secured (i) in favor of the Indebtedness under this Agreement shall be deemed to be Unrestricted Cash and (ii) in favor of other Indebtedness secured by a pari passu or junior Lien on the Collateral as permitted under this Agreement, shall be deemed to be Unrestricted Cash (only if such cash and Cash Equivalents are also restricted or secured in favor of the Indebtedness under this Agreement on a pari passu or senior basis to the Lien of such other Indebtedness).
“Unrestricted Subsidiary”: (i) any Subsidiary of the Borrower that at the time of determination is an Unrestricted Subsidiary, as designated by the Borrower in the manner provided below, and (ii) any Subsidiary of an Unrestricted Subsidiary. The Borrower may designate any Subsidiary of the Borrower (including any newly acquired or newly formed Subsidiary of the Borrower) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, the Borrower or any other Restricted Subsidiary of the Borrower that is not a Subsidiary of the Subsidiary to be so designated; provided, that (i)(A) such designation was made at or prior to the Closing Date (and any such Subsidiary so designated is set forth on Schedule 1.1(b)), or (B) the Subsidiary to be so designated has total consolidated assets of $1,000 or less or (C) if such Subsidiary has consolidated assets greater than $1,000, then the fair market value of such designation would be permitted under Section 8.7, (ii) any Unrestricted Subsidiary that has been designated as a Restricted Subsidiary may not subsequently be redesignated as an Unrestricted Subsidiary without the prior consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and (iii) no Unrestricted Subsidiary may at any time own, or hold an exclusive license in, any Intellectual Property that is material to the business of the Borrower and its Subsidiaries, taken as a whole (as reasonably determined by the Borrower); provided, further, that immediately prior and immediately after giving effect to any such designation of an “Unrestricted Subsidiary”, (x) the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) on a pro forma basis after giving effect to such designation as if completed on the first day of the twelve (12)-month period ending on the most recent Test Date and (y) no Default or Event of Default shall have occurred and be continuing. Any such designation by the Borrower shall be evidenced to the Administrative Agent by a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the foregoing provisions. Notwithstanding the foregoing, the Canadian Borrower shall not be permitted to be an Unrestricted Subsidiary.
“U.S. Government Securities Business Day”: any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Guarantee and Collateral Agreement”: that certain U.S. Guarantee and Collateral Agreement, dated as of June 23, 2023, among the U.S. Loan Parties and the Administrative Agent.
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“U.S. Intellectual Property Security Agreement”: each U.S. Intellectual Property Security Agreement executed and delivered by each applicable Loan Party in accordance with the U.S. Guarantee and Collateral Agreement.
“U.S. Loan Party”: any Loan Party (including the Borrower) organized under the laws of the United States, any state thereof or the District of Columbia.
“U.S. Person”: any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Secured Obligations”: all Secured Obligations (as defined in the U.S. Guarantee and Collateral Agreement) of the Borrower and the other Loan Parties in respect of the Closing Date Revolving Facility (including all obligations of the Borrower or the Canadian Borrower with respect to the Canadian Sublimit); provided that, in no event shall U.S. Secured Obligations include any Canadian Secured Obligations.
“U.S. Security Documents”: the collective reference to the U.S. Guarantee and Collateral Agreement, the U.S. Intellectual Property Security Agreements, Modifications (if any), the Mortgages (if any), and all other security documents hereafter delivered to the Administrative Agent, in each case, granting a Lien on any property of any U.S. Loan Party to secure the obligations and liabilities of any Loan Party under any Facility.
“U.S. Special Resolution Regimes”: as defined in Section 11.24.
“U.S. Tax Compliance Certificate”: as defined in Section 4.10(e).
“Weighted Average Life to Maturity”: when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
“Wholly Owned Foreign Subsidiary”: any Wholly Owned Subsidiary that is a Foreign Subsidiary.
“Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law or de minimis shares held by nominees or others as required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries. Unless otherwise qualified, all references to a “Wholly Owned Subsidiary” or to “Wholly Owned Subsidiaries” in this Agreement shall refer to a Wholly Owned Subsidiary or Wholly Owned Subsidiaries of the Borrower.
“Withholding Agent”: the Borrower and the Administrative Agent.
“Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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1.2. Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP applied in a consistent manner, (ii) all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP applied in a consistent manner, (iii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties of every type and nature, and (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time (subject to any applicable restrictions hereunder).
(c) For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., “Revolving Facility Loan”) or by Type (e.g., “Term Benchmark Loans”) or by Class and Type (e.g., a “Term Benchmark Revolving Facility Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Facility Borrowing”) or by Type (e.g., a “Term Benchmark Borrowing”) or by Class and Type (e.g., a “Term Benchmark Revolving Facility Borrowing”).
(d) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(e) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(f) The expressions “payment in full,” “paid in full” and any other similar terms or phrases when used herein with respect to any Obligation shall mean the payment in full of such Obligation in cash in immediately available funds.
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(g) All references to laws or statutes include all related rules, regulations, interpretations, amendments and successor provisions.
(h) All references to any Person include successors and assigns.
(i) (i) Any term defined in this Agreement by reference to the “UCC” or the “Uniform Commercial Code” shall also have any extended, alternative or analogous meaning given to such term in the applicable PPSA, in all cases for the extension, preservation or betterment of the security and rights of the Collateral and (ii) all references in this Agreement to a financing statement, continuation statement, amendment or termination statement shall be deemed to refer also to the analogous documents used under applicable Canadian personal property security laws, including, without limitation, where applicable, financing change statements.
1.3.
Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (w) compliance with any financial
ratio or test (including Section 8.1 hereof, any Consolidated Interest Coverage Ratio test, any Consolidated Net Leverage Ratio test,
any Consolidated Senior Secured Net Leverage Ratio test, the amount of Consolidated EBITDA or any cap expressed as a percentage of Consolidated
EBITDA) in connection with the incurrence of Indebtedness, the creation of Liens, the making of any Disposition, the making of an Investment,
the making of a Restricted Payment or the payment of any Junior Debt, (x) the absence of a Default or Event of Default, (y) compliance
with any provision of this Agreement which requires compliance with any representation or warranties set forth herein or (z) the satisfaction
of all other conditions precedent to the incurrence of Indebtedness, the creation of Liens, the making of any Disposition, the making
of an Investment, the making of a Restricted Payment or the payment of any Junior Debt, in each case, in connection with a Limited Condition
Transaction, the date of determination of such ratio or other provisions, absence of any Default or Event of Default, determination of
compliance with any representations or warranties or the satisfaction of any other conditions shall, at the option of the Borrower (the
Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election,”),
be deemed to be the date the definitive agreements (or other relevant definitive documentation) for such Limited Condition Transaction
are entered into (the “LCT Test Date”). If on a pro forma basis after giving effect to such Limited Condition Transaction
and the other transactions to be entered into in connection therewith, calculating such ratios and other provisions as if such Limited
Condition Transaction or other transactions had occurred at the beginning of the most recent period of four consecutive fiscal quarters
ending prior to the LCT Test Date for which financial statements have been (or are required to be) delivered pursuant to Section 7.1,
the Borrower could have taken such action on the relevant LCT Test Date in compliance with the applicable ratios or other provisions,
such provisions shall be deemed to have been complied with, unless an Event of Default pursuant to Section 9(a), or, solely with respect
to the Borrower, Section 9(f) shall be continuing on the date such Limited Condition Transaction is consummated. For the avoidance of
doubt, (i) if, following the LCT Test Date, any of such ratios or other provisions are exceeded or breached as a result of fluctuations
in such ratio (including due to fluctuations in Consolidated EBITDA or other components of such ratio) or other provisions at or prior
to the consummation of the relevant Limited Condition Transactions, such ratios and other provisions will not be deemed to have been exceeded
or failed to have been satisfied as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction
is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such
Limited Condition Transaction, unless, other than if an Event of Default pursuant to Section 9(a), or, solely with respect to the Borrower,
Section 9(f), shall be continuing on such date, the Borrower elects, in its sole discretion, to test such ratios and compliance with such
conditions on the date such Limited Condition Transaction is consummated. If the Borrower has made an LCT Election for any Limited Condition
Transaction, then in connection with any subsequent calculation of any ratio, basket availability or compliance with any other provision
hereunder (other than actual compliance with Section 8.1) on or following the relevant LCT Test Date and prior to the earliest of the
date on which such Limited Condition Transaction is consummated, the date that the definitive agreement for such Limited Condition Transaction
is terminated or expires without consummation of such Limited Condition Transaction or the date the Borrower makes an election pursuant
to clause (ii) of the immediately preceding sentence, any such ratio, basket or compliance with any other provision hereunder shall be
calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith had been consummated
on the LCT Test Date. Notwithstanding anything herein to the contrary, the terms of this Section 1.3(a) shall not apply to the conditions
set forth in Section 6.2 with respect to any extension of credit under theany
Revolving Facility (other than with respect to the incurrence of any Incremental Revolving Facility
Commitments).
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(b) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under Section 4.17 or any covenant that does not require compliance with a financial ratio (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement under Section 4.17 or the same covenant as such Fixed Amount that requires compliance with a financial ratio (including Section 8.1 hereof, any Consolidated Net Leverage Ratio test or any Consolidated Senior Secured Net Leverage Ratio test) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that the Fixed Amounts being substantially concurrently incurred shall be disregarded in the calculation of the financial ratio or test applicable to such substantially concurrent utilization of the Incurrence-Based Amounts under Section 4.17 or the same covenant as such Fixed Amount.
(c) Notwithstanding anything to the contrary herein, Consolidated EBITDA, Consolidated Net Income and any financial ratios or tests, including the Consolidated Interest Coverage Ratio, Consolidated Net Leverage Ratio and the Consolidated Senior Secured Net Leverage Ratio, shall be calculated in the manner prescribed by this Section 1.3(c) or (d), as applicable; provided that notwithstanding anything to the contrary in clauses (i), (ii), (iii) or (iv) of this Section 1.3(c) or Section 1.3(d), as applicable, when calculating the Consolidated Senior Secured Net Leverage Ratio for purposes of determining actual compliance (and not compliance on a pro forma basis or determining compliance giving pro forma effect to a transaction) with Section 8.1, the events described in this Section 1.3(c) or Section 1.3(d) that occurred subsequent to the end of the period of four consecutive fiscal quarters ended on the most recent Test Date shall not be given pro forma effect:
(i) if since the beginning of such period the Borrower or any Restricted Subsidiary has Incurred any Indebtedness that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test is an Incurrence of Indebtedness, then Consolidated EBITDA, Consolidated Interest Expense or such ratio or test for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B) if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation);
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(ii) if since the beginning of such period the Borrower or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness that is no longer outstanding on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need to calculate Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been permanently repaid), then Consolidated EBITDA, Consolidated Interest Expense or such financial ratio or test for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such Discharge had occurred on the first day of such period;
(iii) if since the beginning of such period the Borrower or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business (any such disposition, a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to any Indebtedness of the Borrower or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to the Borrower and its continuing Restricted Subsidiaries in connection with such Sale for such period (including but not limited to through the assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent the Borrower and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale, and any financial ratio or test shall be calculated after giving pro forma effect to such Sale as if such Sale had occurred on the first day of such period;
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(iv) if since the beginning of such period the Borrower or any Restricted Subsidiary (by merger, amalgamation, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business in a Permitted Acquisition, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder (any such Investment or acquisition, a “Purchase”), Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period;
(v) if since the beginning of such period any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (ii), (iii) or (iv) of Section 1.3(c) if made by the Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period; and
(vi) whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including without limitation in respect of anticipated cost savings, synergies or annualized impact of buyer fee increases relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or a Responsible Officer of the Borrower. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedge Agreement applicable to such Indebtedness). If any Indebtedness bears, at the option of the Borrower or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as the Borrower or such Restricted Subsidiary may designate. If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP.
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(d) For the purposes of calculating Consolidated EBITDA, Consolidated Interest Expense or any financial ratio or test for any period of four consecutive fiscal quarters (each, a “Reference Period”), (i) if at any time during such Reference Period the Borrower or any Restricted Subsidiary shall have made any Material Disposition or designated any Restricted Subsidiary as an Unrestricted Subsidiary, the Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition or designation for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such Reference Period the Borrower or any Restricted Subsidiary shall have made a Material Acquisition or designated any Unrestricted Subsidiary as a Restricted Subsidiary, Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto, as if such Material Acquisition or designation occurred on the first day of such Reference Period. As used in this definition, “Material Acquisition” means any acquisition of property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of consideration by the Borrower and its Restricted Subsidiaries in excess of $5,000,000; and “Material Disposition” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Restricted Subsidiaries in excess of $5,000,000.
(e) For purposes of determining compliance at any time with Sections 8.2, 8.3, 8.5, 8.6, 8.7 and 8.8, in the event that any Indebtedness, Lien, Disposition, Restricted Payment, Investment or payment with respect to Junior Debt restricted by Section 8.8, as applicable, meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause of such Sections 8.2, 8.3, 8.5, 8.6, 8.7 and 8.8, the Borrower, in its sole discretion, from time to time, may classify or reclassify such transaction or item (or portion thereof) within such applicable Sections and will only be required to include the amount and type of such transaction (or portion thereof) in any one category of each applicable Section. For purposes of determining the permissibility of any action, change, transaction or event that by the terms of the Loan Documents requires a calculation of any financial ratio or test (including Section 8.1 hereof, any Consolidated Interest Coverage Ratio test, any Consolidated Net Leverage Ratio test, any Consolidated Senior Secured Net Leverage Ratio test, the amount of Consolidated EBITDA or any cap expressed as a percentage of Consolidated EBITDA), such financial ratio or test shall, except as expressly permitted under this Agreement, be calculated at the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be. It is understood and agreed that any Indebtedness, Lien, Disposition, Restricted Payment, Investment or payment with respect to Junior Debt restricted by Section 8.8, need not be permitted solely by reference to one category of permitted Indebtedness, Lien, Disposition, Restricted Payment, Investment or payment with respect to Junior Debt, under Sections 8.2, 8.3, 8.5, 8.6, 8.7 and 8.8, respectively, but may instead be permitted in part under any combination thereof (it being understood that compliance with each such Section is separately required).
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1.4. Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) any reference to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company or limited partnership, or an allocation of assets to a series of a limited liability company or limited partnership (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person and (b) any division of a limited liability company or limited partnership shall constitute a separate Person hereunder (and each division of any limited liability company or limited partnership that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
1.5. Interest Rates; Benchmark Notification. The interest rate on a Loan denominated in Dollars or in Canadian Dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 4.7(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its Affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
1.6. Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Loans, Refinancing Term Loans, Refinancing Revolving Facility Loans, Extended Loans or loans incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in immediately available funds”, “in cash” or any other similar requirement.
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1.7. Exchange Rates; Currency Equivalents. (a) Except for Borrowings under the 2024 Canadian Revolving Facility, the Administrative Agent or the applicable Issuing Lender, as applicable, shall determine the Dollar Equivalent amounts of Term Benchmark Borrowings, RFR Borrowings or Letter of Credit extensions denominated in Canadian Dollars. Such Dollar Equivalent shall become effective as of a Revaluation Date and shall be the Dollar Equivalent of such amounts until the next Revaluation Date to occur. The Administrative Agent shall notify the Borrower of each such determination on a Revaluation Date. Except for purposes of financial statements delivered by the Borrower hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of Canadian Dollars for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the Issuing Lender, as applicable.
(b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Term Benchmark Loan or an RFR Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in Canadian Dollars, such amount shall be the Dollar Equivalent of such amount (rounded to the nearest unit of Canadian Dollars, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the Issuing Lender, as the case may be.
(c) For purposes of determining compliance with this Agreement, the accrual of interest, the accrual of dividends, the accretion of accreted value, the amortization of original issue discount, the payment of interest or a dividend in the form of additional Indebtedness or additional Equity Interests and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any applicable currency shall not be deemed to be an incurrence of Indebtedness and, to the extent secured, shall not be deemed to result in an increase of the Obligations so secured or to be a grant of a Lien securing any such Obligation.
1.8. Interpretation (Quebec). For all purposes pursuant to which the interpretation or construction of this Agreement or any other Loan Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” or “real estate” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest” and “mortgage” and “lien” shall be deemed to include a “hypothec”, “right of retention”, “prior claim”, “reservation of ownership” and a resolutory clause, (f) all references to filing, perfection, priority, remedies, registering or recording under the UCC or the PPSA shall be deemed to include publication under the Civil Code, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary”, (k) “gross negligence or willful misconduct” shall be deemed to include “intentional or gross fault”, (l) “construction liens” or “mechanics, materialmen, repairmen, construction contractors or other like Liens” shall include “legal hypothecs” and “legal hypothecs in favor of persons having taken part in the construction or renovation of an immovable”, (m) “joint and several” shall include “solidary”, (n) “beneficial ownership” shall include “ownership on behalf of another as mandatary”, (o) “easement” shall include “servitude”, (p) “priority” shall include “rank” or “prior claim”, as applicable (q) “survey” shall include “certificate of location and plan”, (r) “state” shall include “province”, (s) “fee simple title” or “fee owned” shall include “absolute ownership” and “ownership” (including ownership under a right of superficies), (t) “accounts” shall include “claims”, (u) “legal title” shall be including “holding title on behalf of an owner as mandatory or xxxxx-nom”, (v) “ground lease” shall include “emphyteusis” or a “lease with a right of superficies,” as applicable, (w) “leasehold interest” shall include a “valid lease”, (x) “lease” shall include a “leasing contract” and (y) “guarantee” and “guarantor” shall include “suretyship” and “surety”, respectively. The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement.
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SECTION
2. SECTION2. AMOUNT AND TERMS OF TERM LOANS
2.1. Term Loans.
(a) In accordance with the terms and conditions set forth herein, each Term Lender will extend Term Loans to the Borrower in a principal amount equal to such Term Lender’s Term Loan Allocation.
(b) The Term Loans shall be either Term Benchmark Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 4.3.
2.2. Procedure for the Term Loan Borrowing.
(a) The Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 1:00 p.m., New York City time), three (3) Business Days prior to the Term Loan Borrowing Date, requesting that the Term Lenders make the Term Loans on the Term Loan Borrowing Date and specifying the amount to be borrowed. Upon receipt of such notice, the Administrative Agent shall promptly notify each Term Lender. Not later than 1:00 p.m., New York City time, on the Term Loan Borrowing Date, each Term Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loans, as applicable, to be made by such Lender.
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(b) The Administrative Agent shall credit the account of the Borrower on the books of such office of the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Term Lenders in immediately available funds.
2.3. Repayment of Term Loans. Term Loans of each Term Lender shall mature and be payable in full on the date that is seven (7) years after the Term Loan Borrowing Date, and shall also be repayable prior to that date in consecutive quarterly installments, each of which shall be in an amount equal to such Term Lender’s Term Percentage of 0.25% of the original aggregate principal amount of the Term Loans outstanding on the Term Loan Borrowing Date after giving effect to Section 2.1 hereof, due commencing on the last day of the first full fiscal quarter after the Term Loan Borrowing Date and continuing on the last day of each consecutive March, June, September and December thereafter.
SECTION
3. SECTION3. AMOUNT AND TERMS OF REVOLVING FACILITY
COMMITMENTS
3.1. Revolving Facility Commitments.
(a)
(i) On the Closing Date, in accordance with the terms
and conditions set forth herein, each Closing Date Revolving
Facility Lender will extendextended
the Closing Date Revolving Facility Commitments
hereunder in an amount equal to its Closing Date Revolving
Facility Commitment Allocations.
(ii) On the First Amendment Effective Date, in accordance with the terms and conditions set forth herein and in the First Amendment, each 2024 Canadian Revolving Facility Lender will extend 2024 Canadian Revolving Facility Commitments in Canadian Dollars hereunder in an amount equal to its 2024 Canadian Revolving Facility Commitment Allocations.
(b)
(i) Subject to the terms and conditions hereof, each
Closing Date Revolving Facility
Lender severally agrees to make Closing Date Revolving
Facility Loans denominated
in Dollars (and/or in Canadian Dollars) to the Borrower (and/or
the Canadian Borrower solely as to Closing Date Revolving Facility Loans in Canadian Dollars) from time to time during the
Closing Date Revolving Facility
Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Xxxxxx’s Closing
Date Revolving Facility Extensions of Credit then
outstanding, does not exceed the amount of such Xxxxxx’s Revolving Commitment. RevolvingClosing
Date Revolving Facility Lender’s Closing Date Revolving Facility Commitment; provided that, Closing Date Revolving Facility Loans
in Canadian Dollars will only be available (A) in an aggregate amount not to exceed the Canadian Sublimit and (B) only to the extent the
2024 Canadian Revolving Facility has been fully drawn. Closing Date Revolving Facility Loans that are repaid may be reborrowed
during the Closing Date Revolving Facility
Commitment Period, subject to the terms and conditions hereof. The Closing
Date Revolving Facility Loans may from time to time
be (x) Term Benchmark Loans or (y)
in the case of Closing Date Revolving Facility Loans in Dollars, Base Rate Loans, as determined by the Applicable
Borrower and notified to the Administrative Agent in accordance with Sections 3.2 and 4.3.
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(ii) Subject to the terms and conditions hereof, each 2024 Canadian Revolving Facility Lender severally agrees to make 2024 Canadian Revolving Facility Loans denominated in Canadian Dollars to the Canadian Borrower from time to time during the 2024 Canadian Revolving Facility Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such 2024 Canadian Revolving Facility Lender’s 2024 Canadian Revolving Facility Extensions of Credit then outstanding, does not exceed the amount of such 2024 Canadian Revolving Facility Lender’s 2024 Canadian Revolving Facility Commitment. 2024 Canadian Revolving Facility Loans that are repaid may be reborrowed during the 2024 Canadian Revolving Facility Commitment Period, subject to the terms and conditions hereof. The 2024 Canadian Revolving Facility Loans may from time to time be (x) Term Benchmark Loans or (y) Canadian Prime Rate Loans, in each case, as determined by the Canadian Borrower and notified to the Administrative Agent in accordance with Sections 3.2 and 4.3.
(c) (i) The Applicable Borrower shall repay all outstanding Closing Date Revolving Facility Loans on the Closing Date Revolving Facility Termination Date.
(ii) The Canadian Borrower shall repay all outstanding 2024 Canadian Revolving Facility Loans on the 2024 Canadian Revolving Facility Termination Date.
3.2.
Procedure for Revolving Facility Loan Borrowing.
(1) The Applicable
Borrower may borrow under the Closing Date Revolving
Facility Commitments during the Closing
Date Revolving Facility Commitment Period on any
Business Day; provided, that the Applicable Borrower
shall give the Administrative Agent irrevocable notice, which must be received by the Administrative Agent prior to 1:00 p.m., New York
City time, (a) three (3) Business Days prior to the requested Borrowing Date, in the case of Term Benchmark Loans or (b) on the proposed
Borrowing Date, in the case of Base Rate Loans and which shall specify (i) the currency,
amount and Type of Revolving Facility Loans to be
borrowed, (ii) the requested Borrowing Date and (iii) in the case of Term Benchmark Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Period therefor;
provided further, that, in accordance with Section 3.2(3), the Applicable Borrower may only submit such notice in respect of Closing Date
Revolving Facility Loans denominated in Canadian Dollars to the extent there are no Available 2024 Canadian Revolving Facility Commitments.
Each borrowing under the Closing Date Revolving Facility
Commitments shall be in an amount equal to (x) in the case of Base Rate Loans, the
Dollar Equivalent of $1,000,000 or a whole multiple thereof and (y) in the case of Term Benchmark Loans, the
Dollar Equivalent of $5,000,000 (or a whole multiple
of the Dollar Equivalent of $1,000,000 in excess thereof).
Upon receipt of any such notice from the Applicable Borrower,
the Administrative Agent shall promptly notify each Closing Date Revolving
Facility Lender thereof. Each Closing
Date Revolving Facility Lender will make the amount
of its pro rata share of each borrowing available to the Administrative Agent in
the applicable currency for the account of the Applicable Borrower
at the Funding Office prior to 2:00 p.m., New York City time, on the Borrowing Date requested by the Applicable
Borrower in funds immediately available to the Administrative Agent. Such amounts will then be made available to the Applicable
Borrower by the Administrative Agent crediting an account of thesuch
Applicable Borrower, maintained by the Administrative
Agent, in like amounts and funds as received by the Administrative Agent.
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(2) The Canadian Borrower may borrow under the 2024 Canadian Revolving Facility Commitments during the 2024 Canadian Revolving Facility Commitment Period on any Business Day; provided, that the Canadian Borrower shall give the Administrative Agent irrevocable notice, which must be received by the Administrative Agent (a) prior to 1:00 p.m., New York City time three (3) Business Days (or, in the case of borrowings on the First Amendment Effective Date, such later time as the Administrative Agent may agree in its sole discretion) prior to the requested Borrowing Date, in the case of Term Benchmark Loans denominated in Canadian Dollars, (b) prior to 1:00 p.m., New York City time on the proposed Borrowing Date, in the case of Canadian Prime Rate Loans or (c) prior to 1:00 p.m., New York City time, three (3) Business Days prior to the requested Borrowing Date, in the case of an RFR Borrowing denominated in Canadian Dollars, and which shall specify (i) the amount and Type of 2024 Canadian Revolving Facility Loans to be borrowed in Canadian Dollars, (ii) the requested Borrowing Date and (iii) in the case of Term Benchmark Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor. If the Canadian Borrower fails to deliver a timely and complete notice with respect to a Term Benchmark Borrowing in Canadian Dollars prior to the end of the Interest Period therefor, then, unless such Term Benchmark Borrowing is repaid as provided herein, the Canadian Borrower shall be deemed to have selected that such Term Benchmark Borrowing shall automatically be continued as a Term Benchmark Borrowing in Canadian Dollars with an Interest Period of one month at the end of such Interest Period. Each borrowing under the 2024 Canadian Revolving Facility Commitments shall be in an amount equal to, in the case of Term Benchmark Loans, C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof. Upon receipt of any such notice from the Canadian Borrower, the Administrative Agent shall promptly notify each 2024 Canadian Revolving Facility Lender thereof. Each 2024 Canadian Revolving Facility Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Canadian Borrower at the Funding Office prior to 2:00 p.m., New York City time, on the Borrowing Date requested by the Canadian Borrower in funds immediately available to the Administrative Agent. Such amounts will then be made available to the Canadian Borrower by the Administrative Agent crediting an account of the Canadian Borrower maintained by the Administrative Agent, in like amounts and funds as received by the Administrative Agent.
(3) If, at any time after the First Amendment Effective Date, the Canadian Borrower desires to obtain 2024 Canadian Revolving Facility Loans in an amount that exceeds the Available 2024 Canadian Revolving Facility Commitments, the Canadian Borrower may request Closing Date Revolving Facility Loans denominated in Canadian Dollars in an amount in excess of such Available 2024 Canadian Revolving Facility Commitments, to the extent available under the Canadian Sublimit; provided that, such request shall be made by the Canadian Borrower subject to the terms and conditions in Section 3.2(1) for Closing Date Revolving Facility Loans.
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3.3. Swingline CommitmentCommitments.
.
(1) (a) Subject to the terms
and conditions hereof, the Closing Date Revolving Facility Swingline
Lender may in its sole discretion make a portion of the credit otherwise available to the Borrower under the Closing
Date Revolving Facility Commitments from time to
time during the Closing Date Revolving Facility
Commitment Period by making swingline loans (“denominated
in Dollars (“Closing Date Revolving Facility Swingline Loans”) to the Borrower notwithstanding that after
making a requested Closing Date Revolving Facility Swingline
Loan, the sum of (i) the Closing Date Revolving Facility Swingline
Lender’s aggregate principal amount of all Closing Date Revolving
Facility Loans, (ii) the Closing
Date Revolving Facility Percentage of the L/C Obligations
and (iii) all outstanding Closing Date Revolving Facility Swingline
Loans may exceed the Closing Date Revolving Facility Swingline
Lender’s Closing Date Revolving Facility
Commitment; provided, that (i) the aggregate principal amount of Closing
Date Revolving Facility Swingline Loans outstanding at any time shall not exceed the Closing
Date Revolving Facility Swingline Commitment, (ii) the Borrower shall not request any Swingline Loan if, after giving effect
to the making of such Closing Date Revolving Facility Swingline
Loan, the aggregate amount of the Available Closing Date Revolving
Facility Commitments would be less than zero and (iii) the
Closing Date Revolving Facility Swingline Lender shall not
be required to make any Closing Date Revolving Facility Swingline
Loans under this Section 3.3(1)(a) at any time when an Event
of Default has occurred and is continuing. Subject to the foregoing, Closing
Date Revolving Facility Swingline Loans may be repaid and reborrowed from time to time.
(b) Closing Date Revolving Facility Swingline Loans shall be Base Rate Loans only.
(c) The Borrower shall repay all outstanding Closing Date Revolving Facility Swingline Loans (i) on each Borrowing Date for Closing Date Revolving Facility Loans, (ii) on the Closing Date Revolving Facility Termination Date and (iii) on demand by the Closing Date Revolving Facility Swingline Lender at any time when an Event of Default has occurred and is continuing.
(2) (a) Subject to the terms and conditions hereof, the 2024 Canadian Revolving Facility Swingline Lender may in its sole discretion make a portion of the credit otherwise available to the Canadian Borrower under the 2024 Canadian Revolving Facility Commitments from time to time during the 2024 Canadian Revolving Facility Commitment Period by making swingline loans in Canadian Dollars (“2024 Canadian Revolving Facility Swingline Loans”) to the Canadian Borrower notwithstanding that after making a requested 2024 Canadian Revolving Facility Swingline Loan, the sum of (i) the 2024 Canadian Revolving Facility Swingline Lender’s aggregate principal amount of all 2024 Canadian Revolving Facility Loans, and (ii) all outstanding 2024 Canadian Revolving Facility Swingline Loans may exceed the 2024 Canadian Revolving Facility Swingline Lender’s 2024 Canadian Revolving Facility Commitment; provided, that (i) the aggregate principal amount of 2024 Canadian Revolving Facility Swingline Loans outstanding at any time shall not exceed the 2024 Canadian Revolving Facility Swingline Commitment, (ii) the Canadian Borrower shall not request any 2024 Canadian Revolving Facility Swingline Loan if, after giving effect to the making of such 2024 Canadian Revolving Facility Swingline Loan, the aggregate amount of the Available 2024 Canadian Revolving Facility Commitments would be less than zero, and (iii) the 2024 Canadian Revolving Facility Swingline Lender shall not be required to make any 2024 Canadian Revolving Facility Swingline Loans under this Section 3.3(2) at any time when an Event of Default has occurred and is continuing. Subject to the foregoing, 2024 Canadian Revolving Facility Swingline Loans may be repaid and reborrowed from time to time.
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(b) 2024 Canadian Revolving Facility Swingline Loans shall be Canadian Prime Rate Loans only.
(c) The Canadian Borrower shall repay all outstanding 2024 Canadian Revolving Facility Swingline Loans (i) on each Borrowing Date for 2024 Canadian Revolving Facility Loans, (ii) on the 2024 Canadian Revolving Facility Termination Date and (iii) on demand by the 2024 Canadian Revolving Facility Swingline Lender at any time when an Event of Default has occurred and is continuing.
3.4. Procedure for Swingline BorrowingBorrowings; Refunding of Swingline Loans; Successor Swingline Lenders. (1) (a) Whenever the Borrower desires that the Closing Date Revolving Facility Swingline Lender make Closing Date Revolving Facility Swingline Loans it shall give the Closing Date Revolving Facility Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Closing Date Revolving Facility Swingline Lender not later than 1:00 p.m., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date (which shall be a Business Day during the Closing Date Revolving Facility Commitment Period) and such notice shall constitute certification by the Borrower to the Closing Date Revolving Facility Swingline Lender that the unused portion of the Closing Date Revolving Facility is greater than or equal to the Closing Date Revolving Facility Swingline Loans and the Closing Date Revolving Facility Swingline Lender shall be entitled to rely conclusively on such certification. Each borrowing of Closing Date Revolving Facility Swingline Loans shall be in an amount equal to the Dollar Equivalent of $100,000 or a whole multiple of the Dollar Equivalent of $100,000 in excess thereof. Not later than 3:00 p.m., New York City time, on the Borrowing Date specified in a notice in respect of Closing Date Revolving Facility Swingline Loans, the Closing Date Revolving Facility Swingline Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the Closing Date Revolving Facility Swingline Loan to be made by the Closing Date Revolving Facility Swingline Lender. The Administrative Agent shall make the proceeds of such Closing Date Revolving Facility Swingline Loan available to the Borrower on such Borrowing Date by depositing such proceeds in the account of the Borrower with the Administrative Agent on such Borrowing Date in immediately available funds.
(b) The Closing Date Revolving Facility Swingline Lender may at any time, on behalf of the Borrower (which hereby irrevocably authorizes the Closing Date Revolving Facility Swingline Lender to do so), request a borrowing of Closing Date Revolving Facility Loans in an amount equal to the aggregate outstanding Closing Date Revolving Facility Swingline Loans and apply the proceeds of such borrowing to the repayment of the Closing Date Revolving Facility Swingline Loans. Each Closing Date Revolving Facility Lender agrees to fund its Closing Date Revolving Facility Percentage of any such borrowing so requested in immediately available funds, not later than 10:00 a.m., New York City time, on the first Business Day after the date of such borrowing is requested. The proceeds of such Closing Date Revolving Facility Loans shall immediately be made available by the Administrative Agent to the Closing Date Revolving Facility Swingline Lender for application to the repayment of Closing Date Revolving Facility Swingline Loans. The Borrower agrees to pay, and irrevocably authorizes the Closing Date Revolving Facility Swingline Lender and Administrative Agent to charge the Borrower’s accounts with the Closing Date Revolving Facility Swingline Lender or Administrative Agent as necessary to pay, all outstanding Closing Date Revolving Facility Swingline Loans to the extent amounts received from the Closing Date Revolving Facility Lenders upon any such request are not sufficient to repay the outstanding Closing Date Revolving Facility Swingline Loans.
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(c) If the Closing Date Revolving Facility Swingline Lender at any time determines that it is precluded from making a request for a borrowing of Closing Date Revolving Facility Loans pursuant to Section 3.4(1)(b), whether by reason of the occurrence of a Default described in Section 9(f) or otherwise for any reason, each Closing Date Revolving Facility Lender hereby purchases from the Closing Date Revolving Facility Swingline Lender an undivided participating interest in the then outstanding Closing Date Revolving Facility Swingline Loans (a “Closing Date Revolving Facility Swingline Participation Amount”) and shall promptly upon demand of the Closing Date Revolving Facility Swingline Lender complete such purchase at par by paying to the Closing Date Revolving Facility Swingline Lender an amount equal to such Closing Date Revolving Facility Lender’s Closing Date Revolving Facility Percentage of the aggregate outstanding Closing Date Revolving Facility Swingline Loans.
(d) Whenever, at any time after the Closing Date Revolving Facility Swingline Lender has received from any Closing Date Revolving Facility Lender such Closing Date Revolving Facility Lender’s Closing Date Revolving Facility Swingline Participation Amount, the Closing Date Revolving Facility Swingline Lender receives any payment on account of the Closing Date Revolving Facility Swingline Loans, the Closing Date Revolving Facility Swingline Lender will distribute to such Closing Date Revolving Facility Lender its Closing Date Revolving Facility Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Closing Date Revolving Facility Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Closing Date Revolving Facility Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Closing Date Revolving Facility Swingline Loans then due); provided, that if any such payment is required to be returned, such Closing Date Revolving Facility Lender will return to the Closing Date Revolving Facility Swingline Lender any portion thereof previously distributed to it by the Closing Date Revolving Facility Swingline Lender.
(e) Each Closing Date Revolving Facility Lender’s obligation to make the Loans referred to in Section 3.4(1)(b) and to purchase participating interests pursuant to Section 3.4(1)(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such Closing Date Revolving Facility Lender or the Borrower may have against the Closing Date Revolving Facility Swingline Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of any Default or the failure to satisfy any of the conditions specified in Section 6; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Revolving Facility Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
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(f) The Closing Date Revolving Facility Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Closing Date Revolving Facility Swingline Lender and the successor Closing Date Revolving Facility Swingline Lender. The Administrative Agent shall notify the Closing Date Revolving Facility Lenders of any such replacement of the Closing Date Revolving Facility Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Closing Date Revolving Facility Swingline Lender pursuant to Section 4.5(b). From and after the effective date of any such replacement, (x) the successor Closing Date Revolving Facility Swingline Lender shall have all the rights and obligations of the replaced Closing Date Revolving Facility Swingline Lender under this Agreement with respect to Closing Date Revolving Facility Swingline Loans made thereafter and (y) references herein to the term “Closing Date Revolving Facility Swingline Lender” shall be deemed to refer to such successor or to any previous Closing Date Revolving Facility Swingline Lender, or to such successor and all previous Closing Date Revolving Facility Swingline Lenders, as the context shall require. After the replacement of a Closing Date Revolving Facility Swingline Lender hereunder, the replaced Closing Date Revolving Facility Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Closing Date Revolving Facility Swingline Lender under this Agreement with respect to Closing Date Revolving Facility Swingline Loans made by it prior to its replacement, but shall not be required to make additional Closing Date Revolving Facility Swingline Loans.
(g) Subject to the appointment and acceptance of a successor Closing Date Revolving Facility Swingline Lender, any Closing Date Revolving Facility Swingline Lender may resign as a Closing Date Revolving Facility Swingline Lender at any time upon thirty (30) days’ prior written notice to the Administrative Agent, the Borrower and the Closing Date Revolving Facility Lenders, in which case, such Closing Date Revolving Facility Swingline Lender shall be replaced in accordance with Section 3.4(1)(f) above.
(2) (a) Whenever the Canadian Borrower desires that the 2024 Canadian Revolving Facility Swingline Lender make 2024 Canadian Revolving Facility Swingline Loans it shall give the 2024 Canadian Revolving Facility Swingline Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the 2024 Canadian Revolving Facility Swingline Lender not later than 1:00 p.m., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed in Canadian Dollars and (ii) the requested Borrowing Date (which shall be a Business Day during the 2024 Canadian Revolving Facility Commitment Period) and such notice shall constitute certification by the Canadian Borrower to the 2024 Canadian Revolving Facility Swingline Lender that the unused portion of the 2024 Canadian Revolving Facility is greater than or equal to the 2024 Canadian Revolving Facility Swingline Loans and the 2024 Canadian Revolving Facility Swingline Lender shall be entitled to rely conclusively on such certification. Each borrowing of 2024 Canadian Revolving Facility Swingline Loans shall be in an amount equal to C$100,000 or a whole multiple of C$100,000 in excess thereof. Not later than 3:00 p.m., New York City time, on the Borrowing Date specified in a notice in respect of 2024 Canadian Revolving Facility Swingline Loans, the 2024 Canadian Revolving Facility Swingline Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the amount of the 2024 Canadian Revolving Facility Swingline Loan to be made by the 2024 Canadian Revolving Facility Swingline Lender. The Administrative Agent shall make the proceeds of such 2024 Canadian Revolving Facility Swingline Loan available to the Canadian Borrower on such Borrowing Date by depositing such proceeds in the account of the Canadian Borrower with the Administrative Agent on such Borrowing Date in immediately available funds.
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(b) The 2024 Canadian Revolving Facility Swingline Lender may at any time, on behalf of the Canadian Borrower (which hereby irrevocably authorizes the 2024 Canadian Revolving Facility Swingline Lender to do so), request a borrowing of 2024 Canadian Revolving Facility Loans in an amount equal to the aggregate outstanding 2024 Canadian Revolving Facility Swingline Loans and apply the proceeds of such borrowing to the repayment of the 2024 Canadian Revolving Facility Swingline Loans. Each 2024 Canadian Revolving Facility Lender agrees to fund its 2024 Canadian Revolving Facility Percentage of any such borrowing so requested in immediately available funds, not later than 10:00 a.m., New York City time, on the first Business Day after the date of such borrowing is requested. The proceeds of such 2024 Canadian Revolving Facility Loans shall immediately be made available by the Administrative Agent to the 2024 Canadian Revolving Facility Swingline Lender for application to the repayment of 2024 Canadian Revolving Facility Swingline Loans. The Canadian Borrower agrees to pay, and irrevocably authorizes the 2024 Canadian Revolving Facility Swingline Lender and Administrative Agent to charge the Canadian Borrower’s accounts with the 2024 Canadian Revolving Facility Swingline Lender or Administrative Agent as necessary to pay, all outstanding 2024 Canadian Revolving Facility Swingline Loans to the extent amounts received from the 2024 Canadian Revolving Facility Lenders upon any such request are not sufficient to repay the outstanding 2024 Canadian Revolving Facility Swingline Loans.
(c) If the 2024 Canadian Revolving Facility Swingline Lender at any time determines that it is precluded from making a request for a borrowing of 2024 Canadian Revolving Facility Loans pursuant to Section 3.4(2)(b), whether by reason of the occurrence of a Default described in Section 9(f) or otherwise for any reason, each 2024 Canadian Revolving Facility Lender hereby purchases from the 2024 Canadian Revolving Facility Swingline Lender an undivided participating interest in the then outstanding 2024 Canadian Revolving Facility Swingline Loans (a “2024 Canadian Revolving Facility Swingline Participation Amount”) and shall promptly upon demand of the 2024 Canadian Revolving Facility Swingline Lender complete such purchase at par by paying to the 2024 Canadian Revolving Facility Swingline Lender an amount equal to such 2024 Canadian Revolving Facility Lender’s 2024 Canadian Revolving Facility Percentage of the aggregate outstanding 2024 Canadian Revolving Facility Swingline Loans.
(d) Whenever, at any time after the 2024 Canadian Revolving Facility Swingline Lender has received from any 2024 Canadian Revolving Facility Lender such 2024 Canadian Revolving Facility Lender’s 2024 Canadian Revolving Facility Swingline Participation Amount, the 2024 Canadian Revolving Facility Swingline Lender receives any payment on account of the 2024 Canadian Revolving Facility Swingline Loans, the 2024 Canadian Revolving Facility Swingline Lender will distribute to such Lender its 2024 Canadian Revolving Facility Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such 2024 Canadian Revolving Facility Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such 2024 Canadian Revolving Facility Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all 2024 Canadian Revolving Facility Swingline Loans then due); provided, that if any such payment is required to be returned, such 2024 Canadian Revolving Facility Lender will return to the 2024 Canadian Revolving Facility Swingline Lender any portion thereof previously distributed to it by the 2024 Canadian Revolving Facility Swingline Lender.
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(e) Each 2024 Canadian Revolving Facility Lender’s obligation to make the Loans referred to in Section 3.4(2)(b) and to purchase participating interests pursuant to Section 3.4(2)(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such 2024 Canadian Revolving Facility Lender or the Canadian Borrower may have against the 2024 Canadian Revolving Facility Swingline Lender, the Canadian Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of any Default or the failure to satisfy any of the conditions specified in Section 6; (iii) any adverse change in the condition (financial or otherwise) of the Canadian Borrower; (iv) any breach of this Agreement or any other Loan Document by the Canadian Borrower, any other Loan Party or any other Revolving Facility Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(f) The 2024 Canadian Revolving Facility Swingline Lender may be replaced at any time by written agreement among the Canadian Borrower, the Administrative Agent, the replaced 2024 Canadian Revolving Facility Swingline Lender and the successor 2024 Canadian Revolving Facility Swingline Lender. The Administrative Agent shall notify the 2024 Canadian Revolving Facility Lenders of any such replacement of a 2024 Canadian Revolving Facility Swingline Lender. At the time any such replacement shall become effective, the Canadian Borrower shall pay all unpaid interest accrued for the account of the replaced 2024 Canadian Revolving Facility Swingline Lender pursuant to Section 4.5(b). From and after the effective date of any such replacement, (x) the successor 2024 Canadian Revolving Facility Swingline Lender shall have all the rights and obligations of the replaced 2024 Canadian Revolving Facility Swingline Lender under this Agreement with respect to 2024 Canadian Revolving Facility Swingline Loans made thereafter and (y) references herein to the term “2024 Canadian Revolving Facility Swingline Lender” shall be deemed to refer to such successor or to any previous 2024 Canadian Revolving Facility Swingline Lender, or to such successor and all previous 2024 Canadian Revolving Facility Swingline Lenders, as the context shall require. After the replacement of a 2024 Canadian Revolving Facility Swingline Lender hereunder, the replaced 2024 Canadian Revolving Facility Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a 2024 Canadian Revolving Facility Swingline Lender under this Agreement with respect to 2024 Canadian Revolving Facility Swingline Loans made by it prior to its replacement, but shall not be required to make additional 2024 Canadian Revolving Facility Swingline Loans.
(g) Subject to the appointment and acceptance of a successor 2024 Canadian Revolving Facility Swingline Lender, any 2024 Canadian Revolving Facility Swingline Lender may resign as a 2024 Canadian Revolving Facility Swingline Lender at any time upon thirty (30) days’ prior written notice to the Administrative Agent, the Canadian Borrower and the 2024 Canadian Revolving Facility Lenders, in which case, such 2024 Canadian Revolving Facility Swingline Lender shall be replaced in accordance with Section 3.4(2)(f) above.
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3.5. Commitment Fees, etc.
(a)
(a) The Borrower agrees to pay,
or cause to be paid, to the Administrative Agent for the account of each Closing
Date Revolving Facility Lender a commitment fee
for the period from and including the Closing Date to the last day of the Closing
Date Revolving Facility Commitment Period, computed
at the applicable Commitment Fee Rate on the average daily
amount of the Available Closing Date Revolving Facility
Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Closing Date Revolving
Facility Termination Date.
(b) The Canadian Borrower agrees to pay, or cause to be paid, to the Administrative Agent for the account of each 2024 Canadian Revolving Facility Lender a commitment fee for the period from and including the First Amendment Effective Date to the last day of the 2024 Canadian Revolving Facility Commitment Period, computed at the applicable Commitment Fee Rate on the average daily amount of the Available 2024 Canadian Revolving Facility Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the last day of each March, June, September and December and on the 2024 Canadian Revolving Facility Termination Date.
(c)
(b) The Applicable
Borrower agrees to pay, or cause to be paid, to
the Administrative Agent the fees in the amounts and on the dates agreed to in writing by the Applicable
Borrower and the Administrative Agent.
3.6. Termination or Reduction of Revolving Facility Commitments. (1) The Borrower shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent, to terminate the Closing Date Revolving Facility Commitments or, from time to time, to reduce the amount of the Closing Date Revolving Facility Commitments, which notice may be conditioned upon the occurrence of any other transaction and, if such condition is not satisfied on or prior to the date specified in such notice, may be revoked by the Borrower; provided, that no such termination or reduction of Closing Date Revolving Facility Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Closing Date Revolving Facility Loans and Closing Date Revolving Facility Swingline Loans made on the effective date thereof, the Total Closing Date Revolving Facility Extensions of Credit would exceed the Total Closing Date Revolving Facility Commitments. Any such reduction shall be in an amount equal to the Dollar Equivalent of $500,000, or a whole multiple thereof or the Total Closing Date Revolving Facility Commitment, and shall reduce permanently the Closing Date Revolving Facility Commitments then in effect. Unless previously terminated in accordance with the terms hereof, the Closing Date Revolving Facility Commitments shall automatically terminate on the Closing Date Revolving Facility Termination Date.
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(2) The Canadian Borrower shall have the right, upon not less than three (3) Business Days’ notice to the Administrative Agent, to terminate the 2024 Canadian Revolving Facility Commitments or, from time to time, to reduce the amount of the 2024 Canadian Revolving Facility Commitments, which notice may be conditioned upon the occurrence of any other transaction and, if such condition is not satisfied on or prior to the date specified in such notice, may be revoked by the Canadian Borrower; provided, that no such termination or reduction of 2024 Canadian Revolving Facility Commitments shall be permitted if, after giving effect thereto and to any prepayments of the 2024 Canadian Revolving Facility Loans and 2024 Canadian Revolving Facility Swingline Loans made on the effective date thereof, the Total 2024 Canadian Revolving Facility Extensions of Credit would exceed the Total 2024 Canadian Revolving Facility Commitments. Any such reduction shall be in an amount equal to C$500,000, or a whole multiple thereof or the Total 2024 Canadian Revolving Facility Commitment, and shall reduce permanently the 2024 Canadian Revolving Facility Commitments then in effect. Unless previously terminated in accordance with the terms hereof, the 2024 Canadian Revolving Facility Commitments shall automatically terminate on the 2024 Canadian Revolving Facility Termination Date.
3.7.
Letter of Credit Commitment. (a) Subject
to the terms and conditions hereof, each Issuing Lender (other than any Issuing Lender referred to in clause (b) of the definition of
“Issuing Lender”), in reliance on the agreements of the other Closing
Date Revolving Facility Lenders set forth in Section
3.10(a), agrees to issue, on a sight basis, letters of credit for the account of the Borrower (as
to any Letter of Credit denominated in Dollars) or the Canadian Borrower (as to any Letter of Credit denominated in Canadian Dollars)
(or for the account of any Subsidiary of the Applicable Borrower
if thesuch Applicable
Borrower requests a Letter of Credit for such Subsidiary’s account; provided, that notwithstanding that a Letter of Credit
may be issued or outstanding hereunder in support of any obligations of, or for the account of, a Subsidiary of the Applicable
Borrower, the Applicable Borrower shall be jointly
and severally obligated to reimburse each Issuing Lender hereunder for any and all drawings under such Letter of Credit) on any Business
Day at any time and from time to time until the date that is ten (10) days prior to the Closing
Date Revolving Facility Termination Date, in such
form as may be approved from time to time by such Issuing Lender; provided, that the applicable Issuing Lender shall have no obligation
to cause any Letter of Credit to be issued if, after giving effect to such issuance, (i) the L/C Obligations would exceed the Total L/C
Commitments, (ii) the aggregate amount of the Available Closing Date Revolving
Facility Commitments would be less than zero, (iii) the stated
amount of all outstanding Letters of Credit issued by such Issuing Lender would exceed the then outstanding aggregate principal amount
of the outstanding Closing Date Revolving Facility
Commitments of such Issuing Lender (provided, that such Issuing Lender may at its sole discretion issue a Letter of
Credit although after giving effect to such issuance the stated amount of all outstanding Letters of Credit issued by such Issuing Lender
would exceed its outstanding Closing Date Revolving Facility
Commitments, so long as after giving effect to such issuance (x) the L/C Obligations would not exceed the Total L/C Commitments
and (y) the Total Closing Date Revolving Facility
Extensions of Credit would not exceed the aggregate principal amount of the Closing
Date Revolving Facility Commitments) or (iv) the
stated amount of all outstanding Letters of Credit issued by such Issuing Lender would exceed such Issuing Lender’s L/C Commitment
(provided, that such Issuing Lender, may at its sole discretion issue a Letter of Credit although after giving effect to such issuance
the stated amount of all outstanding Letters of Credit issued by such Issuing Lender would exceed its L/C Commitment, so long as after
giving effect to such issuance (x) the L/C Obligations would not exceed the Total L/C Commitments and (y) the Total Closing
Date Revolving Facility Extensions of Credit would
not exceed the aggregate principal amount of the Closing Date Revolving
Facility Commitments); provided, further, that
no Issuing Lender shall be under any obligation to issue commercial or trade Letters of Credit. In the event of any conflict between the
terms and conditions of this Agreement and the terms and conditions of any Application or other agreement submitted by the Applicable
Borrower to, or entered into by the Applicable Borrower
with, the applicable Issuing Lender relating to any Letter of Credit, the terms and conditions of this Agreement shall control. Each Letter
of Credit shall be denominated in Dollars (or, subject to the Canadian
Sublimit, in Canadian Dollars) and expire no later than the earlier of (i) the first anniversary of its date of issuance and
(ii) the date that is five (5) days prior to the Closing Date Revolving
Facility Termination Date; provided, that any Letter
of Credit with a one (1)-year term may provide, with the consent of the applicable Issuing Lender, for the automatic extension thereof
for additional periods of up to one (1) year (which shall in no event extend beyond the date referred to in clause (ii) above). If, as
of the Closing Date Revolving Facility
Termination Date, any Letter of Credit for any reason remains outstanding, the Applicable
Borrower shall promptly Cash Collateralize the then undrawn amount of all outstanding Letters of Credit; provided, that
all such Cash Collateral or Backstop L/Cs shall be denominated in Dollars or
in Canadian Dollars, as applicable. If, at any time, the expiration date of any Letter of Credit shall be a date that is later
than the Closing Date Revolving Facility
Termination Date, then, at the request of the applicable Issuing Lender, the Applicable
Borrower shall promptly Cash Collateralize the undrawn amount of such Letter of Credit. “Cash
Collateralize” shall mean to (i) pledge and deposit with or deliver to the Administrative Agent, for the benefit of the
applicable Issuing Lender and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances of deposit accounts
under the sole dominion and control of the Administrative Agent on terms reasonably satisfactory to the Administrative Agent in an amount
equal to 103% of the total amount then available under the applicable Letters of Credit pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and such Issuing Lender (which documents are hereby consented to by the Lenders) (“Cash
Collateral”) or (ii) deliver to the applicable Issuing Lender one or more backstop letters of credit in form and substance
reasonably acceptable to, and issued by financial institutions reasonably acceptable to the applicable Issuing Lender that has issued
such Letter of Credit and the Administrative Agent (each such letter of credit, a “Backstop
L/C”). With respect to any Letters of Credit denominated
in Canadian Dollars, the Administrative Agent may, at any time and from time to time after the initial deposit of Cash Collateral, request
that additional Cash Collateral be provided as required in the reasonable judgment of the Administrative Agent to protect against exchange
rate fluctuations. Derivatives of such above defined terms shall have corresponding meanings.
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(b) No Issuing Lender shall at any time be obligated to cause any Letter of Credit to be issued hereunder if such issuance would conflict with, or cause such Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law or such Issuing Lender’s internal policies relating to the issuance of Letters of Credit.
(c) The Applicable Borrower may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and such Lender being so designated, designate one or more additional Lenders to act as an issuing lender under the terms of this Agreement. Any Lender designated as an issuing lender pursuant to this Section 3.7(c) shall be deemed to be an “Issuing Lender” (in addition to being a Lender) in respect of Letters of Credit issued or to be issued by such Xxxxxx, and, with respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Lender or Issuing Lenders and such Lender.
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(d) The parties hereto hereby agree that each Existing Letter of Credit shall, for all purposes of the Loan Documents, be deemed to be a Letter of Credit issued on the Closing Date pursuant to this Agreement; provided that each such Existing Letter of Credit shall expire in accordance with its own terms (subject to any renewal or extension in accordance with its terms).
(e) Any Issuing Lender may be replaced at any time by written agreement among the Applicable Borrower, the Administrative Agent, the replaced Xxxxxxx Xxxxxx and the successor Xxxxxxx Xxxxxx. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Lender. At the time any such replacement shall become effective, the Applicable Borrower shall pay, or cause to be paid, all unpaid fees accrued for the account of the replaced Issuing Lender pursuant to Section 3.9. From and after the effective date of any such replacement, (x) the successor Issuing Lender shall have all the rights and obligations of the replaced Issuing Lender under this Agreement with respect to Letters of Credit to be issued thereafter and (y) references herein to the term “Issuing Lender” shall be deemed to refer to such successor or to any previous Issuing Lender, or to such successor and all previous Issuing Lenders, as the context shall require. After the replacement of an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Lender under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit or amend or extend any outstanding Letter of Credit issued by it.
(f) Any Issuing Xxxxxx may resign as an Issuing Xxxxxx at any time upon thirty (30) days’ prior written notice to the Administrative Agent and the Borrower, in which case, such Issuing Lender may be replaced in accordance with Section 3.7(e) above.
3.8. Procedure for Issuance of Letters of Credit. (a) The Applicable Borrower may from time to time request that any Issuing Lender (other than any Issuing Lender referred to in clause (b) of the definition of “Issuing Lender”) issue a Letter of Credit by delivering to such Issuing Lender at its address for notices specified herein an Application therefor, completed to the reasonable satisfaction of such Issuing Lender, and such other certificates, documents and other papers and information as such Issuing Lender may reasonably request. Upon receipt of any Application, such Issuing Lender will notify the Administrative Agent of the amount, the beneficiary and the requested expiration of the requested Letter of Credit, and upon receipt of written confirmation from the Administrative Agent that after giving effect to the requested issuance, none of the statements specified in clauses (i) through (iv) of the first sentence of Section 3.7(a) would be true, such Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith to be processed in accordance with its customary policies and procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall any Issuing Lender be required to issue any Letter of Credit earlier than three (3) Business Days after its receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by such Xxxxxxx Xxxxxx and the Borrower. Such Issuing Lender shall furnish a copy of such Letter of Credit to the Applicable Borrower (with a copy to the Administrative Agent) promptly following the issuance thereof. Such Issuing Lender shall promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of each Letter of Credit (including the amount thereof).
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(b) The making of each request for a Letter of Credit by the Applicable Borrower shall be deemed to be a representation and warranty by the Applicable Borrower that such Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.7(a) or any Requirement of Law applicable to the Loan Parties. Unless each Issuing Lender has received notice from the Administrative Agent before it issues a Letter of Credit that one or more of the applicable conditions specified in Section 6.1 are not satisfied, or that the issuance of such Letter of Credit would violate Section 3.7, then such Issuing Lender may issue the requested Letter of Credit for the account of the Applicable Borrower in accordance with its customary policies and procedures.
3.9. Fees and Other Charges. (a) The Applicable Borrower will pay, or cause to be paid, a fee on the undrawn and unexpired amount of each Letter of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Term Benchmark Loans under the Closing Date Revolving Facility less the fronting fee set forth in the succeeding sentence, shared ratably among the Closing Date Revolving Facility Lenders and payable quarterly in arrears on each L/C Fee Payment Date after the issuance date. In addition, the Applicable Borrower shall pay, or cause to be paid, to each Issuing Lender for its own account a fronting fee on the undrawn and unexpired amount of each Letter of Credit issued by such Issuing Lender computed at the rate of 0.125% per annum and payable quarterly in arrears on each L/C Fee Payment Date.
(b) In addition to the foregoing fees, the Applicable Borrower shall pay, or cause to be paid, or reimburse, or cause to be reimbursed, each Issuing Lender for such normal and customary costs and expenses as are incurred or charged by such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit.
3.10. Letter of Credit Participations. (a) Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce such Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Closing Date Revolving Facility Percentage in such Issuing Lender’s obligations and rights under and in respect of each Letter of Credit issued hereunder and the amount of each drawing paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with each Issuing Lender that, if a drawing is paid under any Letter of Credit for which such Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay to the Administrative Agent for the account of such Issuing Lender upon demand of such Issuing Lender an amount equal to such L/C Participant’s Closing Date Revolving Facility Percentage of the amount of such drawing, or any part thereof, that is not so reimbursed and the Administrative Agent shall promptly forward such amounts to such Issuing Lender.
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(b) If any amount required to be paid by any L/C Participant to the Administrative Agent for the account of any Issuing Lender pursuant to Section 3.10(a) in respect of any unreimbursed portion of any payment made by such Issuing Lender under any Letter of Credit is paid to the Administrative Agent for the account of such Issuing Lender within three (3) Business Days after the date such payment is due, such L/C Participant shall pay to the Administrative Agent for the account of such Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to such Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 3.10(a) is not made available to the Administrative Agent for the account of any Issuing Lender by such L/C Participant within three (3) Business Days after the date such payment is due, such Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to Base Rate Loans under the Closing Date Revolving Facility. A certificate of any Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this Section 3.10 shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after any Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata share of such payment in accordance with Section 3.10(a), the Administrative Agent or any Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied thereto by such Issuing Lender), or any payment of interest on account thereof, the Administrative Agent or such Issuing Lender, as the case may be, will distribute to such L/C Participant its pro rata share thereof; provided, that if any such payment received by Administrative Agent or such Issuing Lender, as the case may be, shall be required to be returned by the Administrative Agent or such Issuing Lender, such L/C Participant shall return to the Administrative Agent for the account of such Issuing Lender the portion thereof previously distributed to such L/C Participant.
3.11. Reimbursement Obligation of the Applicable Borrower. The Applicable Borrower agrees to reimburse, or cause to be reimbursed, each Issuing Lender within one (1) Business Day after such Issuing Lender notifies the Applicable Borrower of the date and amount of a drawing presented under any Letter of Credit paid by such Issuing Lender or on the next Business Day, if such notice is received any time after 11:00 a.m., New York City time, on such Business Day for the amount of such drawing so paid. Each such payment shall be made to such Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds. Interest shall be payable on any such amounts from the date on which the relevant drawing is paid until payment in full at the rate set forth in (i) until the Business Day next succeeding the date of the relevant notice, Section 4.5(b) and (ii) thereafter, Section 4.5(c).
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3.12.
Obligations Absolute. The Applicable
Borrower’s obligations under Section 3.11 shall be absolute and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment that the Borrower may have or have had against any Issuing Lender, any beneficiary of
a Letter of Credit or any other Person. The Applicable Borrower
also agrees with each Issuing Lender that such Issuing Lender shall not be responsible for, and the Applicable
Borrower’s Reimbursement Obligations under Section 3.11 shall not be affected by, among other things, (i) the validity
or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among the Applicable Borrower
and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or purportedly transferred
or any claims whatsoever of the Applicable Borrower against
any beneficiary of such Letter of Credit or any such transferee or purported transferee, (ii) payment by each Issuing Lender under a Letter
of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iii) any
other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section
3.12, constitute a legal or equitable discharge of, or provide a right of setoff against, the Applicable
Borrower’s obligations hereunder. No Issuing Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the gross
negligence, bad faith or willful misconduct of such Issuing Lender or any Related Person of such Issuing Lender. The Applicable
Borrower agrees that any action taken by any Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence, bad faith or willful misconduct and in accordance with the standards
of care specified in the Uniform Commercial Code of the State of New York, shall
be binding on the Applicable Borrower and shall not result
in any liability of such Issuing Lender to the Applicable Borrower.
3.13. Letter of Credit Payments. If a compliant drawing shall be presented for payment under any Letter of Credit, the applicable Issuing Lender that issued such Letter of Credit shall promptly notify the Administrative Agent who in turn shall promptly notify the Applicable Borrower of the date and amount thereof. The responsibility of each Issuing Lender to the Applicable Borrower in connection with any drawing presented for payment under any Letter of Credit issued by such Issuing Lender shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to causing the applicable Issuing Lender that has issued such Letter of Credit to determine that the documents (including each drawing, if any) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit.
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SECTION
4. SECTION4. GENERAL PROVISIONS APPLICABLE TO LOANS AND
LETTERS OF CREDIT
4.1.
Optional Prepayments. (a) The Applicable
Borrower may at any time and from time to time voluntarily prepay the Loans, in whole or in part, without premium or penalty,
upon irrevocable notice delivered to the Administrative Agent (i) no later than 1:00 p.m., New York City time (or such later time as the
Administrative Agent may agree in its sole discretion), three (3) Business Days prior thereto in the case of Term Benchmark Loans and,
(ii) no later than 1:00 p.m. New York City time, three (3) RFR Business
Days before the date of prepayment, in case of RFR Loans denominated in Canadian Dollars, and (iii) no later than 1:00 p.m.,
New York City time (or such later time as the Administrative Agent may agree in its sole discretion), on the date of such prepayment in
the case of Base Rate Loans, Canadian Prime Rate Loans or RFR
Loans denominated in Dollars. Each such notice shall specify
the date and amount of prepayment and whether the prepayment is of Term Benchmark Loans, Base Rate
Loans, Canadian Prime Rate Loans or RFR Loans; provided, that if a Term Benchmark Loan is prepaid on any day other than
the last day of the Interest Period applicable thereto, the Applicable
Borrower shall also pay any amounts owing pursuant to Section 4.11. Upon receipt of any such notice the Administrative Agent
shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein (provided, that a notice of prepayment may state that such notice is conditioned upon the
effectiveness of other credit facilities or other financing or events, in which case such notice may be revoked by the Applicable
Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied), together
with (except in the case of Revolving Facility Loans that are
Base Rate Loans, Canadian Prime Rate Loans, RFR Loans and Swingline
Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and Revolving Facility
Loans pursuant to this Section 4.1 shall be in an aggregate principal amount of (a)
if under the Closing Date Revolving Facility the Dollar Equivalent of $500,000 or a whole multiple thereof, or (b) if under the 2024 Canadian
Revolving Facility C$500,000 or a whole multiple thereof. Partial prepayments of Swingline Loans pursuant to this Section 4.1
shall be in an aggregate principal amount of $100,000(x)
the Dollar Equivalent of $100,000 if under the Closing Date Revolving Facility or a whole multiple thereof or (y) C$100,000 if under the
2024 Canadian Revolving Facility or a whole multiple thereof.
(b) Any optional prepayments of the Term Facilities shall be credited to the remaining scheduled installments of the Term Facilities thereof as specified by the Applicable Borrower or, if not specified, pro rata to the remaining installments of each of the Facilities on a pro rata basis.
(c) Notwithstanding the foregoing, a prepayment premium shall apply to any prepayment of Term Loans occurring on or prior to the six (6) month anniversary of the Closing Date, in each case from the proceeds of a Repricing Transaction in an amount equal to 1.00% of the principal amount of any Term Loans subject to such prepayment or, in the case of any Repricing Transaction effected through an amendment, the principal amount of Term Loans outstanding immediately prior to such amendment of any Term Lender that is replaced in connection with such amendment pursuant to the Borrower’s exercise of its mandatory assignment rights to replace a Lender under Section 4.13.
(d) Notwithstanding the above, the Applicable Borrower may at any time and from time to time voluntarily prepay Revolving Facility Loans denominated in Canadian Dollars, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent; provided that, if at such time there exists outstanding Closing Date Revolving Facility Loans denominated in Canadian Dollars and 2024 Canadian Revolving Facility Loans, then the Applicable Borrower shall prepay all outstanding Closing Date Revolving Facility Loans denominated in Canadian Dollars first and, once all such Closing Date Revolving Facility Loans denominated in Canadian Dollars are prepaid in full, the Applicable Borrower may submit a request to prepay the outstanding 2024 Canadian Revolving Facility Loans.
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4.2. Mandatory Prepayments. (a) If at any time after the Closing Date any Group Member receives any Net Cash Proceeds from the Incurrence of any Indebtedness (other than Excluded Indebtedness) or the issuance of any Disqualified Capital Stock, the Borrower shall prepay the Term Loans on a pro rata basis on the date of such receipt in an amount equal to 100% of such Net Cash Proceeds; provided, that if at the time of such prepayment such Group Member is required to prepay any Other Applicable Indebtedness (to the extent and if required by the terms of the definitive documentation governing such other Indebtedness), then the Borrower may apply 100% of such Net Cash Proceeds to prepay the Term Loans and prepay, redeem or repurchase such Other Applicable Indebtedness on a pro rata basis on the date of such receipt; provided, further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall be at par (or less than par), (B) the portion of such prepayment amount allocated to such Other Applicable Indebtedness shall not exceed the amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, (C) the amount of prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(a) shall be reduced accordingly and (D) to the extent the holders of such Other Applicable Indebtedness decline to have such Indebtedness prepaid, redeemed or repurchased, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(b) If at any time after the Closing Date any Group Member receives any Net Cash Proceeds from any Asset Sale or Recovery Event in an amount exceeding $20,000,000 in any fiscal year, then, the Borrower shall (i) if no Reinvestment Notice shall have been delivered in respect thereof, prepay the Term Loans on a pro rata basis on or prior to the third (3rd) Business Day following the date of such receipt in an amount equal to 100% of such excess Net Cash Proceeds (with a step down to 50% based upon the achievement of a Consolidated Net Leverage Ratio of less than or equal to 1.25:1.00) or (ii) if a Reinvestment Notice has been delivered in respect thereof, prepay the Term Loans in an amount equal to the Reinvestment Prepayment Amount, if any, on a pro rata basis on the Reinvestment Prepayment Date; provided, that if at the time of such prepayment the Borrower or such Group Member is required to prepay any Other Applicable Indebtedness (to the extent and if required by the terms of the definitive documentation governing such other Indebtedness), then the Borrower may apply 100% of such excess Net Cash Proceeds (or the Reinvestment Prepayment Amount, as applicable) to prepay the Term Loans and prepay, redeem or repurchase such Other Applicable Indebtedness on a pro rata basis on the date of such receipt; provided, further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall be at par (or less than par), (B) the portion of such prepayment amount allocated to such Other Applicable Indebtedness shall not exceed the amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, (C) the amount of prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(b) shall be reduced accordingly and (D) to the extent the holders of such Other Applicable Indebtedness decline to have such Indebtedness prepaid, redeemed or repurchased, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
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(c)
(i) (A) If at any time after the Closing Date, the aggregate
Closing Date Revolving Facility
Extensions of Credit then outstanding exceed the Closing Date
Revolving Facility Commitments then in effect, the
Applicable Borrower (without notice or demand) shall immediately
prepay the outstanding SwinglineClosing
Date Revolving Facility Loans or Closing Date Revolving
Facility Swingline Loans and pay any unpaid Reimbursement Obligations
(or, if no Swingline Loans orClosing
Date Revolving Facility Swingline Loans are outstanding,
Cash Collateralize outstanding Letters of Credit) in an amount sufficient to eliminate any such excess.,
and (B) if at any time after the First Amendment Effective Date, the aggregate 2024 Canadian Revolving Facility Extensions of Credit then
outstanding exceed the 2024 Canadian Revolving Facility Commitments then in effect, the Canadian Borrower (without notice or demand) shall
immediately prepay outstanding 2024 Canadian Revolving Facility Swingline Loans or 2024 Canadian Revolving Facility Loans in an amount
sufficient to eliminate any such excess.
(ii) If as a result of changes in currency exchange rates, on any Revaluation Date, the aggregate Closing Date Revolving Facility Extensions of Credit then outstanding exceeds the Closing Date Revolving Facility Commitments then in effect by an amount equal to 5.0% or more of the aggregate Closing Date Revolving Facility Commitments then in effect, the Applicable Borrower shall, at the request of the Administrative Agent, within ten (10) days of such Revaluation Date (A) prepay Closing Date Revolving Facility Borrowings or Closing Date Revolving Facility Swingline Borrowings or (B) provide Cash Collateral pursuant to Section 3.7(a), in an aggregate amount such that the aggregate Closing Date Revolving Facility Extensions of Credit then outstanding do not exceed the Closing Date Revolving Facility Commitments then in effect by an amount equal to 5.0% or more of the aggregate Closing Date Revolving Facility Commitments then in effect.
(d) Mandatory prepayments of Term Loans shall be applied first to Base Rate Loans to the full extent thereof and then to Term Benchmark Loans and shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. Each such prepayment shall be credited to the remaining scheduled installments of the Term Facilities thereof as specified by the Borrower or, if not specified, to the remaining scheduled quarterly installments of the Term Loans in direct order of maturity.
(e) The Borrower shall provide the Administrative Agent written notice of any mandatory prepayment of Term Loans required to be made pursuant to Sections 4.2(a) and (b), three (3) Business Days (or with respect to any mandatory prepayments upon the Incurrence of any Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt or other Credit Agreement Refinancing Indebtedness pursuant to Section 4.2(a), one (1) Business Day prior thereto in the case of any Base Rate Loans being prepaid) prior to the date of prepayment (or such later time as the Administrative Agent may agree in its sole discretion), which notice shall specify the date and amount of prepayment; provided, that such notice may be conditioned on consummation of such mandatory prepayment event and receipt of Net Cash Proceeds thereof by the applicable Group Member. Other than with respect to mandatory prepayments upon the Incurrence of any Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt or other Credit Agreement Refinancing Indebtedness pursuant to Section 4.2(a), the applicable Lenders may elect not to accept any mandatory prepayment (each such Lender, a “Declining Lender”) by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m., New York City time, one (1) Business Day prior to the date of such prepayment. Any prepayment amount declined by the Declining Lenders (the “Declined Amount”) shall be retained by the Borrower.
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(f) Notwithstanding any other provisions of this Section 4.2 to the contrary, with respect to any prepayment required pursuant to Section 4.2(a) or (b), if at the time of such prepayment, the Group Member receiving the Net Cash Proceeds (i) is prohibited, restricted or delayed by applicable local law from repatriating such Net Cash Proceeds to the Borrower, the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in Section 4.2(a) or (b) but may be retained by the applicable Group Member so long, but only so long, as the applicable local law will not permit repatriation to the Borrower, and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law, such repatriation will be effected and such repatriated Net Cash Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 4.2(a) or (b) to the extent provided therein or (ii) cannot repatriate such funds to the Borrower without (in the good faith determination of the Borrower) the repatriation of such Net Cash Proceeds (or a portion thereof) that would otherwise be required to be applied pursuant to Section 4.2(a) or (b) resulting in material adverse tax consequences, the Net Cash Proceeds (or portion thereof) so affected may be retained by the applicable Group Member (the Borrower hereby agrees to cause the applicable Group Member to promptly use commercially reasonable efforts to take all actions within the reasonable control of the Borrower that are reasonably required to eliminate such tax effects) until such time as such material adverse costs would not apply to the repatriation thereof, at which time the mandatory prepayments otherwise required by Section 4.2(a) or (b) with respect to such Net Cash Proceeds shall be made.
4.3.
Conversion and Continuation Options. (a) The
Borrower may elect from time to time to convert Term Benchmark Loans denominated
in Dollars to Base Rate Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 12:00
p.m1:00 p.m., New York City time, on the
Business Day precedingof
the proposed conversion date; provided, that any such conversion of Term Benchmark Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time to convert Base Rate Loans to Term Benchmark Loans by giving
the Administrative Agent prior irrevocable notice of such election no later than 1:00 p.m., New York City time, on the secondthird
(2nd3rd)
Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefore);
provided, that no Base Rate Loan under a particular Facility may be converted into a Term Benchmark Loan when any Event of Default
has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined
in its or their sole discretion not to permit such conversions. If the Borrower requests a conversion to Term Benchmark Loans in any such
notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. Upon receipt
of any such notice, the Administrative Agent shall promptly
notify each relevant Lender thereof.
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(b) The Canadian Borrower may elect from time to time to convert Term Benchmark Loans incurred under the 2024 Canadian Revolving Facility denominated in Canadian Dollars to Canadian Prime Rate Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 1:00 p.m., New York City time, on the Business Day of the proposed conversion date; provided, that any such conversion of Term Benchmark Loans may only be made on the last day of an Interest Period with respect thereto. The Canadian Borrower may elect from time to time to convert Canadian Prime Rate Loans to Term Benchmark Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 1:00 p.m., New York City time, on the third (3rd) Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefore); provided, that no Canadian Prime Rate Loan under the 2024 Canadian Revolving Facility may be converted into a Term Benchmark Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions. If the Canadian Borrower requests a conversion to Term Benchmark Loans in any such notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month. Upon receipt of any such notice, the Administrative Agent shall promptly notify each relevant Lender thereof.
(c)
(b) Any Term Benchmark Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Applicable
Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest
Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans; provided, that
no Term Benchmark Loan under a particular Facility may be continued as such when any Event of Default has occurred and is continuing and
the Administrative Agent has, or the Majority Facility Lenders in respect of such Facility have, determined in its or their sole discretion
not to permit such continuations; provided, further, that if the Applicable
Borrower shall fail to give any required notice as described in this Section 4.3(b) or if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring
Interest Period. So long as no Event of Default has occurred and is continuing, if the Applicable
Borrower requests a continuation of Term Benchmark Loans in any such notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one (1) month. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof.
4.4. Limitations on Term Benchmark Loans. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of Term Benchmark Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that,
(a) after giving effect thereto,
(i)
the aggregate principal amount of the Term Benchmark Loans comprising each Term Benchmark Tranche under
the Closing Date Revolving Facility shall be equal to the Dollar
Equivalent of $5,000,000 or a whole multiple of the Dollar
Equivalent of $1,000,000 in excess thereof and ,
(ii) the aggregate principal amount of the Term Benchmark Loans comprising each Term Benchmark Tranche under the 2024 Canadian Revolving Facility denominated in Canadian Dollars shall be equal to C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof, and
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(b) (i)
no more than ten (10) Term Benchmark Tranches shall be outstanding under
the Closing Date Revolving Facility at any one time unless otherwise agreed between the Applicable
Borrower and the Administrative Agent.,
and
(ii) no more than ten (10) Term Benchmark Tranches shall be outstanding under the 2024 Canadian Revolving Facility at any one time unless otherwise agreed between the Canadian Borrower and the Administrative Agent.
4.5.
Interest Rates and Payment Dates; Administrative Agent Fees; Other Fees.
(a) (i) Each Term Benchmark Loan denominated in Dollars
shall bear interest on the outstanding principal amount thereof for each day during each Interest Period with respect thereto
at a rate per annum equal to the Adjusted Term SOFR Rate determined for such day plus the Applicable Margin and,
(ii) each Term Benchmark Loan denominated in Canadian Dollars shall bear
interest on the outstanding principal amount thereof for each day during each Interest Period with respect thereto at a rate per annum
equal to the Adjusted Term XXXXX Rate determined for such day plus the Applicable Margin, (iii) each RFR Loan denominated
in Dollars shall bear interest for each day on which it is outstanding at a rate per annum equal to Adjusted Daily Simple SOFR
plus the Applicable Margin in effect for such day and (iv) each
RFR Loan denominated in Canadian Dollars shall bear interest for each day on which it is outstanding at a rate per annum equal to the
Adjusted Daily Simple XXXXX plus the Applicable Margin in effect for such day.
(b) Each Base Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Base Rate plus the Applicable Margin.
(c) Each Canadian Prime Rate Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the Canadian Prime Rate plus the Applicable Margin.
(d)
(c) (i) If any portion of the principal of any Loan or Reimbursement
Obligation is not paid when due (whether at the stated maturity, by acceleration or otherwise), such portion of such principal shall bear
interest at a rate per annum equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto pursuant to Section
4.5(a) or,
4.5(b) or 4.5(c) plus 2.00% per annum or,
(y) in the case of Reimbursement Obligations denominated in Dollars,
the rate applicable to Base Rate Loans under the Closing Date Revolving
Facility plus 2.00% per annum or (z) in the case of Reimbursement Obligations denominated in Canadian Dollars, the rate applicable to
Term XXXXX Loans under the Closing Date Revolving Facility plus 2.00% per annum and (ii) if all or a portion of any interest
payable on any Loan or Reimbursement Obligation or any commitment fee or other amount payable hereunder is not paid when due (whether
at the stated maturity, by acceleration or otherwise), (x) such
overdue amount denominated in Dollars shall bear interest at
a rate per annum equal to the rate then applicable to Base Rate Loans under the relevantClosing
Date Revolving Facility plus 2.00% per annum (or, in the case of any such other
amounts thatand (y) such overdue amount denominated
in Canadian Dollars shall bear interest at a rate per annum equal to, (A) to the extent such amounts relate exclusively to the 2024 Canadian
Revolving Facility, the rate then applicable to Canadian Prime Rate Loans under the 2024 Canadian Revolving Facility plus 2.00% per annum,
(B) to the extent such amounts relate exclusively to the Closing Date Revolving Facility, the rate then applicable to Term XXXXX Loans
under the Closing Date Revolving Facility plus 2.00% per annum and (C) to the extent such amounts do not relate to a particular
Facility, the rate then applicable to Base Rate Loans under the Revolving Facility plus
2.00% per annum)RFR Loans denominated in Canadian
Dollars, in each case, with respect to both clause (i) and clause (ii)
above, from the date of such non-paymentnon-payment
until such amount is paid in full (as well after as before judgment).
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(e)
(d) Interest shall be payable in arrears on each Interest Payment Date;
provided, that interest accruing pursuant to Section 4.5(cd)
shall be payable from time to time on demand.
(f)
(e) The Borrower agrees to pay,
or cause to be paid, to the Administrative Agent and the Other Representatives any fees in the amounts and on the dates previously
agreed to in writing by the Borrower, the Other Representatives and the Administrative Agent in connection with this Agreement.
4.6.
Computation of Interest and Fees. (a)
Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that,
with respect to Base Rate Loans, the rate of interest on which
is calculated on the basis of the Prime Rate, Canadian Prime Rate Loans,
Term XXXXX Loans or Daily Simple XXXXX Loans, the interest thereon shall be calculated on the basis of a 365- (or 366-, as
the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Applicable
Borrower and the relevant Lenders of each determination of an Adjusted Term SOFR Rate and/or
Adjusted Term XXXXX Rate. Any change in the interest rate on a Loan resulting from a change in the Base Rate or,
the Canadian Prime Rate, the Adjusted Term SOFR Rate, the Adjusted
Term XXXXX Rate or Daily Simple XXXXX, shall become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable notify the Applicable
Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate. Interest shall
accrue on each Loan for each day on which it is made or outstanding, except the day on which it is repaid unless it is repaid on the same
day that it was made.
(b)
Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive
and binding on the Applicable Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Applicable
Borrower, deliver to the Applicable
Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section
4.5(a).
(c) In the event that any financial statement or Compliance Certificate delivered pursuant to Sections 7.1 or 7.2, respectively, is inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin or Commitment Fee Rate for any period (an “Applicable Period”) than the Applicable Margin or Commitment Fee Rate applied for such Applicable Period respectively, then, if such inaccuracy is discovered prior to the termination of this Agreement, (i) the Borrower shall promptly deliver to the Administrative Agent a corrected financial statement and a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin and the Commitment Fee Rate shall be determined based on the corrected Compliance Certificate for such Applicable Period and (iii) the Applicable Borrower shall promptly pay, or cause to be paid, to the Administrative Agent (for the account of the Lenders and the Issuing Lenders during the Applicable Period or their successors and assigns) the accrued additional interest or fees, as applicable, owing as a result of such increased Applicable Margin and Commitment Fee Rate for such Applicable Period. This Section 4.6(c) shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 4.5(b) and Section 9 hereof.
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(d) For the purposes of the Interest Act (Canada) and disclosure thereunder only, whenever any interest or fee payable by any Loan Party is calculated using a rate based on a year of 360 or 365 days, as the case may be, the rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the applicable rate based on a year of 360 days or 365 days, as the case may be, (y) multiplied by the actual number of days in the calendar year in which such rate is to be ascertained and (z) divided by 360 or 365, as the case may be.
(e) If any provision of this Agreement or any other Loan Document would obligate a Canadian Loan Party to make any payment of interest or other amount payable to (including for the account of) any Lender in an amount, or calculated at a rate, that would be prohibited by law or would result in a receipt by such Lender of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada)) then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by such Lender of interest at a criminal rate, such adjustment to be effected, to the extent necessary, as follows: (i) first, by reducing the amount or rate of interest required to be paid to such Lender under this Agreement; and (ii) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid to such Lender that would constitute interest for purposes of Section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if a Lender shall have received an amount in excess of the maximum amount permitted by that section of the Criminal Code (Canada), then the Canadian Loan Party shall be entitled, by notice in writing to such Lender, to obtain reimbursement from such Lender in an amount equal to such excess, and pending such reimbursement, such amount shall be deemed to be an amount payable by such Lender to the Canadian Loan Party. Any amount or rate of interest referred to in this Agreement with respect to the Commitments to make Loans to the Loan Parties shall be determined in accordance with generally accepted actuarial practices and principles as an effective annual rate of interest over the term that the Commitments to make Loans to the Loan Parties remains outstanding on the assumption that any charges, fees or expenses that fall within the meaning of “interest” (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of time, be pro-rated over that period of time and otherwise be pro-rated over the period during which such applicable Commitments are available and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Administrative Agent shall be conclusive for the purposes of such determination.
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4.7. Inability to Determine Interest Rate.
(a)
Subject to clauses (b), and
(c), (d), (e) and (f) of this Section 4.7, if:
(i)
the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error) (A) prior to the
commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the
Adjusted Term SOFR Rate or the Adjusted Term XXXXX Rate (including
because the Term SOFR Referenceapplicable
Relevant Screen Rate is not available or published on a current basis), for Dollars
or Canadian Dollars, as applicable, and such Interest Period or (B) at any time, that adequate and reasonable means do not
exist, for ascertaining a
Borrowing denominated in Dollars or Canadian Dollars, as applicable, for the applicable Adjusted Daily Simple
SOFRRFR; or
(ii)
the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term
Benchmark Borrowing, the Adjusted Term SOFR Rate or the Adjusted Term
XXXXX Rate for Dollars or Canadian Dollars, as applicable, and for such Interest Period will not adequately and fairly reflect
the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for Dollars
or Canadian Dollars, as applicable, and such Interest Period or (B) at any time, Adjusted Daily Simple
SOFRRFR will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such borrowingBorrowing
for Dollars or Canadian Dollars, as applicable;
then the Administrative Agent shall give notice thereof to the Applicable Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter. If such notice is given with respect to any Loan denominated in Dollars (A) any Term Benchmark Loan under the relevant Facility requested to be made on the first day of such Interest Period shall be made as an RFR Loan so long as Adjusted Daily Simple SOFR is not also the subject of Section 4.7(a)(i) or (ii) above, or a Base Rate Loan if Adjusted Daily Simple SOFR also is the subject of Section 4.7(a)(i) or (ii) above, (B) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to Term Benchmark Loans shall be continued as RFR Loans so long as Adjusted Daily Simple SOFR is not also the subject of Section 4.7(a)(i) or (ii) above, or a Base Rate Loan if Adjusted Daily Simple SOFR also is the subject of Section 4.7(a)(i) or (ii) above, and (C) any outstanding Term Benchmark Loans under the relevant Facility shall be converted, on the last day of the then current Interest Period, to an RFR Loan so long as Adjusted Daily Simple SOFR is not also the subject of Section 4.7(a)(i) or (ii) above, or a Base Rate Loan if Adjusted Daily Simple SOFR also is the subject of Section 4.7(a)(i) or (ii) above. If such notice is given with respect to any Revolving Facility Loan denominated in Canadian Dollars, any requests for the conversion of any Revolving Facility Borrowing to, or continuation of any Revolving Facility Borrowing as, a Term Benchmark Borrowing and any borrowing request that requests a Term Benchmark Borrowing, in each case, for the relevant Benchmark, shall be ineffective. Furthermore, if any Term Benchmark Loan in Canadian Dollars is outstanding on the date of the Applicable Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 4.7 with respect to the Term XXXXX Reference Rate applicable to such Term Benchmark Loan denominated in Canadian Dollars, then until (x) the Administrative Agent notifies the Applicable Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Applicable Borrower delivers a notice in accordance with the terms of Section 3.2(1) or a new borrowing request in accordance with the terms of Section 3.2(1), for Loans denominated in Canadian Dollars (1) any Term Benchmark Loan shall, on the last day of the Interest Period applicable to such Loan be made as an RFR Loan so long as the applicable Adjusted Daily RFR for Canadian Dollar Loans is not also the subject of Section 4.7(a)(i) or (ii) above, or a Canadian Prime Loan if the applicable Adjusted Daily RFR for Canadian Dollar Loans is also the subject of Section 4.7(a)(i) or (ii) above and (2) any RFR Loan shall bear interest at the Canadian Prime Rate for Canadian Dollars plus the Applicable Margin, if the applicable Adjusted Daily RFR for Canadian Dollar Loans is also the subject of Section 4.7(a)(i) or (ii) above. Until such notice has been withdrawn by the Administrative Agent no further Term Benchmark Loans under the relevant Facility shall be made or continued as such, nor shall the Applicable Borrower have the right to convert Loans under the relevant Facility to Term Benchmark Loans.
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(b) Solely as to Loans denominated in Dollars:
(i) (b) Notwithstandingnotwithstanding
anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date
have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement
is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date,
such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark
setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement
or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark
Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder
and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th)
Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action
or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such
time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each affected Class.;
(ii)
(c) Notwithstandingnotwithstanding
anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right, in consultation with the
Applicable Borrower, to make Benchmark Replacement Conforming
Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing
such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement
or any other Loan Document.;
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(iii)
(d) Thethe
Administrative Agent will promptly notify the Borrower and the Lenders of (iA)
any occurrence of a Benchmark Transition Event, (iiB)
the implementation of any Benchmark Replacement, (iiiC)
the effectiveness of any Benchmark Replacement Conforming Changes, (ivD)
the removal or reinstatement of any tenor of a Benchmark pursuant to clause (fiv)
below and (vE)
the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the
Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 4.7(b),
including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance
or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error
and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document,
except, in each case, as expressly required pursuant to this Section 4.7.(b);
(iv)
(e) Notwithstandingnotwithstanding
anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark
Replacement), (1) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (a) any tenor for such Benchmark
is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative
Agent in its reasonable discretion or (b) the regulatory supervisor for the administrator of such Benchmark has provided a public statement
or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative
Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable
or non-representative tenor and (2) if a tenor that was removed pursuant to clause (1) above either (a) is subsequently displayed on a
screen or information service for a Benchmark (including a Benchmark Replacement) or (b) is not, or is no longer, subject to an announcement
that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may
modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed
tenor.; and
(v)
(f) Uponupon,
the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for
(i) a Term Benchmark Borrowing or conversion to or continuation
of Term Benchmark Loans to be made, converted or continued, or (ii) a
RFR Borrowing or conversion to RFR Loans, during any Benchmark Unavailability Period and, failing that, either
(1) the Applicable Borrower will be deemed to have
converted any request for a Term Benchmark Loan denominated in Dollars
into a request for a Borrowing of or conversion to (A) an RFR Loan so long as the
Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) a Base Rate Loan if Adjusted Daily Simple
SOFR is the subject of a Benchmark Transition Event. During any Benchmark Unavailability Period or at any time that a tenor for the then-current
Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark,
as applicable, will not be used in any determination of Base Rate. Furthermore, if any Term Benchmark Loan or
RFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability
Period with respect to Adjusted Term SOFR Ratea
given Benchmark, then until such time as a Benchmark Replacement is implemented pursuant to this Section 4.7(b),
for Loans denominated in Dollars (1) any Term Benchmark Loan
shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute,
(x) an RFR LoanBorrowing
denominated in Dollars so long as the Adjusted Daily
Simple SOFRRFR
for Dollar Borrowings is not the subject of a Benchmark Transition Event or (y) a Base Rate Loan if the
Adjusted Daily Simple SOFRRFR
for Dollar Borrowings is the subject of a Benchmark Transition Event, on such day and
(2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute a Base Rate Loan.
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(c) Solely as to Loans denominated in Canadian Dollars:
(i) notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (Toronto time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is Adjusted Daily Simple XXXXX, all interest payments will be payable on the last day of each March, June, September and December;
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(ii) in connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right, in consultation with the Canadian Borrower, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document;
(iii) the Administrative Agent will promptly notify the Canadian Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement and (iii) the effectiveness of any Benchmark Replacement Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Canadian Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (iv) below and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 4.7(c) including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 4.7(c);
(iv) notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (1) if the then-current Benchmark is a term rate (including Term XXXXX) and either (a) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (b) the regulatory supervisor for the administrator of such Xxxxxxxxx has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (2) if a tenor that was removed pursuant to clause (1) above either (a) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (b) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor; and
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(v) upon the Canadian Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Canadian Borrower may revoke any request for (i) a Term Benchmark Borrowing in Canadian Dollars or conversion to or continuation of Term Benchmark Loans in Canadian Dollars to be made, converted or continued, or (ii) a RFR Borrowing in Canadian Dollars or a conversion to RFR Loans in Canadian Dollars, during any Benchmark Unavailability Period and, failing that, the Canadian Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to, (i) for a Benchmark Unavailability Period in respect of Term XXXXX, Daily Simple XXXXX, and (ii) for a Benchmark Unavailability Period in respect of a Benchmark other than Term XXXXX, Canadian Prime Rate Loans; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Canadian Prime Rate cannot be determined, (x) any outstanding affected Term Benchmark Loans denominated in Canadian Dollars shall, at the Borrower’s election prior to such day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in Canadian Dollars shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time and (y) any outstanding affected RFR Loans denominated in Canadian Dollars, at the Borrower’s election, shall either (A) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of Canadian Dollars) immediately or (B) be prepaid in full immediately.
4.8.
Pro Rata Treatment and Payments.
(a) Each borrowing by the Applicable Borrower
from the Lenders hereunder, each payment by the Applicable Borrower
on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective
Term Percentages or,
Closing Date Revolving Facility Percentages or 2024 Canadian
Revolving Facility Percentages, as the case may be of the relevant Lenders. (b)Each
payment (including each prepayment but excluding any purchase of Loans pursuant to Section 11.6(g), the implementation of any Incremental
Term Facility pursuant to Section 4.17, extension of Term Loans pursuant to Section 4.18 or any refinancing of Term Loans pursuant to
Section 4.19) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the
respective outstanding principal amounts of the Term Loans then held by the Term Lenders. Amounts prepaid on account of the Term Loans
may not be reborrowed.
(b)
(c) (1) Each
payment (including each prepayment but excluding the implementation of any Incremental Revolving Facility pursuant to Section 4.17, any
extension of Closing Date Revolving Facility
Loans or Closing Date Revolving Facility Commitments
pursuant to Section 4.18 or any refinancing of Closing Date Revolving
Facility Loans or Closing
Date Revolving Facility Commitments pursuant to Section 4.19) by the Applicable
Borrower on account of principal of and interest on the Closing
Date Revolving Facility Loans shall be made pro
rata according to the respective outstanding principal amounts of the Closing
Date Revolving Facility Loans then held by the RevolvingClosing
Date Revolving Facility Lenders, and (2) each payment (including each prepayment but excluding the implementation of any Incremental Revolving
Facility pursuant to Section 4.17, any extension of 2024 Canadian Revolving Facility Loans or 2024 Canadian Revolving Facility Commitments
pursuant to Section 4.18 or any refinancing of 2024 Canadian Revolving Facility Loans or 2024 Canadian Revolving Facility Commitments
pursuant to Section 4.19) by the Canadian Borrower on account of principal of and interest on the 2024 Canadian Revolving Facility Loans
shall be made pro rata according to the respective outstanding principal amounts of the 2024 Canadian Revolving Facility Loans
then held by the 2024 Canadian Revolving Facility Lenders.
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(c)
(d) All payments (including prepayments) to be made by the Borrower (i)
Except with respect to payments of principal of, interest on, and fees related to Loans and Commitments denominated in Canadian Dollars
(which, for the avoidance of doubt, shall be made in Canadian Dollars), all payments required to be made hereunder,
(whether on account of principal, interest,
fees or otherwise,)
shall be made in immediately available funds and without setoff
or counterclaim and shall be made prior to 1:00 p.m., New York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Funding Office, in Dollars and (ii) all
payments (including prepayments and repayments) with respect to principal of, interest on, and fees related to Loans or Commitments denominated
in Canadian Dollars, whether on account of principal, interest, fees or otherwise, shall be made in immediately available funds
and without setoff or counterclaim and shall be made prior to 1:00 p.m.,
Toronto time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Canadian
Dollars. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received.
If any payment hereunder (other than payments on the Term Benchmark Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day. If any payment on a Term Benchmark Loan becomes due and payable on
a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding
Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall
be payable at the then applicable rate during such extension. Without
limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the
United States. If, for any reason, the Applicable Borrower is prohibited by any law from making any required payment hereunder in Canadian
Dollars, such Borrower shall make such payment in Dollars in the Dollar Equivalent of Canadian Dollars payment amount.
(d)
(e) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available
to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Applicable
Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal
to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation for the period until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Section 4.8(e)
shall be conclusive in the absence of manifest error. If such Xxxxxx’s share of such borrowing is not made available to the Administrative
Agent by such Lender within three (3) Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum applicable to Base Rate Loans or
Canadian Prime Rate Loans under the relevant Facility, on demand, from the Applicable
Borrower.
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(e)
(f) Unless the Administrative Agent shall have been notified in writing
by the Applicable Borrower prior to the date of any payment
due to be made by the Applicable Borrower hereunder that the
Applicable Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that the Applicable Borrower
is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available
to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent
by the Applicable Borrower within three (3) Business Days after
such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available
pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective
Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Applicable
Borrower.
4.9. Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof, or compliance by any Lender or the Administrative Agent with any request or directive whether or not having the force of law from any central bank or other Governmental Authority made subsequent to the date such Lender or the Administrative Agent, as applicable, becomes a party hereto:
(i) shall subject any Lender or the Administrative Agent to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses
(ii) through (ivv)
of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or
other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii) shall impose, modify or hold applicable any reserve, liquidity requirements, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender or the Administrative Agent, by an amount that such Lender or the Administrative Agent, as applicable, reasonably deems to be material, of making, converting into, continuing or maintaining Term Benchmark Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Applicable Borrower shall promptly pay such Lender or the Administrative Agent, upon its written demand (accompanied by a certificate of the type described in Section 4.9(c)), any additional amounts necessary to compensate such Lender or the Administrative Agent for such increased cost or reduced amount receivable. If any Lender or the Administrative Agent becomes entitled to claim any additional amounts pursuant to this Section 4.9(a), it shall promptly notify the Applicable Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.
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(b) If any Lender shall have reasonably determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy or liquidity requirements whether or not having the force of law from any Governmental Authority made subsequent to the date such Lender becomes a party hereto shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity requirements and such Lender’s desired return on capital) by an amount reasonably deemed by such Lender to be material, then from time to time, after submission by such Lender to the Applicable Borrower (with a copy to the Administrative Agent) of a written request (accompanied by a certificate of the type described in clause (c) below) therefor, the Applicable Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction. For purposes of this Agreement, and notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be have been enacted, adopted or issued after the date each Lender has become a party hereto, regardless of the date such act, requests, rules, regulations, guidelines or directives enacted, adopted or issued. Notwithstanding anything contained in the foregoing provisions, no Lender shall be entitled to any compensation from the Applicable Borrower under this Section 4.9 unless such Lender is generally charging the relevant amounts to similarly situated borrowers under comparable syndicated credit facilities as a matter of general practice and policy.
(c) A certificate as to any additional amounts payable pursuant to this Section 4.9 submitted by any Lender to the Applicable Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section 4.9, the Applicable Borrower shall not be required to compensate a Lender pursuant to this Section 4.9 for any amounts Incurred more than six (6) months prior to the date that such Lender notifies the Applicable Borrower of such Xxxxxx’s intention to claim compensation therefor; provided, that, if the circumstances giving rise to such claim have a retroactive effect, then such six (6)-month period shall be extended to include the period of such retroactive effect. The obligations of the Applicable Borrower pursuant to this Section 4.9 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
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4.10. Taxes. (a) For purposes of this Section and the definitions referenced herein, the term (i)“Lender” includes any Issuing Lender and any Swingline Lender or any other recipient of a payment under this Agreement, and the term “applicable law” includes FATCA and (ii) the term “Borrower” includes the Canadian Borrower (unless specifically indicated otherwise).
(b) Any and all payments made under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is a Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 4.10) the Administrative Agent or Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(c) The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent reimburse it for the payment of, any Other Taxes.
(d) Whenever any Taxes are payable by or on account of a Loan Party, as promptly as possible thereafter the Borrower shall send to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (A), (B) and (D) of Section 4.10(e)(ii)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
109
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person, and solely with respect to a Loan or Commitment extended to the Borrower (in the case of each reference to the “Borrower” in this Section 4.10(e)(ii), excluding the Canadian Borrower),
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or about the date on which such Xxxxxx becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Lender that is not a U.S. Person (a “Non-U.S. Lender”) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
| (a) | in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; |
| (b) | executed copies of IRS Form W-8ECI; |
| (c) | in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W 8BEN-E; or |
110
| (d) | to the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-3 or Exhibit H-4, IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 on behalf of each such direct and indirect partner; |
(C)
any Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or about the date on which such Foreignforeign
Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal
withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower
or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Xxxxxx’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(f) If any Lender or the Administrative Agent determines, in its reasonable discretion, that it has received a refund of any Indemnified Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 4.10, it shall promptly pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 4.10 with respect to the Indemnified Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of the Administrative Agent or such Xxxxxx, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 4.10(f), in no event will any Lender or the Administrative Agent be required to pay any amount to any Loan Party under this Section 4.10(f) the payment of which would place such Lender or the Administrative Agent in a materially less favorable net after-Tax position than such Lender or the Administrative Agent would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 4.10(f) shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(g) The Borrower and each other Loan Party shall indemnify each Lender and the Administrative Agent within twenty (20) days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 4.10) paid or payable by such Lender or the Administrative Agent or any of their respective Affiliates, as applicable, or required to be withheld or deducted from a payment to such Lender or the Administrative Agent or any of their respective Affiliates, as applicable, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, that neither the Borrower nor any other Loan Party shall be obligated to make payment to any Lender or the Administrative Agent, as applicable, pursuant to this Section 4.10(g) in respect of penalties, interest or other similar liabilities attributable to such Indemnified Taxes if such penalties, interest or other similar liabilities are attributable to the gross negligence or willful misconduct of such Lender or the Administrative Agent, as the case may be, seeking indemnification, as determined in a final, non-appealable judgment of a court of competent jurisdiction. An original official receipt, or certified copy thereof, as to the amount of such payment, delivered to the Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of any such Person, shall be conclusive absent manifest error.
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(h) The agreements in this Section 4.10 shall survive resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments or this Agreement and the repayment, satisfaction or discharge of the Loans, Obligations and all other amounts payable under any Loan Document.
4.11. Indemnity. For purposes of this Section, the term “Borrower” means the Applicable Borrower. The Borrower agrees to indemnify each Lender, upon its written request (which request shall set forth in reasonable detail the basis for requesting such compensation and the calculation of the amount of such compensation), for all actual losses, expenses and liabilities (including any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Term Benchmark Loans but excluding loss of anticipated profits) that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Term Benchmark Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from Term Benchmark Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Term Benchmark Loans on a day that is not the last day of an Interest Period with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section 4.11 submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
4.12. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 4.9, 4.10(b) or 4.15 with respect to such Lender, it will, if requested by the Applicable Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans or Letters of Credit affected by such event with the object of avoiding the consequences of such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory disadvantage; provided, further, that nothing in this Section 4.12 shall affect or postpone any of the obligations of the Applicable Borrower or the rights of any Lender pursuant to Section 4.9, 4.10(b) or 4.15. Subject to the terms and conditions set forth in Section 10.7, the Applicable Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
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4.13. Replacement of Lenders. For purposes of this Section, the term “Borrower” means the Applicable Borrower.
.
(a) The Borrower may replace (at its sole expense and effort), with a replacement financial lender reasonably satisfactory
to the Administrative Agent, any Lender that (x) requests payment of any amounts payable under Section 4.9, 4.10(b) or 4.15, (y) is a
Defaulting Lender hereunder or (z) declines to deliver any requested consent to a waiver, amendment or other modification of any provision
of the Loan Documents that has been consented to by the Borrower, the Administrative Agent, the Required Lenders and, if otherwise required,
the Majority Facility Lenders (any such Lender who does not agree to such consent, waiver or other modification, a “Non-Consenting
Lender”), but only if (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default has occurred
and is continuing at the time of such replacement, (iii) prior to any such replacement, such Lender has taken no action under Section
4.12 so as to eliminate the demand or condition giving rise to the Borrower’s replacement right, (iv) the replacement lender purchases,
at par, all Loans and other amounts owing to the replaced Lender on or prior to the date of replacement and assumes all obligations of
the replaced Lender under the Loan Documents in accordance with Section 11.6 (except that the Borrower shall pay the registration and
processing fee referred to therein), (v) the Borrower compensates the replaced Lender under Section 4.11 if any Term Benchmark Loan outstanding
to the replaced Lender is purchased other than on the last day of the Interest Period relating thereto, (vi) in the case of any such replacement
resulting from a claim for compensation under Section 4.9 or Section 4.10, such replacement will result in a reduction in such compensation
or payments thereafter, and (vii) the Borrower shall pay the replaced Lender all amounts payable under Section 4.9 or Section 4.10. Notwithstanding
the foregoing, all rights and claims of the Borrower, the Administrative Agent and the Lenders against any replaced Xxxxxx that has defaulted
in its obligation to make Loans hereunder shall be in all respects and unaffected by the replacement of such Lender.
(b) If the Borrower is unable to find a replacement for any Non-Consenting Lender, the Borrower may purchase the outstanding principal of its Loans of the relevant Class or Classes, in each case, subject to the terms and conditions set forth in Section 11.6(g).
4.14. Evidence of Debt. For purposes of this Section, the term “Borrower” includes the Canadian Borrower.
.
(a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing
Indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time under this Agreement.
(b) The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 11.6(b), and a sub-account therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type of such Loan and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Xxxxxx’s share thereof.
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(c) The entries made in the Register and the accounts of each Lender maintained pursuant to Section 4.14(a) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded, but the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.
(d)
The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing any Term Loans, Closing
Date Revolving Facility Loans, 2024 Canadian Revolving Facility
Loans, Closing Date Revolving Facility Swingline Loans or 2024
Canadian Revolving Facility Swingline Loans, as the case may be, of such Lender, substantially in the forms of Exhibit G-1,
G-2-2-1, G-2-2,
G-3-1 or G-3-3-2,
respectively, with appropriate insertions as to date and principal amount.
4.15.
Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful
for any Lender to make or maintain Term Benchmark Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder
to make Term Benchmark Loans, continue Term Benchmark Loans as such and convert Base Rate Loans to Term Benchmark Loans shall forthwith
be canceled and (b) such Lender’s Loans then outstanding as Term Benchmark Loans, if any, shall be converted automatically to RFR
Loans (unless it shall be unlawful at such time for such Lender to make or maintain RFR Loans) or,
Base Rate Loans or Canadian Prime Rate Loans (at the Applicable
Borrower’s election) on the respective last days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law. If any such conversion of a Term Benchmark Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Applicable Borrower
shall pay to such Lender such amounts, if any, as may be required pursuant to Section 4.11.
4.16. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Facility Commitment of such Defaulting Lender pursuant to Section 3.5;
(b) the Aggregate Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, the Required Lenders or the Majority Facility Lenders under any Facility have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 11.1); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders under Section 11.1;
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(c) if any Swingline Exposure or any L/C Obligations exists at the time a Lender becomes a Defaulting Lender then:
(i) all or any part of such Defaulting Lender’s Swingline Exposure and L/C Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Facility Percentages but only to the extent (x) the sum of all Non-Defaulting Lenders’ Revolving Facility Extensions of Credit plus such Defaulting Lender’s Swingline Exposure and L/C Obligations does not exceed the total of all Non-Defaulting Lenders’ Revolving Facility Commitments, (y) the sum of the Revolving Facility Extensions of Credit, Swingline Exposure and L/C Obligations of any Non-Defaulting Lender does not exceed such Non-Defaulting Lender’s Revolving Facility Commitment and (z) no Event of Default shall have occurred and be continuing at such time;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Applicable Borrower shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and any unpaid Reimbursement Obligations and (y) second, Cash Collateralize such Defaulting Lender’s remaining L/C Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 3.7(a) for so long as such L/C Obligations are outstanding;
(iii) if the Applicable Borrower Cash Collateralizes any portion of such Defaulting Lender’s L/C Obligations pursuant to Section 4.16(c)(ii) and Section 3.7(a), the Applicable Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 3.9(a) or (b) with respect to such Defaulting Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligations are cash collateralized;
(iv) if the L/C Obligations of the Non-Defaulting Lenders is reallocated pursuant to Section 4.16(c)(i), then the fees payable to the Lenders pursuant to Section 3.9(a) shall be adjusted in accordance with such Non-Defaulting Lenders’ Revolving Facility Percentages; or
(v) if any Defaulting Lender’s L/C Obligations are neither cash collateralized nor reallocated pursuant to Section 4.16(c)(i) or (ii), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such L/C Obligations) and letter of credit fees payable under Section 3.9(a) with respect to such Defaulting Lender’s L/C Obligations shall be payable to the applicable Issuing Lenders until such L/C Obligations are cash collateralized and/or reallocated;
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and each Issuing Lender shall not be required to issue, amend, extend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateral will be provided by the Applicable Borrower in accordance with Section 4.16(c) and Section 3.7(a), and participating interests in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in a manner consistent with Section 4.16(c)(i) (and Defaulting Lenders shall not participate therein); and
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(e) in the event and on the date that each of the Administrative Agent, the Applicable Borrower, the Issuing Lenders and the Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and L/C Obligations of the other Lenders shall be readjusted to reflect the inclusion of such Xxxxxx’s Revolving Facility Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Facility Percentage; provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Applicable Borrower while that Lender was a Defaulting Lender; provided, further, that, subject to Section 11.23, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender.
4.17.
Incremental Facilities. (a) So
long as no Event of Default exists or would arise therefrom, the Borrower (or,
solely in respect of an Incremental Revolving Facility that increases the Total 2024 Canadian Revolving Facility Commitments, the Canadian
Borrower) shall have the right, at any time and from time to time after the Closing Date to (i) request new term loan commitments
under one or more new term loan credit facilities to be included in this Agreement and/or increase the principal amount of any Class of
Term Loans (each, an “Incremental Term Facility” and, collectively, the “Incremental
Term Loan Commitments”) and/or,
(ii) increase the Total Revolving Commitment (eachClosing
Date Revolving Facility Commitments and/or (iii) increase the Total 2024 Canadian Revolving Facility Commitments (each increase described
in the foregoing clauses (ii) and (iii), an “Incremental Revolving Facility”
and, such commitments, the “Incremental Revolving Facility
Commitments” and, together with the Incremental Term Loan Commitments, the
“Incremental Commitments” and, together with any Incremental Term Facility,
“Incremental Facilities”; and the loans thereunder, “Incremental
Revolving Facility Loans”
and, together with any Incremental Term Loans, “Incremental Loans”) so long
as the aggregate outstanding principal amount of all unutilized Incremental Commitments and Incremental Loans does not exceed the Incremental
Amount; provided that, (A) after giving pro forma effect
to any Incurrence or discharge of Indebtedness on the date the applicable Incremental Commitment Agreement becomes effective (subject
to Section 1.3) and all related transactions as if completed on the first day of the twelve (12)-month period ending on the most recent
Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required
on the Test Date) (and the Borrower shall deliver a certificate, on or prior to the date on which such Incremental Commitment shall become
effective to the Administrative Agent certifying that the Borrower is in compliance with this Section 4.17) and
(B) the aggregate principal amount of all Incremental Revolving Facilities incurred in the form of an increase of the Total 2024 Canadian
Revolving Facility Commitments shall not exceed C$75,000,000. Any Incremental Term Loan Commitment Incurred in the form of
increases to any Class of existing Term Loans shall be identical to (other than (x) with respect to “original issue discount”
or upfront fees and (y) any increase to the scheduled amortization payments applicable to any Class of Term Loans necessary to make such
Incremental Term Loan fungible with any Class of existing Term Loans) and form part of such Term Loans. Any Incremental Closing
Date Revolving Facility Commitments shall be Incurred
in the form of increases to the Closing Date Revolving Facility
Commitments and shall be identical to (other than with respect to upfront fees) and form part of suchthe
Closing Date Revolving Facility. Any Incremental 2024 Canadian
Revolving Facility Commitments shall be Incurred in the form of increases to the 2024 Canadian Revolving Facility Commitments and shall
be identical to (other than with respect to upfront fees) and form part of the 2024 Canadian Revolving Facility.
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(b) Each request from the Applicable Borrower pursuant to this Section 4.17 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”) subject, (i) in respect of any Additional Lender not already a Lender hereunder or an affiliate of a Lender hereunder, to the Applicable Borrower’s consent (such consent not to be unreasonably withheld or delayed) and (ii) in the case of any Incremental Revolving Facility Commitments (if such Additional Lender is not already a Lender hereunder or any affiliate of a Lender hereunder) to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed). Any allocation of any Incremental Commitments to any Affiliated Lender shall be subject to the terms of Section 11.6(g).
(c)
No Incremental Commitment or Incremental Loans shall be effective unless the Applicable
Borrower delivers to the Administrative Agent an Incremental Commitment Agreement executed and delivered by the Applicable
Borrower and the proposed Additional Lenders and such other documentation relating thereto as the Administrative Agent may
reasonably request. Notwithstanding anything in Section 11.1 to the contrary, an Incremental Commitment Agreement may, without the consent
of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Applicable
Borrower and the Administrative Agent, to effect the provisions of this Section 4.17; provided, however,
that (i) subject to Section 4.20, (A) the Incremental
Term Loan Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary
GuarantorsLoan Parties, and will be unsecured
or secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Loans;
provided that, no Incremental Facility (other than an Incremental Revolving Facility that increases the Total 2024 Canadian Revolving
Facility Commitments) will be guaranteed by any Subsidiary that does not also guarantee the U.S. Secured Obligations, (B) the
Incremental Term Loan Commitments and any incremental loans drawn thereunder (the “Incremental
Term Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the
Loans hereunder and (C) no Incremental Commitment Agreement may provide for any Incremental Commitment or any Incremental Term Loans to
be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans; provided
that, no Incremental Facility (other than an Incremental Revolving Facility that increases the Total 2024 Canadian Revolving Facility
Commitments) may be secured by any assets that do not also secure the U.S. Secured Obligations; (ii) no Lender will be
required to provide any such Incremental Commitment unless it so agrees; (iii) the interest rate margins, upfront fees, original
issue discount, any interest rate floors, amortization (subject to clause (v) below) and any customary arrangement or commitment fees
applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional
Lenders; provided, that in the event that the All-In Yield for any Incremental Term Facility incurred by the Borrower on or prior
to the date that is eighteen (18) months after the Closing Date is higher than the All-In Yield for any existing Term Loans hereunder
by more than 50 basis points, then the Applicable Margin for such Term Loans shall be increased to the extent necessary so that the All-In
Yield for such Term Loans is equal to the All-In Yield for such Incremental Term Facility minus 50 basis points (the adjustment
set forth in this proviso, the “MFN Adjustment”); (iv) such Incremental Commitment Agreement may provide for the
inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche
hereunder and may provide class protection for any additional credit facilities in a manner consistent with those provided pursuant to
the provisions of Section 11.1 as in effect on the Closing Date; (v) the final maturity date of any Incremental Loans or Incremental Commitments
shall be no earlier than the Latest Maturity Date and the Weighted Average Life to Maturity of any Incremental Loans made pursuant to
Incremental Term Loan Commitments shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans; (vi) the
prepayment provisions shall be determined by the Applicable Borrower
and the applicable Additional Lenders; provided that they shall not be more favorable (taken as a whole) than the prepayment provisions
applicable to the Term Loans; (vii) if such Incremental Loans or Incremental Commitment shall be secured on a junior basis, a Senior Representative
validly acting on behalf of the holders of such Indebtedness shall have become party to an Intercreditor Agreement; and (viii) the
other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect
to the Incremental Commitment Agreement, shall otherwise be reasonably satisfactory to the Administrative Agent.
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(d) The Administrative Agent shall promptly notify each Lender whenever any Incremental Commitment becomes effective.
(e) No Incremental Commitment Agreement shall become effective unless the Administrative Agent has received (i) a certificate executed by a Responsible Officer of the Applicable Borrower to the effect that no Event of Default has occurred and is continuing (subject to Section 1.3), and (ii) such additional Security Documents, customary legal opinions, board resolutions, certificates and other documentation (consistent in all material respects with the documents delivered under Section 6.1 on the Closing Date) as may be required by such Incremental Commitment Agreement or reasonably requested by the Administrative Agent.
(f)
Upon the implementation of any Incremental Revolving Facility pursuant to this Section 4.17 with
respect to any Revolving Facility, (i) each Revolving Facility
Lender under such Revolving Facility immediately
prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility
Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a
portion of such Revolving Facility Xxxxxx’s participations
hereunder in outstanding Letters of Credit, if applicable,
and Swingline Loans incurred under such Revolving Facility such
that, after giving effect to each deemed assignment and assumption of participations, all of thesuch
Revolving Facility Lenders’ (including each relevant
Incremental Revolving Facility Lender) (A) participations hereunder in Letters of Credit,
if applicable, and (B) participations hereunder in Swingline Loans incurred
under such Revolving Facility shall be held on a pro rata basis on the basis of their respective Revolving Facility
Commitments corresponding to such Revolving Facility (after
giving effect to any increase in the Revolving Facility Commitment
corresponding to such Revolving Facility pursuant to this Section
4.17) and (ii) the existing Revolving Facility Lenders under
such Revolving Facility shall assign Revolving Facility Loans
incurred under such Revolving Facility to certain other Revolving
Facility Lenders under
such Revolving Facility (including the Revolving Facility Lenders
under such Revolving Facility providing the relevant Incremental
Revolving Facility), and such other Revolving Facility Lenders
under such Revolving Facility (including the Revolving Facility
Lenders under such Revolving Facility providing
the relevant Incremental Revolving Facility) shall purchase such Revolving Facility
Loans, in each case to the extent necessary so that all of the Revolving Facility
Lenders under such Revolving Facility participate
in each outstanding borrowing of Revolving Facility Loans incurred
under Revolving Facility pro rata on the basis of their respective Revolving Facility
Commitments corresponding to such Revolving Facility (after
giving effect to any increase in the Revolving Facility Commitment
corresponding to such Revolving Facility pursuant to this Section
4.17); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained
elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
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(g) Subject to Section 1.3, each Incremental Commitment Agreement shall contain representations and warranties by the Applicable Borrower substantially in the form of those made by the Applicable Borrower in this Agreement, except for any exceptions, disclosures or modifications reasonably acceptable to the Administrative Agent, the Applicable Borrower and the Additional Lender(s) making an Incremental Commitment pursuant to such Incremental Commitment Agreement; provided that, in the event that any Incremental Facility is used to finance a Limited Condition Transaction and to the extent the Additional Lenders participating in such Incremental Facility agree, such representations and warranties shall be limited to customary “specified representations”.
(h) In connection with any Incremental Commitment Agreement pursuant to this Section 4.17, at the direction and as reasonably requested by Administrative Agent to ensure the continuing priority of the Lien of the Mortgages as security for the Loans, on or prior to a date reasonably agreed by the Administrative Agent (which, for the avoidance of doubt, may be on or after the date of effectiveness of the Incremental Commitment Agreement), (A) the Borrower or Loan Party party to the Mortgages shall enter into, and deliver to the Administrative Agent a Modification and (B) Borrower shall deliver, or cause the title company or local counsel, as applicable, to deliver, to the Administrative Agent local counsel opinions, an endorsement to the relevant title policies, date down(s) or other documents, instruments or evidence of the priority of the Lien of the Mortgages as security for the Loans, each in form and substance reasonably satisfactory to Administrative Agent. In addition, as reasonably requested by the Administrative Agent, the Borrower shall deliver an updated flood hazard certificate for each of the Mortgaged Properties located in the United States.
(i) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans in the form of an increase to any Class of existing Term Loans, when originally made, are included in each Borrowing of such Class of existing Term Loans on a pro rata basis. Each of the parties hereto hereby further agrees that, upon the effectiveness of any Incremental Commitment Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of or be consistent with this Section 4.17. Any such amendment shall be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
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(j) This Section 4.17 shall supersede any provisions in Section 4.8 or Section 11.1 to the contrary.
4.18.
Extension Amendments. (a) The Applicable
Borrower may at any time and from time to time request that all or a portion, including one or more Tranches, of any commitments
or the Loans (including any Extended Loans), each existing at the time of such request (each, an “Existing
Tranche” and, the Loans of such Tranche, the
“Existing Loans”) be converted to extend the termination date thereof and
the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of any Existing Tranche
(any such Existing Tranche which has been so extended, “Extended Tranche”
and the Loans of such Extended Tranche, the “Extended
Loans”) and to provide for other terms consistent with this Section 4.18. In order to establish any Extended Tranche,
the Applicable Borrower shall provide a notice to the Administrative
Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Tranche) (an “Extension
Request”) setting forth the proposed terms of the Extended Tranche to be established, which terms (other than provided
in Section 4.18(c) below) shall be identical to those applicable to the Existing Tranche from which they are to be extended (the “Specified
Existing Tranche”) except (x) all or any of the final maturity dates of such Extended Tranches may be delayed to later
dates than the final maturity dates of the Specified Existing Tranche, (y) (A) the interest margins with respect to the Extended Tranche
may be higher or lower than the interest margins for the Specified Existing Tranche and/or (B) additional fees may be payable to the Lenders
providing such Extended Tranche in addition to or in lieu of any increased margins contemplated by the preceding clause (A) and (z) the
commitment fee, if any, with respect to the Extended Tranche may be higher or lower than the commitment fee, if any, for the Specified
Existing Tranche, in each case to the extent provided in the applicable Extension Amendment; provided, that, notwithstanding anything
to the contrary in this Section 4.18 or otherwise, (1) such Extended Tranche shall not be, (x) in
the case of any Extended Tranche relating to Loans under any of the Term Facilities hereunderas
to Term Loans and Revolving Facility Commitments denominated in Dollars, in an amount less than $50,000,000 and shall be in
integral multiples of $25,000,000 in excess thereof and (y) in the case of any Extended Tranche relating
to Loans under theas to Term Loans and
Revolving Facility hereunderCommitments
denominated in Canadian Dollars, in an amount less than C$50,000,000
and shall be in integral multiples of C$25,000,000 in excess
thereof, (2) no Extended Tranche shall be secured by or receive the benefit of any collateral, credit support or security that does not
secure or support the Existing Tranches, (3) the repayment (other than in connection with a permanent repayment and, if applicable, termination
of commitments), the mandatory prepayment and the commitment reduction of any of Loans or Commitments under the Extended Tranches shall
be made on a pro rata basis with all other outstanding Loans or Commitments (including all Extended Tranches) respectively; provided,
that, Extended Loans may, if the Extending Lenders making such Extended Loans so agree, participate on a less than pro rata basis
in any voluntary or mandatory repayment or prepayment or commitment reductions hereunder, (4) the final maturity of any Extended Tranche
shall not be earlier than, and if such Extended Tranche is a term facility, shall not have a Weighted Average Life to Maturity shorter
than the applicable Specified Existing Tranche, (5) each Lender in the Specified Existing Tranche shall be permitted to participate in
the Extended Tranche in accordance with its pro rata share of the Specified Existing Tranche and (6) assignments and participations
of Extended Tranches shall be governed by the same assignment and participation provisions applicable to Loans and Commitments hereunder
as set forth in Section 11.6. No Lender shall have any obligation to agree to have any of its Existing Loans or, if applicable, commitments
of any Existing Tranche converted into an Extended Tranche pursuant to any Extension Request. Any Extended Tranche shall constitute a
separate Tranche of Loans (and, if applicable, commitments) from the Specified Existing Tranches and from any other Existing Tranches
(together with any other Extended Tranches so established on such date).
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(b) The Applicable Borrower shall provide the applicable Extension Request at least five (5) Business Days prior to the date on which Lenders under the applicable Existing Tranche or Existing Tranches are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Specified Existing Tranche converted into an Extended Tranche shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Specified Existing Tranche that it has elected to convert into an Extended Tranche. In the event that the aggregate amount of the Specified Existing Tranche subject to Extension Elections exceeds the amount of Extended Tranches requested pursuant to the Extension Request, the Specified Existing Tranches subject to Extension Elections shall be converted to Extended Tranches on a pro rata basis based on the amount of Specified Existing Tranches included in each such Extension Election.
(c)
Extended Tranches shall be established pursuant to an amendment (an “Extension Amendment”)
to this Agreement (which may include amendments to provisions related to maturity, interest margins, fees or prepayments referenced in
Section 4.18(a) and which, except to the extent expressly contemplated by the penultimate sentence of this Section 4.18(c) and
notwithstanding anything to the contrary set forth in Section 11.1, shall not require the consent of any Lender other than the Extending
Lenders with respect to the Extended Tranches established thereby) executed by the Applicable
Borrower, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any Extended Tranche
in an aggregate principal amount that is less than (x) in the case of any Extended Tranche relating to Loans denominated
in Dollars under the Term Facility hereunder, in an amount less than $50,000,000 and shall
be in integral multiples of $25,000,000 in excess thereof and (y) in the case
of any Extended Tranche relating to Loans under theor
the Closing Date Revolving Facility hereunder, in an amount less than $50,000,000 and shall be in integral multiples of $25,000,000
in excess thereof and (y) in the case of any Extended Tranche relating to Loans denominated
in Canadian Dollars under the 2024 Canadian Revolving Facility or the Closing Date Revolving Credit Facility hereunder, in an amount less
than C$50,000,000 and shall be in integral multiples of C$25,000,000 in excess thereof; provided, that no Extension
Amendment may provide for any Extended Tranche to be secured by any Collateral or other assets of any Loan Party that does not also secure
the Existing Tranches. It is understood and agreed that each Lender has consented to each amendment to this Agreement and the other Loan
Documents authorized by this Section 4.18 and the arrangements described above in connection therewith for all purposes requiring its
consent, and shall at the effective time thereof be deemed to consent to each amendment to this Agreement and the other Loan Documents
authorized by this Section 4.18 and the arrangements described above in connection therewith. In connection with any Extension Amendment,
the Applicable Borrower shall, if requested by the Administrative
Agent, deliver an opinion of counsel reasonably acceptable to the Administrative Agent as to the enforceability of such Extension Amendment,
this Agreement as amended thereby, and such of the other Loan Documents (if any) as may be amended thereby.
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(d) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Tranche is converted to extend the related scheduled maturity date(s) in accordance with Section 4.18(a) (an “Extension Date”), in the case of the Specified Existing Tranche of each Extending Lender, the aggregate principal amount of such Specified Existing Tranche shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Tranche so converted by such Lender on such date, and such Extended Tranches shall be established as a separate Tranche from the Specified Existing Tranche and from any other Existing Tranches (together with any other Extended Tranches so established on such date) and (B) if, on any Extension Date, any Revolving Facility Loans of any Extending Lender are outstanding under the applicable Specified Existing Tranches, such loans (and any related participations) shall be deemed to be allocated as Extended Loans (and related participations) and Existing Loans (and related participations) in the same proportion as such Extending Lender’s applicable Specified Existing Tranches to the applicable Extended Tranches so converted by such Lender on such date.
(e) If, in connection with any proposed Extension Amendment, any Lender declines to consent to the applicable extension on the terms and by the deadline set forth in the applicable Extension Request (each such Lender, a “Non-Extending Lender”) then the Applicable Borrower may, on notice to the Administrative Agent and the Non-Extending Lender, (A) replace such Non-Extending Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Section 11.6 (with the assignment fee and any other costs and expenses to be paid by the Applicable Borrower in such instance) all of its rights and obligations under this Agreement to one or more assignees; provided, that neither the Administrative Agent nor any Lender shall have any obligation to the Applicable Borrower to obtain a replacement Lender; provided, further, that the applicable assignee shall have agreed to provide Loans and/or a commitment on the terms set forth in such Extension Amendment; provided, further, that all obligations of the Applicable Borrower owing to the Non-Extending Lender relating to the Loans and participations so assigned shall be paid in full at par by the assignee Lender to such Non-Extending Lender concurrently with such Assignment and Assumption or (B) prepay the Loans and, at the Applicable Borrower’s option, if applicable, terminate the Commitments of such Non-Extending Lender, in whole or in part, subject to Section 4.11, without premium or penalty. In connection with any such replacement under this Section 4.18, if the Non-Extending Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Assumption and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the replacement Lender executes and delivers such Assignment and Assumption and/or such other documentation and (b) the date as of which all obligations of the Applicable Borrower owing to the Non-Extending Lender relating to the Loans and participations so assigned shall be paid in full in cash by the assignee Lender to such Non-Extending Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and Assumption and/or such other documentation as of such date without any action on the part of such Non-Extending Lender and the Assignment and Assumption executed by the replacement Lender shall be effective for the purposes of this Section 4.18.
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(f) This Section 4.18 shall supersede any provisions in Section 4.8 or Section 11.1 to the contrary.
(g) No amendment, conversion or exchange of Loans pursuant to any Extension Amendment in accordance with Section 4.18 shall constitute a voluntary or mandatory payment or prepayment for purposes of this Agreement.
4.19.
Refinancing Facilities. (a) At any time
after the Closing Date, the Applicable Borrower may obtain,
from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of (A) all or any portion of the Term Loans
then outstanding under this Agreement (which for purposes of this clause (A) will be deemed to include any then outstanding Incremental
Loans under any Incremental Term Loan Commitments) and any then outstanding Refinancing Term Loans or (B) all or any portion of the Revolving
Facility Loans (or unused Revolving Facility
Commitments or any Incremental Loans or unused Incremental Revolving Facility
Commitments or any unused Refinancing Revolving Facility Commitment
of Refinancing Revolving Facility Loans) under this Agreement,
in the form of (x) Refinancing Term Loans or Refinancing Term Commitments or (y) Refinancing Revolving Facility
Loans or Refinancing Revolving Facility Commitments,
as the case may be, in each case pursuant to a Refinancing Amendment; provided, that such Credit Agreement Refinancing Indebtedness
(i) will rank pari passu or junior in right of payment and of security with the other Loans and Commitments hereunder, (ii) will have
such pricing, premiums, rate floors and optional prepayment terms as may be agreed by the Applicable
Borrower and the Lenders thereof, (iii) (x) with respect to any Refinancing Revolving Facility
Loans or Refinancing Revolving Facility Commitments,
will have a maturity date that is not prior to the scheduled maturity date of the
applicable Revolving Facility Loans (or unused Revolving
Facility Commitments) being refinanced and (y) with respect
to any Refinancing Term Loans or Refinancing Term Commitments, will have a maturity date that is not prior to the scheduled maturity date
of, and will have a Weighted Average Life to Maturity that is not shorter than, the Term Loans being refinanced and (iv) will have other
terms and conditions that are substantially identical to (or in the case of any Credit Agreement Refinancing Indebtedness in the form
of notes, are on market terms or are substantially identical to), or (taken as a whole) are no more favorable to the investors providing
such Credit Agreement Refinancing Indebtedness than the Refinanced Debt; provided, further, that the terms and conditions
applicable to such Credit Agreement Refinancing Indebtedness may provide for any additional or different financial or other covenants
or other provisions that are agreed between the Applicable Borrower
and the Lenders thereof and applicable only during periods after the Latest Maturity Date that is in effect on the date such Credit Agreement
Refinancing Indebtedness is issued, Incurred or obtained. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction
on the date thereof of each of the conditions set forth in Section 6.1 and, to the extent reasonably requested by the Administrative Agent,
receipt by the Administrative Agent of customary legal opinions, board resolutions, officers’ certificates and/or reaffirmation
agreements consistent with those delivered on the Closing Date (other than changes to such legal opinions resulting from a change in law,
change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). Each Tranche of Credit
Agreement Refinancing Indebtedness Incurred under this Section 4.19 shall be in an aggregate principal amount that is (x)
not less than (x)(i) $50,000,000 in the
case of Refinancing Term Loans or $25,000,000 in the case of Refinancing Closing
Date Revolving LoansFacility
Commitments and (yii)
an integral multiple of $50,000,000 in excess thereof in the case of Refinancing Term Loans or $25,000,000 in excess thereof in the case
of Refinancing Revolving LoansClosing
Date Revolving Facility Commitments and (y) not less than (i) C$25,000,000 in the case of Refinancing 2024 Canadian Revolving Facility
Commitments and (ii) an integral multiple of C$25,000,000 in excess thereof in the case of Refinancing 2024 Canadian Revolving Facility
Commitments. Any Refinancing Amendment may provide for the issuance of Letters of Credit for the account of the Borrower, or
the provision to the Applicable Borrower of Swingline Loans,
pursuant to any Refinancing Revolving Facility Commitments
established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under
the applicable Revolving Facility
Commitments and in each case with the consent of the applicable Issuing Lenders and applicable
Swingline LendersLender.
The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties
hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but
only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness Incurred pursuant thereto
(including any amendments necessary to treat the Loans and Commitments subject thereto as Refinancing Term Loans, Refinancing Revolving
Facility Loans, Refinancing Revolving Facility
Commitments and/or Refinancing Term Commitments). Any Refinancing Amendment may, without the consent of any other Lenders,
effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of
the Administrative Agent, to effect the provisions of this Section. In addition, if so provided in the relevant Refinancing Amendment
and with the consent of each Issuing Lender, participations in Letters of Credit expiring on or after the Closing
Date Revolving Facility Termination Date shall be
reallocated from Lenders holding Closing Date Revolving Facility
Commitments to Lenders holding extended revolving commitmentsClosing
Date Revolving Facility Commitments in accordance with the terms of such Refinancing Amendment; provided, however,
that such participation interests shall, upon receipt thereof by the relevant Lenders holding the
relevant Revolving Facility Commitments, be deemed
to be participation interests in respect of such Revolving Facility Commitments
and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly.
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(b) This Section 4.19 shall supersede any provisions in Section 4.8 or Section 11.1 to the contrary.
4.20. Limitations on Canadian Borrower’s and Canadian Loan Parties’ Obligations. Notwithstanding the foregoing or anything else in this Agreement or any other Loan Document to the contrary, (a) neither the Canadian Borrower nor any other Canadian Loan Party shall have any obligation to (i) pay (whether as a primary obligor, guarantor or otherwise) any Obligations primarily owing by the Borrower or any Domestic Subsidiary (including principal, interest or fees), (ii) pledge any equity interests or xxxxx x Xxxx on any of its assets to secure any Secured Obligations (other than Canadian Secured Obligations), (iii) execute any document that would require either the Canadian Borrower or any other Canadian Loan Party to pay (whether as a primary obligor, guarantor or otherwise) or provide Collateral for any Obligations primarily owing by the Borrower or any Domestic Subsidiary under this Agreement (including any obligation to pay interest, principal or fees) and (b) no payment made by the Canadian Borrower or any other Canadian Loan Party shall be applied or otherwise credited to any Obligations primarily owing by the Borrower or any Domestic Subsidiary under this Agreement or any Loan Document (including any obligation to pay interest, principal or fees).
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SECTION
5. SECTION5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative
Agent and the Lenders to enter into this Agreement and to make the Loans and issue or participate in the Letters of Credit, the Borrower
hereby represents and warrants to the Administrative Agent and each Lender that, unless otherwise specified, on and as of the Closing
Date and on and as of each date as required by Section 6.16.2(b):
5.1. Financial Condition. The audited consolidated balance sheets and the related consolidated statements of income and of cash flows of the Borrower and its consolidated Subsidiaries for the fiscal year ended on or about December 31, 2022 accompanied by an unqualified report from KPMG LLP, in each case present fairly in all material respects the consolidated financial condition of the Borrower and its consolidated Subsidiaries, as of such date and their consolidated results of operations and consolidated cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes (if any) thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firms of accountants and disclosed therein). As of the Closing Date, no Group Member has any material Guarantee Obligations, contingent liabilities or any long-term leases or unusual forward or long-term commitments, including any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the most recent financial statements referred to in this Section 5.1 other than as contemplated by the Loan Documents.
5.2. No Change. There has not been since December 31, 2022, any development or event that has had or would reasonably be expected to have a Material Adverse Effect.
5.3. Corporate Existence; Compliance with Law. Each of the Borrower and its Material Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the organizational power and authority, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or other organization and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except to the extent the failure to be so qualified would not, in the aggregate, reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law and Organizational Documents, except to the extent that the failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
5.4. Power; Authorization; Enforceable Obligations. Each Loan Party has the organizational power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit under this Agreement. Each Loan Party has taken all necessary organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the borrowings under this Agreement as of the Closing Date. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the Transactions, the borrowings under this Agreement as of the Closing Date or the execution, delivery, performance, validity or enforceability of the Loan Documents except (i) consents, authorizations, filings and notices described in Schedule 5.4, which consents, authorizations, filings and notices have been obtained or made and are in full force and effect except as specifically described in Schedule 5.4 and (ii) the filings referred to in Section 5.19. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. This Agreement constitutes, each other Loan Document upon execution will constitute the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
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5.5. No Legal Bar. No execution, delivery and performance of the Loan Documents and, the issuance of Letters of Credit and the borrowings hereunder do not and will not violate in any material respect any Requirement of Law, Organizational Documents or any material Contractual Obligation of the Borrower or any Material Subsidiary or result in or require the creation or imposition of any Lien on any property or revenues of the Borrower or any Material Subsidiary in any material respect pursuant to any Requirement of Law, Organizational Documents or material Contractual Obligation (other than the Liens created by the Security Documents). No Group Member is subject to any Requirement of Law, Organizational Documents or Contractual Obligation that has had or would reasonably be expected to have a Material Adverse Effect.
5.6. Litigation. Except as set forth on Schedule 5.6, no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that would reasonably be expected to have a Material Adverse Effect.
5.7. No Default. No Default or Event of Default has occurred and is continuing.
5.8. Ownership of Property; Liens. Each of the Borrower and its Material Subsidiaries has good and marketable title to the Mortgaged Properties, and to the knowledge of the Borrower, has good and valid title to, or a valid leasehold interest in, all its other material property, in each case, free and clear of any Liens except Permitted Liens and except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes or where the failure to have such title or other interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
5.9. Intellectual Property. Each Group Member owns, or is licensed (or otherwise possesses the right) to use, all material Intellectual Property necessary for the conduct of its business as currently conducted, except to the extent such failure to own or possess the right to use, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, (a) no claim has been asserted and is pending before a Governmental Authority against any Group Member by any Person challenging or questioning the use of any Intellectual Property, or the validity or enforceability of any Intellectual Property owned by any Group Member, and (b) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
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5.10. Taxes. Each Group Member has filed all federal, state and other Tax returns and reports required to be filed, and has paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.11. Federal Regulations. No part of the proceeds of any Loans or Revolving Facility Extensions of Credit will be used for “buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect or for any purpose that violates the provisions of the Regulations of the Federal Reserve Board, including, without limitation, Regulation T, Regulation U or Regulation X.
5.12. Labor Matters. Except as, in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment made to employees of each Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Group Member.
5.13. ERISA; Canadian Pension Plans.
.
(a) Neither a Reportable Event nor a failure
to satisfy the minimum funding standard (within the meaning of Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA)
has occurred during the five (5)-year period prior to the date on which this representation is made or deemed made with respect to any
Single Employer Plan, whether or not waived, which resulted in any material liability to any Group Member or Commonly Controlled Entity,
and each Single Employer Plan has complied in all material respects with the applicable provisions of ERISA and the Code. No termination
of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five (5)-year period. The present
value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by a material amount. No Group Member or Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted or would reasonably be expected to result in a material liability to such Group
Member or Commonly Controlled Entity under ERISA. No such Multiemployer Plan is Insolvent, or is in “critical” or “endangered”
status under Section 432 of the Code or Section 305 of ERISA, and no Single Employer Plan is in “at risk” status as defined
in Section 430 of the Code or Section 303 of ERISA. No Group Member has any liability with respect to any employee benefit plan that is
not subject to the laws of the United States or a political subdivision thereof that would reasonably be expected to result in a Material
Adverse Effect.
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(b) As of the First Amendment Effective Date, no Loan Party maintains, sponsors, administers, contributes to, participates in or has any liability in respect of any Canadian Defined Benefit Pension Plan, any Canadian Pension Plan or Canadian Multi-Employer Pension Plan. Except as could not reasonably be expected to have a Material Adverse Effect: (i) the Canadian Pension Plans (if any) have been administered and invested in compliance with their terms, any collective agreements and Requirement of Law, (ii) there are no outstanding disputes, investigations, actions, claims or other proceedings concerning the Canadian Pension Plans (if any), (iii) no promises of benefit improvements under the Canadian Pension Plans or Canadian Multi-Employer Pension Plans (if any) have been made by a Loan Party and there are no taxes, penalties or interest owing in respect of any Canadian Pension Plans, (iv) all material employer and employee payments, contributions or premiums to be remitted, paid to or in respect of each Canadian Pension Plan or Canadian Multi-Employer Pension Plans (if any) by a Loan Party have been paid by each such Loan Party in a timely fashion in accordance with the terms thereof, any funding agreement and all Requirements of Law except to the extent cured within thirty (30) days of the due date in respect thereof and (v) no Lien has arisen in respect of any Loan Party in connection with any Canadian Pension Plan or Canadian Multi-Employer Pension Plan (save for contribution amounts not yet due).
5.14. Investment Company Act. No Group Member is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
5.15. Restricted Subsidiaries. As of the Closing Date, (a) Schedule 5.15 sets forth the name and jurisdiction of organization of each Restricted Subsidiary and, as to each such Restricted Subsidiary, the percentage of each class of Capital Stock owned by any Group Member and (b) there are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments of any nature relating to any Capital Stock of the Group Member (other than the Borrower), except as created by the Loan Documents.
5.16. Use of Proceeds. (a) The proceeds of the Loans made on the Closing Date shall be used to (i) refinance all indebtedness outstanding under the Existing Revolving Facility and, in connection therewith, terminate all Existing Revolving Facility Commitments, (ii) repay, repurchase or redeem a portion of the Senior Notes and (iii) pay any fees and expenses incurred in connection with the transactions described in clauses (i) and (ii) above and (b) after the Closing Date, the Borrower and its Subsidiaries may use any unutilized proceeds from the Term Loans and proceeds from Revolving Facility Loans, Letters of Credit, Swingline Loans and proceeds of any Incremental Loans for working capital, Permitted Acquisitions or other general corporate purposes.
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5.17. Environmental Matters. Except as, in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect:
(a) Except as listed on Schedule 5.17, the facilities and properties currently owned, leased or operated by any Group Member (the “Properties”) do not contain contamination in amounts or concentrations or under circumstances that constitute, or would reasonably be expected to give rise to liability under, any Environmental Law;
(b) Except as listed on Schedule 5.17, no Group Member has received any written notice of violation, alleged violation, non-compliance or liability or potential liability, under Environmental Laws with regard to any of the Properties or any Group Member’s operation of any of the Properties or the business operated by any Group Member (the “Business”), nor does the Borrower have knowledge that any such notice is likely to be received or is being threatened;
(c) the Group Members (i) conduct the Business in compliance with Environmental Law, (ii) hold all Environmental Permits (each of which is in full force and effect) required pursuant to Environmental Law for the conduct of the Business; and (iii) are in compliance with all such Environmental Permits;
(d) Except as listed on Schedule 5.17, Materials of Environmental Concern have not been transported or disposed of by or on behalf of any Group Member from the Properties in violation of any Environmental Law, nor during any Group Member’s ownership or operation of the Properties or, to the knowledge of the Borrower, at any formerly owned, leased or operated facilities or properties (“Former Properties”) have any Materials of Environmental Concern been disposed of or released at, on or under any of the Properties or Former Properties or otherwise in connection with the Business in violation of Environmental Law, or in a manner that would be reasonably likely to give rise to liability under, any Environmental Law; and
(e) Except as listed on Schedule 5.17, no judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Borrower, threatened, under any Environmental Law to which any Group Member is or is reasonably likely to be named as a party with respect to the Properties or the Business or, to the knowledge of the Borrower, any Former Properties, nor are there any consent decrees, consent orders, administrative orders or other orders, or other binding administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business or, to the knowledge of the Borrower, any Former Properties.
5.18. Accuracy of Information, etc. No written statement or information (other than any projections and information of a general economic or general industry nature) contained in this Agreement, any other Loan Document or any other material document, certificate or written statement furnished by or on behalf of any Group Member to the Administrative Agent or the Lenders, or any of them, for use in connection with the Transactions or the other Loan Documents, taken as a whole, contained as of the date such statement, information, document or certificate was so furnished, any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein not materially misleading, in the light of the circumstances under which they were made (after giving effect to all supplements). The forecasts, projections and pro forma financial information contained in the materials referenced above are based upon good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time made, it being recognized by the Lenders that such financial information as it relates to future events is not to be viewed as fact and that actual results during the period or periods covered by such financial information may differ from the projected results set forth therein by a material amount.
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5.19.
Security Documents. (a) The
Guarantee and Collateral Agreement is effective to create in favor of the Administrative Agent, for the benefit of the applicable
Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds and products
thereof, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally. In the case of the Pledged Stock described in the Guarantee and Collateral Agreement,
when stock certificates representing such Pledged Stock are delivered to the Administrative Agent, and in the case of the other Collateral
described in the Guarantee and Collateral Agreement, to the extent provided therein, when financing statements in appropriate form are
filed in the appropriate filing offices and the other actions described in Section 4.3 of the Guarantee and Collateral Agreement are completed,
the Guarantee and Collateral Agreement shall be effective to create a perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the applicable
Secured Obligations (as defined in the Guarantee and Collateral Agreement), in each case (to the extent provided therein) prior
and superior in right to any other Person (except for Permitted Liens);.
(b) Upon execution thereof, each of the Mortgages shall be effective to create in favor of the Administrative Agent, for the benefit of the applicable Secured Parties, a legal, valid and enforceable Lien on the Mortgaged Properties described therein and proceeds and products thereof, and when the Mortgages are appropriately filed or recorded and indexed in the appropriate offices as may be required under applicable Requirements of Law (to the extent required hereunder and thereunder), together with payment of appropriate filing or recording fees and applicable taxes, if any, in the offices specified therein, each such Mortgage shall constitute, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally (to the extent provided therein), a perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Mortgaged Properties and the proceeds thereof, as security for the applicable Obligations (as defined in the relevant Mortgage), in each case (except as expressly set forth therein) prior and superior in right to any other Person (except for Permitted Liens). Schedule 1.1(a) lists, as of the Closing Date, each parcel of owned real property located in the United States and held by the Borrower or any other Loan Party that has a value, in the reasonable opinion of the Borrower, in excess of $6,000,000.
(c)
When delivered and at all times thereafter, each Intellectual Property Security Agreement (together with the Guarantee and Collateral
Agreement) is effective to create in favor of the Administrative Agent, for the benefit of the applicable
Secured Parties, a legal, valid and enforceable security interest in the Intellectual Property Collateral described therein
and the proceeds and products thereof, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors’ rights generally. Upon the filing of (i) eachsuch
U.S. Intellectual Property Security Agreement in the appropriate indexes of the United States Patent and Trademark Office (the
“PTO”) relative to United States patents and United States trademarks, and the United States Copyright Office relative
to United States copyrights, if any, together with provision for payment of all requisite fees, and
(ii) each Canadian Intellectual Property Security
Agreement in the Canadian Intellectual Property Office and (iii) financing statements in appropriate form for filing in the
appropriate filing offices, eachthe
Intellectual Property Security Agreement shall constitute (to the extent provided in the Guarantee and Collateral Agreement) a perfected
Lien on, and security interest in, all right, title and interest of the applicable
Loan Parties in such Intellectual Property Collateral described therein and the proceeds and products thereof, as security
for the applicable Secured Obligations (as defined in the Guarantee
and Collateral Agreement), in each case (except as expressly set forth therein) prior and superior in right to any other Person (except
for Permitted Liens); provided, that the Loan Parties shall not have any obligation to perfect any security interest or Lien, or
record any notice thereof, in any Intellectual Property Collateral in any jurisdiction other than the United States of America and Canada
and subsequent filings in the PTO and,
United States Copyright Office and Canadian Intellectual Property Office
and actions and filings under applicable law to obtain the equivalent perfection may be necessary with respect to registrations for Intellectual
Property acquired by any Loan Party after the date hereofClosing
Date.
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5.20. Solvency. As of the Closing Date, the Borrower and its Subsidiaries, on a consolidated basis, are, and after giving effect to the Transactions and the Incurrence of all Indebtedness and obligations being Incurred in connection therewith will be, Solvent.
5.21. Regulation H. No Mortgage encumbers improved real property that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in respect of which the procurement of flood insurance is required by any Requirement of Law, unless such flood insurance has been obtained and is in full force and effect.
5.22.
Anti-Terrorism Laws. (a) No Group Member or any
Affiliate of any Group Member is in violation of (i) the PATRIOT Act or (ii)
CAML, or (iii) or any other similar anti-terrorism laws.
(b) No Group Member or Affiliate of any Group Member is any of the following (each a “Blocked Person”):
(i) a Sanctioned Person;
(ii) a Person or entity with which any bank or other financial institution is prohibited from dealing or otherwise engaging in any transaction by any applicable anti-terrorism law; or
(iii) a Person or entity that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224.
5.23. Anti-Corruption Laws and Sanctions. The Borrower has implemented and maintains in effect policies and procedures reasonably designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers, directors and employees and, to the knowledge of the Borrower, its agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any of its Subsidiaries or any of their respective directors or officers, or (b) to the knowledge of the Borrower, any employee or agent of the Borrower or any of its subsidiaries that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person.
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5.24. Affected Financial Institutions. No Loan Party is an Affected Financial Institution.
5.25. Beneficial Ownership Certificate. To the knowledge of the Borrower, the information included in the Beneficial Ownership Certificate last delivered with respect to the Borrower, if applicable, is true and correct in all respects.
SECTION
6. SECTION6. CONDITIONS PRECEDENT
6.1. Conditions to Effectiveness. This Agreement shall not become effective until the date on which each of the following conditions is satisfied (or waived):
(a)
(i) The Administrative Agent (or its counsel) shall have received from (i) the Borrower and each Lender and Issuing Lender a counterpart
of this Agreement and (ii) each Loan Party as of the Closing Date a counterpart of the U.S.
Guarantee and Collateral Agreement, in each case, signed on behalf of such party and (iiiii)
the Administrative Agent shall have executed a counterpart of this Agreement and the U.S.
Guarantee and Collateral Agreement (which execution, in each case of the foregoing clauses (i) and (ii), subject to Section
11.8, may include any Electronic Signatures transmitted by email or other electronic means that reproduces an image of an actual executed
signature page);
(b) The Administrative Agent shall have received a customary written opinion (addressed to the Administrative Agent, the Lenders and the Issuing Lenders and dated the Closing Date) of (i) Xxxxxxx, Arps, Slate, Meagher, & Xxxx LLP, California, Delaware and New York counsel for the Loan Parties, and (ii) Ice Xxxxxx LLP, Indiana counsel for the Loan Parties;
(c) The Administrative Agent shall have received a certificate from a Responsible Officer of each Loan Party, dated the Closing Date, certifying: (i) that attached thereto is a true and complete copy of the certificate or articles of incorporation, certificate of incorporation, certificate of formation, articles of organization or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official or Governmental Authority) of the jurisdiction of its organization or by the Secretary or Assistant Secretary or similar officer of such Loan Party or other person duly authorized by the constituent documents of such Loan Party, (ii) that attached thereto is a true and complete copy of a certificate as to the good standing of such Loan Party (to the extent that such concept exists in such jurisdiction) as of a recent date from such Secretary of State (or other similar official or Governmental Authority), (iii) that attached thereto is a true and complete copy of the Organizational Documents of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in the following clause (iv), (iv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member), authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date, and (v) as to the incumbency and specimen signature of each officer or authorized signatory executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party;
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(d) The Administrative Agent shall have received a Solvency Certificate signed by the chief financial officer, chief accounting officer or other officer with equivalent duties of the Borrower;
(e) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying that the conditions in Section 6.2(a) and (b) have been satisfied as of the Closing Date;
(f) The Administrative Agent shall have received a notice of borrowing pursuant to Section 3.2;
(g) The Administrative Agent shall have received, at least three (3) Business Days prior to the Closing Date, all documentation and other information required with respect to the Loan Parties by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, to the extent requested in writing by the Administrative Agent at least ten (10) Business Days prior to the Closing Date;
(h) The Administrative Agent shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced at least three (3) Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of Xxxxxx & Xxxxxxx LLP) required to be reimbursed or paid by the Loan Parties on the Closing Date; and
(i) The Closing Date Refinancing shall have been consummated substantially concurrently with the effectiveness of this Agreement.
6.2. Conditions to Each Extension of Credit. Subject to Section 1.3 and Section 4.17(g), the agreement of each Lender to make any extension of credit requested to be made by it on the date of this Agreement or any other date is subject to the satisfaction (or waiver) of the following conditions precedent:
(a) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date;
(b) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and
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(c) The Administrative Agent shall have received (i) a notice of borrowing pursuant to Section 3.2 or 3.4, as the case may be, in connection with any borrowing under the Revolving Facility Commitments or Swingline Loans or (ii) an Application pursuant to Section 3.8 for issuance of a Letter of Credit on behalf of the Applicable Borrower.
Each borrowing by and issuance or increase of a Letter of Credit on behalf of the Applicable Borrower hereunder shall constitute a representation and warranty by the Applicable Borrower as of the date of such extension of credit that the conditions contained in this Section 6.2 have been satisfied.
SECTION
7. SECTION7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding or any Loan or other amount is owing to any Lender or the Administrative Agent hereunder, the Borrower shall and shall cause each of its Restricted Subsidiaries to:
7.1. Financial Statements.
(a) Furnish to the Administrative Agent on behalf of each Lender:
(i) as soon as available, but in any event within ninety (90) days after the end of each fiscal year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such year and the related audited consolidated statements of income and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year and the current year budget, reported on without any material qualification or exception including a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit (except to the extent solely due to the scheduled occurrence of a maturity date within one (1) year from the date of such audit or the potential inability to satisfy the financial covenant set forth in Section 8.1), by KPMG LLP or other independent certified public accountants of nationally recognized standing; and
(ii) as soon as available, but in any event not later than forty-five (45) days after the end of each of the first three quarterly periods of each fiscal year of the Borrower (or, in the case of the first fiscal quarter ending after the Closing Date, sixty (60) days after the end of such fiscal quarter), the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income and of cash flows for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous year and the current year budget, certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments and the absence of footnotes).
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(b) All such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods (except as approved by such accountants or officer, as the case may be, and disclosed therein).
(c) Notwithstanding the foregoing such financial statements may be delivered in the form and with the accompanying certifications required by applicable Requirements of Law for filing Forms 10-K and Forms 10-Q with the SEC.
7.2. Certificates; Other Information. Furnish to the Administrative Agent on behalf of each Lender (or, in the case of clause (g), to the relevant Lender):
(a) within five (5) Business Days of any delivery of any financial statements pursuant to Section 7.1, (i) a certificate of a Responsible Officer stating that, to the knowledge of such Responsible Officer, each Group Member during such period has observed in all material respects or performed in all material respects all of the applicable covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Loan Documents to be observed, performed or satisfied by it in all material respects, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default, in each case except as specified in such certificate and (ii) a Compliance Certificate;
(b) as soon as available, and in any event no later than ninety (90) days after the end of each fiscal year of the Borrower, a detailed consolidated budget for the following fiscal year (including a projected consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the following fiscal year, the related consolidated statements of projected cash flow, projected changes in financial position and projected income and a description of the underlying assumptions applicable thereto) (collectively, the “Projections”);
(c) if the Borrower is not then a reporting company under the Exchange Act within forty-five (45) days after the end of each fiscal quarter of the Borrower (ninety (90) days, in the case of the fourth fiscal quarter of any fiscal year, and sixty (60) days, in the case of the first fiscal quarter ending after the Closing Date), a narrative discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, as compared to the portion of the Projections covering such periods and to the comparable periods of the previous year;
(d) promptly after the effectiveness thereof, copies of any amendment, supplement, waiver or other modification with respect to any Securitization;
(e) promptly after the same are publicly filed, copies of all financial statements and reports that the Borrower may make to, or file with, the SEC;
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(f) concurrently with the delivery of any document or notice required to be delivered pursuant to Section 7.1 or 7.2, Borrower shall indicate in writing whether such document or notice contains Non-public Information. The Borrower and each Lender acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that do not wish to receive material Non-public Information with respect to any Group Member or their securities) and, if documents or notices required to be delivered pursuant to Section 7.1 or 7.2 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”), any document or notice that Borrower has indicated contains Non-public Information shall not be posted on that portion of the Platform designated for such public-side Lenders. If the Borrower has not indicated whether a document or notice delivered pursuant to Section 7.1 or 7.2 contains Non-public Information, the Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material Non-public Information with respect to the Group Members and their securities. Notwithstanding anything herein to the contrary, in no event shall the Borrower request that the Administrative Agent make available to “public-side” Lenders budgets or any certificates, reports or calculations with respect to the Borrower’s compliance with the covenants contained herein; and
(g) promptly, such additional customary financial and other information (including, without limitation, information regarding any Single Employer Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA) as the Administrative Agent may from time to time reasonably request (for itself or on behalf of any Lender) (including any information required with respect to the Loan Parties by regulatory authorities under applicable “know-your-customer” or anti-money laundering laws or regulations, including Patriot Act and the Beneficial Ownership Regulation).
The
information required to be delivered by Sections 7.1(a)(i), 7.1(a)(ii), 7.2(c) and 7.2(e) shall be deemed to have been delivered if such
information, or one or more annual or quarterly reports or other reports containing such information, shall have been posted by
the Administrative by the Administrative Agent
on a Platform to which the Lenders have been granted access or shall be available on the website of the SEC at xxxx://xxx.xxx.xxx (or
any sub-domain thereof). Information required to be delivered pursuant to Sections 7.1 and 7.2 may also be delivered by electronic communications
pursuant to procedures approved by the Administrative Agent.
7.3. Payment of Obligations; Payment of Taxes. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature (including Tax liabilities), except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the relevant Group Member or where failure to pay, discharge or otherwise satisfy such material obligations, in the aggregate, has not had and would not reasonably be expected to result in a Material Adverse Effect.
7.4. Maintenance of Existence; Compliance. (a) (i) Preserve, renew and keep in full force and effect its organizational existence and (ii) take all reasonable action to maintain all rights, privileges and franchises necessary to conduct its business, except, in each case, as otherwise permitted by Section 8.4 and except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; and (b) comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures reasonably designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.
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7.5. Maintenance of Property; Insurance. (a) Keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted, except to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect and (b) maintain with reputable insurance companies (determined as of the date such insurance is placed or renewed) insurance on all its property in at least such amounts and against such risks (but including in any event public liability) as are usually insured against in the same general area by companies engaged in the same or a similar business, in each case under this clause (b), as reasonably determined by the Borrower.
7.6. Inspection of Property; Books and Records; Discussions. (a) Keep proper books of records and account in which entries that are full, true and correct in all material respects and in conformity with GAAP are made of all material dealings and transactions in relation to its business and activities and (b) permit, upon reasonable prior notice, any persons designated by the Administrative Agent, or upon the occurrence and during the continuance of an Event of Default, any Lender, to visit and inspect any of its properties and examine and make abstracts from any of its books and records at such reasonable times and upon reasonable intervals and to discuss the business, operations, properties and financial and other condition of the Group Members with officers of the Group Members and with their independent certified public accountants (provided that the Borrower may, if it so chooses, be present at, or participate in such discussions) at such reasonable times during normal business hours and upon reasonable intervals, in each case as any Administrative Agent or, upon the occurrence of and during the continuance of an Event of Default, any Lender may reasonably request; provided, that, unless an Event of Default has occurred and is continuing, such visitation and inspection rights may only be exercised by the Administrative Agent once per calendar year. Notwithstanding anything to the contrary in this Section 7.6, none of the Group Members will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that is subject to attorney-client or similar privilege or constitutes attorney work product; provided that such Group Member shall have notified the Administrative Agent that such document, information or other matter is being withheld on the basis of the foregoing.
7.7. Notices. Promptly upon any Responsible Officer of the Borrower acquiring knowledge thereof, give notice to the Administrative Agent (for distribution to the Lenders) of the following:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any material Contractual Obligation of any Group Member or (ii) litigation, investigation or proceeding that may exist at any time between any Group Member and any Governmental Authority, that is reasonably expected to be determined adversely and, if so determined, would reasonably be expected to have a Material Adverse Effect;
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(c) any litigation or proceeding affecting any Group Member (i) which is reasonably expected to be determined adversely and, if so determined, would reasonably be expected to have a Material Adverse Effect, (ii) in which injunctive or other temporary or specific relief is sought which, if granted, would reasonably be expected to have a Material Adverse Effect or (iii) which relates to any Loan Document;
(d)
the following events, as soon as possible and in any event within thirty (30) days after the Borrower knows or has reason to know
thereof: (i) the occurrence of any Reportable Event with respect to any Single Employer Plan, the incurrence of a failure to satisfy the
minimum funding standard (as defined in Sections 412 and 430 of the Code and Sections 302 and 303 of ERISA) (whether or not waived) with
respect to a Single Employer Plan, the creation of any Lien in favor of the PBGC or a Single Employer Plan or any withdrawal from, or
the termination or Insolvency of, any Multiemployer Plan or,
(ii) the institution of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination or Insolvency of, any Plan,
or (iii) the occurrence of a Canadian Pension Event; and
(e) any development or event that has had or would reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 7.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action, if any, is proposed to be taken with respect thereto.
7.8. Environmental Laws. (a) Comply in all material respects and conduct the Business in compliance with, and make all commercially reasonable efforts to ensure compliance in all material respects by all tenants and subtenants, if any, with, all Environmental Laws, and obtain and comply in all material respects with and maintain, and make all commercially reasonable efforts to ensure that all tenants and subtenants, if any, obtain and comply in all material respects with and maintain, any and all Environmental Permits required pursuant to Environmental Law for the conduct of the Business or their respective operations, in each case except for any such non-compliance or failure to obtain that, individually or in the aggregate, would not be expected to result in a Material Adverse Effect.
(b) Except as would not be expected to result in a Material Adverse Effect, (i) unless being contested in good faith, conduct and complete in all material respects all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and (ii) promptly comply in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws; provided, that compliance within deadlines set by such orders or authorities shall be deemed to be prompt.
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7.9. Additional Collateral, etc. Subject to Section 4.20:
(a) With respect to any owned property constituting Collateral acquired after the Closing Date by the Borrower, the Canadian Borrower or any Subsidiary Guarantor as to which the Administrative Agent, for the benefit of the applicable Secured Parties, does not have a perfected Lien (except as expressly set forth in the applicable Security Document), promptly (or within such period of time as reasonably consented to by the Administrative Agent) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other documents as the Administrative Agent reasonably deems necessary or advisable to grant to the Administrative Agent, for the benefit of the applicable Secured Parties, a security interest in such property and (ii) take all actions reasonably necessary or advisable to grant to the Administrative Agent, for the benefit of the applicable Secured Parties, a (except as expressly set forth in the applicable Security Document) perfected security interest in such property, including the filing of Uniform Commercial Code financing statements or PPSA financing statements, as applicable, in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent.
(b)
Subject to the last sentence of this Section 7.9(b), with respect to any fee simple interest in any real property having a value
of at least $6,000,000 acquired after the Closing Date by the Borrower,
the Canadian Borrower or any Subsidiary Guarantor within ninety (90) days of such acquisition (or within such longer period
of time as reasonably consented to by the Administrative Agent) (A) execute, acknowledge and deliver a Mortgage in favor of the Administrative
Agent, for the benefit of the applicable Secured Parties, in
an amount no greater than 125% of the purchase price if the property is located in a statejurisdiction
with mortgage recording tax covering such real property, (B) if requested by the Administrative Agent, provide the applicable
Secured Parties with (1) title and extended coverage insurance covering such real property in an amount at least equal to the
purchase price of such real property (and endorsements thereto) together with a current ALTA survey thereof, together with a surveyor’s
certificate; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the title company
and does deliver such certificate to the title company to enable it to issue a title policy (x) removing all exceptions which would otherwise
have been raised by the title company as a result of the absence of a current survey for such real property and (y) including all endorsements
that would otherwise have been included had a current survey been obtained, then a current survey shall not be required; and (2) any consents
or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Mortgage, each of the foregoing
in form and substance reasonably satisfactory to the Administrative Agent, (C) in
the case of a property located in the United States, a flood hazard certificate, certified to the Administrative Agent, specifying
whether such real property is located in a special flood hazard zone and if so, evidence of flood insurance as required by any Requirement
of Law and (D) if, reasonably requested by the Administrative
Agent or, in the case of a property located in Canada, if no title insurance
can be obtained, deliver to the Administrative Agent customary legal opinions relating to the matters described above (or
relating to matters customary for the applicable jurisdiction), which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Administrative Agent shall not enter into any
Mortgage in respect of any real property located in the United States
and acquired by any Loan Party after the Closing Date unless and until (a) if such Mortgaged Property relates to a property
not located in a flood zone, the date that is five (5) Business Days or (b) if such Mortgaged Property relates to a property located in
a flood zone, the date that is fourteen (14) days, after the Administrative Agent has delivered to the Lenders the following documents
in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (ii) if such real property is
located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable)
notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable
Loan Parties of such notice; and (iii) if required by Flood Insurance Laws, evidence of required flood insurance.
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(c)
With respect to any new Restricted Subsidiary that is not an Excluded Subsidiary with
respect to the applicable Facility (or such other Restricted Subsidiary designated by the Borrower as a Subsidiary Guarantor)
created or acquired after the Closing Date by any Group MemberLoan
Party (which, for the purposes of this Section 7.9(c), shall include any existing Restricted Subsidiary that ceases to be a
Foreign Subsidiary or an Excluded Subsidiary), promptly (or within such period of time as reasonably consented to
by the Administrative Agent) (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent reasonably deems necessary or advisable to grant to the Administrative Agent, for the benefit of the applicable
Secured Parties, a perfected security interest in the Capital Stock of such new Restricted Subsidiary (to the extent constituting
Collateral) that is owned by any Group MemberLoan
Party (provided, that in no event shall more than 65% of the total outstanding voting Capital Stock of any such new Restricted Subsidiary
that is a Foreign Subsidiary owned by a U.S. Loan Party be required to be so pledged), (ii) deliver to the Administrative Agent
the certificates, if any, representing such Capital Stock, together with undated stock powers or equivalents, in blank, executed and delivered
by a duly authorized officer of the relevant Group MemberLoan
Party, (iii) cause such new Restricted Subsidiary (other than any Securitization Subsidiary) (A) to become a party to
the Guarantee and Collateral Agreement, (B) to take such actions reasonably necessary or reasonably advisable to grant to the Administrative
Agent for the benefit of the applicable Secured Parties a (to
the extent provided in the Guarantee and Collateral Agreement) perfected security interest in the Collateral described in the Guarantee
and Collateral Agreement with respect to such new Restricted Subsidiary, including the filing of Uniform Commercial Code financing statements
or PPSA financing statements or in such jurisdictions as may
be required by the Guarantee and Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent and (C)
to deliver to the Administrative Agent a certificate of such Restricted Subsidiary, executed by a Responsible Officer of such Restricted
Subsidiary, substantially in the form of the certificate delivered pursuant to Section 6.1(c) (or such other form that is reasonably acceptable
to the Administrative Agent) and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent customary legal opinions
relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(d)
With respect to (i) any new Foreign Subsidiary (or with respect
to the 2024 Canadian Revolving Facility only, any Foreign Non-Canadian Subsidiary) created or acquired after the Closing Date
by any Group Member (other than by any Group Member that is a Foreign Subsidiary) that isLoan
Party, that is a Material Foreign Subsidiary or a direct or indirect parent of any Material Subsidiaries, or (ii) any Foreign
Subsidiary owned by any Group Member (other than by any Group Member that
is a Foreign Subsidiary) (or
with respect to the 2024 Canadian Revolving Facility only, a Foreign Non-Canadian Subsidiary) owned by any Loan Party, that
(x) becomes a Material Foreign Subsidiary or (y) is a direct or indirect parent of any Subsidiary that becomes a Material Foreign Subsidiary,
promptly (A) (or within such period of time as reasonably consented to by the Administrative Agent) execute and deliver to the Administrative
Agent such amendments or supplements to the applicable Guarantee
and Collateral Agreement as the Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for the benefit
of the applicable Secured Parties, a (except as expressly set
forth in the Guarantee and Collateral Agreement) perfected security interest in the Capital Stock of such new
Foreign Subsidiary (to the extent constituting Collateral) that is owned by any such Group
MemberLoan Party (provided, that,
in no event shall more than 65% of the total outstanding voting Capital Stock of any such new Foreign Subsidiary owned
by a U.S. Loan Party be required to be so pledged), (B) deliver to the Administrative Agent the certificates, if any,
representing such Capital Stock, together with undated stock powers or equivalents, in blank, executed and delivered by a duly authorized
officer of the relevant Group MemberLoan
Party, as the case may be, and take such other action as may be reasonably necessary or, in the reasonable opinion of the Administrative
Agent, desirable to perfect the Administrative Agent’s security interest therein, and (C) if requested by the Administrative Agent,
deliver to the Administrative Agent customary legal opinions relating to the matters described above, which opinions shall be in form
and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
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(e) If at any time the aggregate amount of Consolidated EBITDA or Consolidated Total Assets attributable to all Restricted Subsidiaries that are not Material Subsidiaries exceeds (i) ten percent (10.0%) of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1 or (ii) ten percent (10.0%) of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.1, the Borrower shall, on or prior to first delivery of a Compliance Certificate pursuant to Section 7.2(a) occurring on or after such occurrence, designate in writing to the Administrative Agent, first, Domestic Subsidiaries as “Material Domestic Subsidiaries”, second (to the extent necessary), Canadian Subsidiaries as “Material Foreign Subsidiaries”, and, thereafter (to the extent necessary), other Foreign Subsidiaries as “Material Foreign Subsidiaries”, in each case, to eliminate such excess; provided that, such designated Restricted Subsidiaries shall for all purposes of this Agreement constitute Material Domestic Subsidiaries or Material Foreign Subsidiaries, respectively.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that:
(i) no Loan Party shall be required to seek any landlord waiver, bailee letter, estoppel, warehouseman waiver or other collateral access, lien waiver or similar letter or agreement;
(ii) no Loan Party shall be required to perfect a security interest in any asset to the extent perfection of a security interest in such asset would be prohibited under any applicable Law;
(iii) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any Taxes or expenses payable relating to such Lien) is excessive in relation to the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrower and the Administrative Agent;
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(iv) no actions in any non-U.S. jurisdiction (except for Canada) or required by the laws of any non-U.S. jurisdiction (except for Canada) shall be required in order to create any security interests in any assets or to perfect or make enforceable such security interests (including any Intellectual Property registered in any non-U.S. jurisdiction (except for Canada)) (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction (except for Canada) or any requirement to make any filings in any foreign jurisdiction (except for Canada) including with respect to foreign Intellectual Property); and
(v) no asset of any Foreign Subsidiary (other than Canadian Subsidiaries with respect to the Canadian Secured Obligations) shall directly or indirectly serve as security for the Secured Obligations, no Canadian Subsidiary shall guaranty directly or indirectly the U.S. Secured Obligations and no asset of any Canadian Subsidiary shall directly or indirectly serve as security for the U.S. Secured Obligations, and
(vi)
(v) no actions shall be required with respect to assets requiring perfection
through control agreements or perfection by “control” (as defined in the UCC) (other than in respect of Indebtedness for borrowed
money owing to the Loan Parties evidenced by a note in excess of $5,000,000) and certificated Capital Stock of Wholly Owned Subsidiaries
that are Material Subsidiaries otherwise required to be pledged pursuant to the Guarantee and Collateral Agreement to the extent otherwise
required by Section 7.9(a). Notwithstanding the foregoing, in each case subject to the terms and conditions set forth in the Guarantee
and Collateral Agreement, in the case of any Collateral consisting of uncertificated securities in excess of $5,000,000, upon the reasonable
request of the Administrative Agent, the applicable Loan Party shall have caused the issuer thereof to either (x) register the Administrative
Agent as the owners of such uncertificated securities or (y) promptly agree in writing that such issuer will comply with instructions
issued or originated by the Administrative Agent without further consent of such Loan Party.
7.10. Use of Proceeds(a). Use the proceeds of the Loans only for the purposes specified in Section 5.16.
(b) Not request any Borrowing or Letter of Credit, or use (or permit any of its Subsidiaries or its or their respective directors, officers, employees and agents to use) the proceeds of any Borrowing or Letter of Credit, (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, each to the extent prohibited by applicable Sanctions, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
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7.11.
Further Assurances. From time to time execute
and deliver, or cause to be executed and delivered, such additional instruments, certificates or documents, and take all such actions,
as the Administrative Agent may reasonably request for the purposes of implementing or effectuating the provisions of this Agreement and
the other Loan Documents, or of perfecting or renewing the rights of the Administrative Agent and the Lenders with respect to the Collateral
(or with respect to any additions thereto or replacements or proceeds thereof or with respect to any other property or assets hereafter
acquired by the borrowerBorrower
or any Restricted Subsidiary which may be deemed to be part of the Collateral) pursuant hereto or thereto. Upon the exercise by the Administrative
Agent or any Lender of any power, right, privilege or remedy pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording, qualification or authorization of any Governmental Authority, the Borrower will, if reasonably requested
by the Administrative Agent, use commercially reasonable efforts to execute and deliver, or to cause the execution and delivery of, all
applications, certifications, instruments and other documents and papers that the Administrative Agent or such Lenders may be required
to obtain from the Borrower or any of its Restricted Subsidiaries for such governmental consent, approval, recording, qualification or
authorization.
7.12. Ratings. The Borrower will use commercially reasonable efforts to obtain and maintain (but not maintain any specific rating) a public corporate family and/or corporate credit rating, as applicable, and public ratings in respect of the Term Loans provided pursuant to this Agreement, in each case, from at least two of S&P, Moody’s and Fitch.
7.13. Post-Closing Items. Take all necessary actions to satisfy the items described on Schedule 7.13 within the period or by the date specified therein or, within such longer period of time or by such later date as reasonably consented to by the Administrative Agent.
SECTION
8. SECTION8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of Credit remains outstanding (other than to the extent such Letters of Credit have been Cash Collateralized or as to which other arrangements satisfactory to the applicable Issuing Lender shall have been made) or any Loan or other amount is owing to any Lender or the Administrative Agent hereunder, the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
8.1. Financial Condition Covenant. Permit the Consolidated Senior Secured Net Leverage Ratio, as of the last day of each fiscal quarter (commencing with the fiscal quarter ending September 30, 2023) on which any Revolving Facility Loans are outstanding to exceed 3.50:1.00.
8.2. Indebtedness. Create, issue, assume, become liable in respect of or otherwise Incur, or suffer to exist, any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b)
Indebtedness (i) of the Borrower to any Restricted Subsidiary, (ii) of any Subsidiary GuarantorU.S.
Loan Party to the Borrower or any Restricted Subsidiary, (iii) of any Canadian
Loan Party to any Canadian Borrower or any Restricted Subsidiary that is not a U.S.
Loan Party, (iv) of any Restricted Subsidiary Guarantorthat
is not a Loan Party to any other Restricted Subsidiary that is not a Subsidiary Guarantor
and (iv) subject toLoan Party, (v) to the extent permitted
by Section 8.7(j) or 8.7(z), of any Restricted Subsidiary that is not
a Subsidiary GuarantorLoan
Party to the Borrower or any Subsidiary GuarantorLoan
Party and (vi) to the extent permitted by Section 8.7, of any Canadian Loan Party to any U.S. Loan Party;
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(c)
(i) Guarantee Obligations Incurred by the Borrower or
any of its Restricted Subsidiaries of obligations of the Borrower, any Subsidiary GuarantorU.S.
Loan Party and, to the extent permitted pursuant to Section 8.7 (other than Section 8.7(c)), of any Restricted Subsidiary that
is not a Subsidiary Guarantor; andU.S.
Loan Party; (ii) Guarantee Obligations Incurred by any Restricted Subsidiary that is not a Subsidiary
GuarantorLoan Party of obligations of any
other Restricted Subsidiary that is not a Subsidiary Guarantor;Loan
Party; and (iii) Guarantee Obligations Incurred by the Canadian Borrower or any other Canadian Loan Party of obligations of any Canadian
Loan Party;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries outstanding on the Closing Date and listed on Schedule 8.2(d), and in each case, any Permitted Refinancing thereof;
(e) Indebtedness (including Capital Lease Obligations) secured by Liens permitted by Section 8.3(g) in an aggregate principal amount not to exceed, immediately after giving effect to the issuance or Incurrence of such Indebtedness and taken together with all such Indebtedness Incurred and then outstanding under this Section 8.2(e), the greater of (i) $75,000,000 and (ii) 35.0% of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1 and any Permitted Refinancing of such Indebtedness;
(f) Hedge Agreements permitted under Section 8.11;
(g) Indebtedness of Foreign Subsidiaries, and guarantees thereof by Foreign Subsidiaries (other than guarantees by any Canadian Loan Party of Indebtedness of any Foreign Subsidiary that is not a Canadian Loan Party), in an aggregate principal amount not to exceed the greater of (i) $75,000,000 and (ii) 35.0% of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1;
(h) unsecured Indebtedness of the Borrower in respect of Management Advances in an aggregate principal amount not to exceed $7,500,000 Incurred in any fiscal year;
(i) guarantees of Indebtedness of directors, officers and employees of Borrower or any of its Restricted Subsidiaries in respect of expenses of such Persons in connection with relocations and other ordinary course of business purposes, if the aggregate amount of Indebtedness so guaranteed, when added to the aggregate amount of unreimbursed payments theretofore made in respect of such guarantees and the amount of Investments then outstanding under Section 8.7(f), shall not at any time exceed $7,500,000;
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(j) (i) Indebtedness of a Restricted Subsidiary acquired in a Permitted Acquisition and outstanding at the time of such Permitted Acquisition, (ii) Indebtedness assumed at the time of a Permitted Acquisition of an asset securing such Indebtedness so long as, in the case of each of clauses (i) and (ii), (x) such Indebtedness was not Incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition and (y) the aggregate principal amount of such Indebtedness outstanding under this Section 8.2(j) does not at any time exceed the greater of (A) $50,000,000 and (B) 20.0% of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1 and (iii) any Permitted Refinancing of such Indebtedness under clause (i) or (ii);
(k) guarantees of Indebtedness of a Person which is not a Restricted Subsidiary of the Borrower and in which the Borrower or a Restricted Subsidiary made an investment permitted by Section 8.7(m) or preferred Capital Stock of a Foreign Subsidiary which such Foreign Subsidiary is obligated to purchase, redeem, retire or otherwise acquire, if the aggregate outstanding principal amount so guaranteed and the aggregate outstanding redemption value of such Capital Stock, when added to (i) unreimbursed payments theretofore made in respect of such guarantees and (ii) Investments then outstanding under Section 8.7(m), does not at any time exceed $7,500,000;
(l) to the extent constituting Indebtedness, obligations of any Group Member which is the seller or servicer in a Permitted Securitization in respect of any Standard Securitization Undertakings as to such Permitted Securitization and Guarantee Obligations of the Borrower or any other Loan Party as to such Indebtedness;
(m) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations (including in connection with workers’ compensation), or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case Incurred in the ordinary course of business;
(n) Indebtedness in respect of obligations under Specified Cash Management Arrangements, netting services, overdraft protections and otherwise in connection with deposit accounts;
(o) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guaranties, surety bonds or performance bonds securing the performance of the Borrower or any of its Restricted Subsidiaries pursuant to such agreements, in connection with permitted Investments or permitted Dispositions;
(p) Indebtedness consisting of promissory notes issued to present or former officers, directors or employees of any Group Member upon the death, disability, retirement or termination of employment or service of such officer, director or employee or otherwise to finance the purchase or redemption of Capital Stock of Borrower, to the extent the applicable Restricted Payment is permitted by Section 8.6;
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(q) Indebtedness representing insurance premiums owing in the ordinary course of business;
(r) Indebtedness of one or more Canadian Subsidiaries of the Borrower to the Borrower or any other Loan Party in an aggregate outstanding principal amount not at any time exceeding $25,000,000;
(s)
(i) Indebtedness of the Borrower or any Restricted Subsidiary Incurred in connection with a Permitted Acquisition; provided
that (A) (i) in the case of such Indebtedness that is secured, the Consolidated Senior Secured Net Leverage Ratio after giving effect
to the Incurrence thereof (subject to Section 1.3) is less than or equal to 3.00:1.00 (assuming for this purpose that any revolving commitments
being incurred pursuant to this Section 8.2(s) at the time of such calculation are fully drawn) and (ii) in the case of such Indebtedness
that is unsecured, if the Consolidated Interest Coverage Ratio is greater than or equal to 2.00:1.00, (B) (1) such Indebtedness is not
scheduled to mature prior to (x) in the case of such Indebtedness secured on a pari passu basis, the Latest Maturity Date and (y)
in the case of such Indebtedness secured on a junior basis or unsecured, the date that is ninety-one (91) days after the Latest Maturity
Date and (2) the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to
Maturity of the Term Loans, (provided that, this clause (B) shall not apply to any bridge loans permitted under this Section 8.2(s)
to the extent that the long-term indebtedness into which such bridge loans convert into otherwise satisfies the requirements of this clause
(B)), (C) such Indebtedness is not guaranteed by any Restricted Subsidiaries other than the Subsidiary
GuarantorsLoan Parties, (D) if such Indebtedness
is secured, the obligations in respect thereof shall not be secured by any property or assets of the Borrower or any Restricted Subsidiary
other than the Collateral and the security agreements relating to such Indebtedness are substantially the same as the Security Documents
(with such differences as are reasonably satisfactory to the Administrative Agent), (E) if such Indebtedness is secured, a Senior Representative
validly acting on behalf of the holders of such Indebtedness shall have become party to, if secured on a pari passu basis, a Pari
Debt Intercreditor Agreement and, if secured on a junior basis, an Intercreditor Agreement, and (ii) any Permitted Refinancing thereof,
(F) to the extent such Indebtedness consists of term loans secured by a Lien on the Collateral that ranks pari passu with the Liens securing
the Obligations, such Indebtedness shall be subject to the MFN Adjustment as if such Indebtedness were an Incremental Term Facility and
(G) the aggregate principal amount of such Indebtedness Incurred by any Restricted Subsidiary that is not a Subsidiary
GuarantorU.S. Loan Party (taken together
with the aggregate principal amount of Indebtedness under Sections 8.2(w) and 8.2(x) Incurred by any Restricted Subsidiary that is not
a Subsidiary GuarantorU.S.
Loan Party) shall not exceed the greater of (i) $60,000,00080,000,000
and (ii) 25.030.0%
of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been
delivered pursuant to Section 7.1;
(t) Indebtedness in respect of bid, workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance or surety, appeal or similar bonds issued for the account of and completion guarantees and other similar obligations provided by any Group Member in each case in the ordinary course of business and consistent with past practices, including guarantees or obligations with respect to letters of credit supporting such bid bonds, performance bonds, surety bonds and similar obligations;
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(u) Indebtedness representing deferred compensation to employees of the Borrower and its Restricted Subsidiaries permitted by the terms of this Agreement and Incurred in the ordinary course of business;
(v) Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt, Permitted Unsecured Refinancing Debt and any Permitted Refinancing thereof;
(w)
(i) Indebtedness of the Borrower or any Restricted Subsidiary in respect of one or more series of notes or loans that are either
senior or subordinated and unsecured or secured by Liens on the Collateral ranking junior to or pari passu with the Liens securing
the Obligations (or any bridge loans to the extent that the long-term indebtedness into which such bridge loans convert into otherwise
satisfies the requirements of this Section 8.2(w)) that are issued or made in lieu of Incremental Loans (any such Indebtedness, “Incremental
Equivalent Debt”); provided that (A) (1) such Indebtedness is not scheduled to mature prior to (x) in the case of such
Indebtedness secured on a pari passu basis, the Latest Maturity Date and (y) in the case of such Indebtedness secured on a junior
basis or unsecured, the date that is ninety-one (91) days after the Latest Maturity Date and (2) the Weighted Average Life to Maturity
of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans (provided that,
this clause (A) shall not apply to any bridge loans permitted under this Section 8.2(w) to the extent that the long-term indebtedness
into which such bridge loans convert into otherwise satisfies the requirements of this clause (A)), (B) the aggregate principal amount
of all such Indebtedness Incurred pursuant to this Section 8.2(w) shall not exceed the Incremental Amount, (C) such Indebtedness is not
guaranteed by any Restricted Subsidiaries other than the Subsidiary GuarantorsLoan
Parties, (D) in the case of such Indebtedness that is secured, the obligations in respect thereof shall not be secured by any
property or assets of the Borrower or any Restricted Subsidiary other than the Collateral and the security agreements relating to such
Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative
Agent), (E) such subordinated Incremental Equivalent Debt shall not provide for any scheduled prepayments of principal prior to the final
maturity date of such debt, (F) to the extent such Indebtedness consists of term loans secured by a Lien on the Collateral that ranks
pari passu with the Lien securing the Obligations, such Indebtedness shall be subject to the MFN Adjustment as if such Indebtedness were
an Incremental Term Facility, (G) if such Indebtedness is secured, a Senior Representative validly acting on behalf of the holders of
such Indebtedness shall have become party to, if secured on a pari passu basis, a Pari Debt Intercreditor Agreement and, if secured on
a junior basis, an Intercreditor Agreement, and (H) the aggregate principal amount of such Indebtedness Incurred by any Restricted Subsidiary
that is not a Subsidiary GuarantorU.S.
Loan Party (taken together with the aggregate principal amount of Indebtedness under Sections 8.2(s) and 8.2(x) Incurred by
any Restricted Subsidiary that is not a Subsidiary GuarantorU.S.
Loan Party) shall not exceed the greater of (i) $60,000,00080,000,000
and (ii) 25.030.0%
of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been
delivered pursuant to Section 7.1 and (ii) any Permitted Refinancing thereof;
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(x)
unsecured Indebtedness of the Borrower or any Restricted Subsidiary so long as, (i) such Indebtedness (A) (x) matures no earlier
than the Latest Maturity Date and (y) the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining
Weighted Average Life to Maturity of the Term Loans (provided that, this clause (A) shall not apply to any bridge loans to the
extent that the long-term indebtedness into which such bridge loans convert into otherwise satisfies the requirements of this clause (A))
and (B) with respect to any subordinated Indebtedness, does not require any mandatory prepayments, redemptions, sinking fund payments
or purchase offers prior to maturity, except in case of certain customary asset sales or changes of control (provided that, this
clause (B) shall not apply with respect to any mandatory prepayments of bridge loans permitted under this Section 8.2(x) with the proceeds
of other unsecured Indebtedness, including senior unsecured notes), (ii) the aggregate principal amount of such Indebtedness Incurred
by any Restricted Subsidiary that is not a Subsidiary GuarantorU.S.
Loan Party (taken together with the aggregate principal amount of Indebtedness under Sections 8.2(s) and 8.2(w) incurred by
any Restricted Subsidiary that is not a Subsidiary GuarantorU.S.
Loan Party) shall not exceed the greater of (A) $60,000,00080,000,000
and (B) 25.030.0%
of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been
delivered pursuant to Section 7.1 and (iii) subject to Section 1.3, on the date of the Incurrence of such Indebtedness, and any Permitted
Refinancing in respect thereof, as the case may be, after giving effect to the Incurrence thereof, the Consolidated Interest Coverage
Ratio would be greater than 2.00:1.00;
(y) additional Indebtedness of the Group Members in an aggregate principal amount not to exceed at any one time outstanding the greater of (i) $60,000,000 and (ii) 25.0% of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1; and
(z) unsecured Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount outstanding under this Section 8.2(z) not to exceed 100% of the amount of Net Cash Proceeds received by the Borrower from capital contributions or the issuance or sale of Capital Stock (other than Disqualified Capital Stock) to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment and any Permitted Refinancing thereof.
The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall not be deemed to be an Incurrence of Indebtedness for purposes of this Section 8.2. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
Notwithstanding the above, as to any Permitted Refinancing incurred under Section 8.2(e), (j), (s), (w), (x) or (z), to the extent the incurrence of such Permitted Refinancing would cause any applicable Dollar-based or Consolidated EBITDA-based cap or financial ratio restriction contained in such clause to be exceeded if calculated on the date such Permitted Refinancing is incurred, such Dollar-based or Consolidated EBITDA-based cap or financial ratio restriction, as applicable, shall be deemed not to have been exceeded solely as a result of the incurrence of such Permitted Refinancing so long as such Permitted Refinancing is permitted to be incurred pursuant to the definition of “Permitted Refinancing.”
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8.3. Liens. Create, become subject to, assume or otherwise incur, or suffer to exist, any Lien upon any of its property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes, assessments or government charges not yet due or that are being contested in good faith by appropriate proceedings and for which the relevant Group Member has set aside reserves with respect on its books in conformity with GAAP;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of more than sixty (60) days or that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance, old age pensions, or other social security or retirement benefits or similar legislation;
(d) (i) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business or (ii) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers;
(e) easements, rights-of-way, restrictions (including zoning restrictions) and other similar encumbrances and minor title defects or matters that would be disclosed in an accurate survey affecting real property incurred in the ordinary course of business that, in the aggregate, do not in any case materially interfere with the ordinary conduct of the business of any Group Member or materially detract from the value of the real property subject thereto;
(f) Liens created pursuant to the Loan Documents;
(g) Liens securing Indebtedness permitted by Section 8.2(e) if (i) such Liens are created substantially simultaneously with the Incurrence of such Indebtedness (for the acquisition of certain property) or within 270 days thereafter and (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness (except for additions and accessions to such assets, replacements and products thereof and customary deposits); provided, that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender;
(h) any interest or title of a lessor under any lease entered into by a Group Member in the ordinary course of its business and covering only the assets so leased and other statutory and common law landlords’ liens under leases;
(i) Liens in existence on the Closing Date and listed on Schedule 8.3(i), and modifications, replacements, renewals or extensions thereof; provided, that no such Lien is spread to cover any additional property after the Closing Date and the amount of the aggregate obligations, if any, secured by any such Lien are not increased;
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(j) attachment and judgment Liens, to the extent and for so long as the underlying judgments and decrees do not constitute an Event of Default pursuant to Section 9;
(k) Liens on property or assets acquired pursuant to a Permitted Acquisition, or on property or assets of a Restricted Subsidiary in existence at the time such Restricted Subsidiary is acquired pursuant to a Permitted Acquisition, if (i) any Indebtedness secured by such Liens is permitted by Section 8.2(j), and (ii) such Liens are not incurred in connection with, or in contemplation or anticipation of, such Permitted Acquisition and do not attach to any other asset of any Group Member; and Liens on such property or assets securing refinancings, renewals and extensions of such Indebtedness permitted under Section 8.2(j);
(l) Liens on assets of Foreign Subsidiaries securing Indebtedness permitted pursuant to Section 8.2(g);
(m) Liens on property subject to sale-leaseback transactions;
(n) licenses, sublicenses, leases or subleases granted to other Persons in the ordinary course of business that do not, individually or in the aggregate, materially interfere with the conduct of the business of the Borrower or any of its Restricted Subsidiaries taken as a whole;
(o) (i) any encumbrances or restrictions with respect to the Capital Stock of any Unrestricted Subsidiary, (ii) consisting of customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly Owned Subsidiaries and (iii) any encumbrance or restriction (including put and call arrangements) in favor of a joint venture party with respect to the Capital Stock of, or assets owned by, any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(p) any interest of any Group Member’s clients in vehicles that are on consignment to the Borrower and any proceeds thereof;
(q) Liens on Securitization Assets sold or transferred or purported to be sold or transferred to a Securitization Subsidiary in connection with a Securitization;
(r) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection or (ii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(s) Liens (i) on xxxxxxx money deposits of cash or Cash Equivalents in connection with any Investments made pursuant to Section 8.7(h) or 8.7(z) or (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 8.5;
(t) Liens in the nature of the right of setoff in favor of counterparties to contractual agreements with the Loan Parties in the ordinary course of business;
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(u) the filing of UCC or PPSA financing statements solely as a precautionary measure in connection with operating leases or consignment of goods and similar arrangements;
(v) 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;
(w) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 8.7;
(x) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto to the extent permitted under Section 8.2(q);
(y) Liens in connection with the sale or transfer of any assets in a transaction permitted under Section 8.5, customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof solely relating to such assets so sold or transferred;
(z)
Liens in favor of a Loan Party on assets of a Subsidiary that is not required to be a Subsidiary
GuarantorLoan Party;
(aa) Liens on Collateral securing Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt, secured Indebtedness Incurred pursuant to Section 8.2(v) (provided that, if secured on a pari passu basis, a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to a Pari Debt Intercreditor Agreement, and if secured on a junior basis, a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to an Intercreditor Agreement) and any Permitted Refinancing thereof;
(bb) Permitted Encumbrances;
(cc) Liens solely on the proceeds of Escrow Debt and any interest thereof, securing the applicable Escrow Debt;
(dd)
Liens not otherwise permitted by this Section 8.3 so long as (A) neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value (determined as of the date such Lien is incurred) of the assets subject
thereto exceeds at any one time the greater of (x) $60,000,000 and (y) 25.0% of Consolidated EBITDA for the most recently ended period
of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1 and (B) to the extent such
Lien is on all or any part of the Collateral and secures Indebtedness for borrowed money, such Lien shall rank junior to the Liens securing
the Obligations; and
(ee)
Liens securing Indebtedness permitted by Section 8.2(s) and Section 8.2(w).;
(ff) statutory Liens or deemed trusts in respect of contributions to a Canadian Pension Plan or Canadian Multi-Employer Pension Plan (i) that are not yet due, (ii) that are being contested in good faith by appropriate proceedings, (iii) for which the relevant Loan Party has set aside reserves with respect on its books in conformity with GAAP or (iv) that are inadvertently delinquent by the relevant Loan Party as a result of reasonable error, provided that any contribution arrears described in this (iv) are not material and are rectified within thirty (30) days of the relevant Loan Party becoming aware thereof; and
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(gg) Liens in existence on the First Amendment Effective Date granted in favour of the City of Saint-Eustache to secure certain obligations with respect to real property owned by Adesa Montreal Corporation in favour of the City of St-Eustache as more fully described in the deed registered at the Cadastre of Quebec, Registration Division of Deux-Montagnes under number 28 448 011.
8.4. Fundamental Changes. Merge into, consolidate or amalgamate with any other Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), Dispose of, all or substantially all of its property or business or (solely with respect to the Borrower) change its jurisdiction of organization to any jurisdiction outside of the United States, except:
(a)
that (i) any Restricted Subsidiary of the Borrower (other
than the Canadian Borrower) may be merged, amalgamated, consolidated or liquidated (iA) with
or into the Borrower if the Borrower is the continuing or surviving corporationentity,
(iiB)
with or into any Subsidiary GuarantorLoan
Party if the Subsidiary GuarantorLoan
Party is the continuing or surviving corporation or (iii) subject toentity;
provided that, no U.S. Loan Party may be merged, amalgamated, consolidated or liquidated with or into any Canadian Loan Party unless (x)
the U.S. Loan Party is the continuing or surviving entity or (y) such transaction is permitted by Section 8.7,
or (jC)
to the extent permitted by Section 8.7, with or into any Foreign
Subsidiary; and(ii)
any Restricted Subsidiary that is not a Loan Party may be merged, amalgamated or consolidated with or into any other Restricted Subsidiary
that is not a Loan Party; and
(iii) any Restricted Subsidiary of the Canadian Borrower may be merged, amalgamated or consolidated with or into (A) the Canadian Borrower
if the Canadian Borrower is the continuing or surviving entity or (B) any Canadian Loan Party if the Canadian Loan Party is the continuing
or surviving entity;
(b)
that (i) any Restricted Subsidiary of the Borrower (other
than the Canadian Borrower) may Dispose of any or all of its assets (upon voluntary liquidation, winding up, dissolution or
otherwise) as permitted by Section 8.5 (other than Section 8.5(c)), or to the Borrower or any Subsidiary
Guarantor or, subjectLoan Party (provided that, no
U.S. Loan Party may Dispose of any or all of its assets to a Canadian Loan Party unless such transaction is permitted pursuant
to Section 8.7(j) or,
to the extent permitted by Section 8.7, any Foreign Subsidiary; and(ii)
any Restricted Subsidiary that is not a Loan Party may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to
any other Restricted Subsidiary that is not a Loan Party and (iii) any
Restricted Subsidiary of the Canadian Borrower may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any
Canadian Loan Party;
(c) any Restricted Subsidiary (other than the Canadian Borrower) may merge into, amalgamated or consolidate with any Person in order to consummate a Disposition made in compliance with Section 8.5 (other than Section 8.5(c)) in which the surviving entity is not a Subsidiary;
153
(d) any Restricted Subsidiary (other than the Canadian Borrower) may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect;
(e)
any merger, consolidation or amalgamation between the Borrower or a Subsidiary GuarantorLoan
Party, on the one hand, and any other Person, on the other hand; provided, that the Borrower or such Subsidiary
GuarantorLoan Party (or (other than in
the case of any merger, consolidation or amalgamation involving the Borrower or
the Canadian Borrower) such other Person to the extent it becomes a Subsidiary GuarantorLoan
Party substantially concurrently with such merger, consolidation or amalgamation), as the case may be, is the surviving entity
of any such merger, consolidation or amalgamation; and
(f) any merger, consolidation or amalgamation between a Restricted Subsidiary that is not a Loan Party, on the one hand, and any other Person, on the other hand; provided, that such Restricted Subsidiary (or such other Person to the extent it becomes a Restricted Subsidiary substantially concurrently with such merger, consolidation or amalgamation) is the surviving entity of any such merger, consolidation or amalgamation.
8.5. Disposition of Property. Dispose of any of its property, whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except:
(a) the Disposition of (i) obsolete, used, surplus or worn out property in the ordinary course of business (including the abandonment or other Disposition of Intellectual Property that is in the reasonable judgment of the Borrower, no longer economically practicable to maintain or used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole), (ii) Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Restricted Subsidiaries and (iii) cash and Cash Equivalents;
(b) the sale of inventory or the licensing, sublicensing or other disposition of Intellectual Property in the ordinary course of business;
(c) Dispositions permitted by Sections 8.4(a), 8.4(b) and 8.4(e);
(d)
the sale or issuance of (i) Capital Stock of any Restricted Subsidiary to the Borrower or any Subsidiary
GuarantorLoan Party (excluding any sale or issuance
of Capital Stock of any U.S. Loan Party to a Canadian Loan Party) and (ii) Capital Stock of any Subsidiary that is not a Subsidiary
GuarantorLoan Party to any other Subsidiary
that is not a Subsidiary GuarantorLoan
Party;
(e) sale-leaseback transactions;
(f) sales, transfers or dispositions by the Borrower or any of its Restricted Subsidiaries of non-strategic assets purchased as part of a Permitted Acquisition, so long as (i) no Default then exists or would result therefrom, (ii) the Borrower or such Restricted Subsidiary receives at least fair market value (as determined in good faith by the Borrower), (iii) the aggregate proceeds received by the Borrower or such Restricted Subsidiary from all such sales, transfers or dispositions relating to a given Permitted Acquisition do not exceed 40% of the aggregate consideration paid for such Permitted Acquisition and (iv) such non-strategic assets are sold, transferred or disposed of on or prior to the first anniversary of such Permitted Acquisition;
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(g) the sale of Securitization Assets to one or more Securitization Subsidiaries in connection with a Permitted Securitization;
(h)
Dispositions of property from (a) the Borrower to any Subsidiary GuarantorU.S.
Loan Party, (b) any Subsidiary GuarantorU.S.
Loan Party to any other U.S. Loan Party, (c) any Canadian Loan Party to any other Loan Party and (cd)
any Restricted Subsidiary that is not a Subsidiary GuarantorLoan
Party to any other Restricted Subsidiary that is not a Subsidiary GuarantorLoan
Party or to any Loan Party;
(i) Dispositions permitted by Section 8.3, Section 8.6 and Section 8.7;
(j) leases or subleases of property in the ordinary course of business which do not materially interfere with the conduct of the business of the Borrower or any of its Restricted Subsidiaries taken as a whole;
(k) Dispositions of property in connection with Recovery Events;
(l) Dispositions of past due accounts receivable in connection with the collection, write down or compromise thereof in the ordinary course of business;
(m) Asset Swaps;
(n)
sales, transfers, leases and other dispositions to a Foreign Subsidiary; provided, that any such sales, transfers, leases
or other dispositions from the Borrower or any Subsidiary GuarantorLoan
Party shall be made (i) in compliance with Section 8.9 and (ii) to the extent not made in compliance with Section 8.9, shall
be treated as an Investment in such Foreign Subsidiary and shall be permitted only to the extent permitted pursuant to Section 8.7;
(o) Dispositions of Investments in joint ventures, to the extent required by, or made pursuant to buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; provided that the consideration received shall be in an amount at least equal to the fair market value thereof (determined in good faith by the Borrower);
(p) sales, forgiveness or other dispositions of accounts receivable in the ordinary course of business in connection with the collection or compromise thereof;
(q) any issuance or sale of Capital Stock in, or sale of Indebtedness or other securities of, an Unrestricted Subsidiary;
(r) the issuance of Capital Stock by a Restricted Subsidiary that represents all or a portion of the consideration paid by the Borrower or a Restricted Subsidiary in connection with any Investment permitted by Section 8.7, including in connection with the formation of a joint venture with a Person other than a Restricted Subsidiary;
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(s) Dispositions of other property; provided that (i) at the time of such Disposition, no Default or Event of Default shall have occurred and been continuing or would result from such Disposition, (ii) with respect to any Disposition pursuant to this Section 8.5(s) of property having an aggregate fair market value (determined as of the closing of such Disposition) that exceeds $10,000,000, the Borrower or any of its Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents; provided, however, that for the purposes of this clause (ii), the following shall be deemed to be cash: (A) any liabilities (as shown on the Borrower’s most recent balance sheet provided hereunder or in the footnotes thereto) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in writing, (B) any securities received by the Borrower or the applicable Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (C) aggregate non-cash consideration received by the Borrower or the applicable Restricted Subsidiary having an aggregate fair market value (determined as of the closing of the applicable Disposition for which such non-cash consideration is received) not to exceed $10,000,000 and (iii) such Disposition is for fair market value as reasonably determined by the Borrower in good faith;
(t) Dispositions of Capital Stock deemed to occur upon the exercise of stock options, warrants or other equity derivatives or settlement of convertible securities if such Capital Stock represent (i) a portion of the exercise price thereof or (ii) withholding incurred in connection with such exercise;
(u) termination, assignment or unwinding of any Hedge Agreement; and
(v) other Dispositions of property having an aggregate fair market value not in excess of $10,000,000 (as determined by the Borrower in good faith).
8.6. Restricted Payments. Declare or pay any dividend (other than dividends payable solely in Capital Stock (other than Disqualified Capital Stock) of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Group Member (collectively, “Restricted Payments”), except that:
(a) any Restricted Subsidiary may make Restricted Payments to the Borrower or any other Restricted Subsidiary (and, in the case of a Restricted Payment by a non-Wholly Owned Subsidiary, to (x) the Borrower or any Restricted Subsidiary and (y) to each other owner of Capital Stock of such Restricted Subsidiary based on their relative ownership interests);
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(b) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may purchase the Borrower’s Capital Stock from present or former officers, directors or employees of any Group Member upon the death, disability, retirement or termination of employment or service of such officer, director or employee or otherwise under any stock option or employee stock ownership plan approved by the board of directors of the Borrower, in an aggregate amount (net of any proceeds received by the Borrower in connection with resales of any Capital Stock so purchased) not exceeding $7,500,000 in any fiscal year (with unused amounts carried over to the succeeding fiscal year);
(c) [reserved];
(d) Restricted Payments by the Borrower to redeem in whole or in part any of its Capital Stock for another class of its Capital Stock or rights to acquire its Capital Stock or with proceeds from substantially concurrent equity contributions or issuances of new Capital Stock; provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Capital Stock are at least as advantageous to the Lenders as those contained in the Capital Stock redeemed thereby; provided, further, that the only consideration paid for any such redemption is Capital Stock of the Borrower or the proceeds of any substantially concurrent equity contribution or issuance of Capital Stock;
(e)
(i) the Borrower may make Restricted Payments in an aggregate amount not
to exceed (x) the Fixed Restricted Payment Basket Amount in any fiscal year, less (y) any Restricted Payments made pursuant to
this Section 8.6(e), any Investments made pursuant to Section 8.7(z) and any repayments, repurchases, redemptions, defeasances or other
acquisitions, retirements or discharges of Junior Debt pursuant to Section 8.8, in each case made in reliance on the Fixed Restricted
Payment Basket Amount during such fiscal year, plus (z) the Available Amount, in each case, so long as (A) no Event of Default
has occurred and is continuing or would result therefrom and (B) (other than with respect to clause (b) of the “Available Amount”
definition) on a pro forma basis (giving effect to such payment and all related transactions, including the Incurrence and use of proceeds
of all Indebtedness Incurred in connection therewith) the Consolidated Net Leverage Ratio on the most recent Test Date did not exceed
4.00:1.00 and (ii) the Borrower shall be permitted to make unlimited Restricted
Payments so long as no Event of Default has occurred and is continuing or would result therefrom and the Consolidated Senior Secured Net
Leverage Ratio is less than 3.00:1.00 after giving pro forma effect to such Restricted Payment;
(f) the Borrower may repurchase its Capital Stock upon the exercise of stock options, warrants or other equity derivatives or settlement of convertible securities if such Capital Stock represents a portion of the exercise price of such options, warrants or other equity derivatives or the settlement price of such convertible securities; provided that such repurchase shall not be paid in cash;
(g) the Borrower may make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock in the Borrower;
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(h) the Borrower may make Restricted Payments in an aggregate amount not to exceed the aggregate amount of net cash proceeds received from sales or issuances of the Capital Stock of the Borrower (other than Disqualified Capital Stock) after the Closing Date to the extent such net cash proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment;
(i) any repurchase of Capital Stock deemed to occur upon the non-cash exercise of Capital Stock to pay Taxes shall be permitted; and
(j) the payment of any dividend or distribution, or the consummation of any irrevocable redemption, within sixty (60) days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at such date of declaration or redemption notice such dividend, distribution or redemption, as the case may be, would have complied with this Section 8.6 shall be permitted.
8.7. Investments. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of any Person (all of the foregoing, “Investments”), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 8.2;
(d) Guarantee Obligations to insurers required in connection with worker’s compensation and other insurance coverage arranged in the ordinary course of business;
(e) Investments held by the Borrower or any Restricted Subsidiary on the Closing Date and described on Schedule 8.7(e);
(f) loans and advances to directors, officers and employees of any Group Member of the Borrower in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for all Group Members, together with the aggregate amount of Indebtedness outstanding under Section 8.2(i), not to exceed $7,500,000 at any one time outstanding;
(g) non-cash consideration received in any Disposition permitted by Section 8.5;
(h)
any Permitted Acquisition; provided that, if on a pro forma basis after giving effect to such Permitted Acquisition the
Consolidated Net Leverage Ratio exceeds 4.50:1.00, then the aggregate amount of consideration paid in respect of all Permitted Acquisitions
of (x) Persons that do not become Subsidiary GuarantorsU.S.
Loan Parties and/or (y) assets that do not become Collateral securing
the U.S. Secured Obligations shall not exceed 15.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries
for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to
Section 7.1;
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(i)
intercompany Investments by any Group Member in the Borrower or any Person that, prior to such Investment, is a Subsidiary
Guarantor;Loan Party; provided that, no Investment
shall be made pursuant to this Section 8.7(i) by a U.S. Loan Party in a Canadian Loan Party;
(j)
Investments (x) in Restricted Subsidiaries that are not Subsidiary GuarantorsLoan
Parties (including Permitted Acquisitions of Persons which become Foreign Subsidiaries, Incurrence of Guarantee Obligations
with respect to obligations of Foreign Subsidiaries, loans made to Foreign Subsidiaries and Investments resulting from mergers with or
sales of assets to any such Foreign Subsidiaries) or,
(y) made pursuant to clause (x) in conjunction with joint ventures or other similar agreements or partnerships or
(z) by a U.S. Loan Party in a Canadian Loan Party, in each case so long as the aggregate amount of all such Investments made
by the Borrower or any of its Restricted Subsidiaries pursuant to this Section 8.7(j) does not, immediately after giving effect to such
Investments (subject to Section 1.3), exceed the greater of (i) $200,000,000 and (ii) 65.0% of Consolidated EBITDA for the most recently
ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1;
(k) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in good faith settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(l) Hedge Agreements permitted under Section 8.11;
(m) intercompany Investments by any Restricted Subsidiary that is not a Loan Party in any other Restricted Subsidiary that is not a Loan Party;
(n) transactions permitted by Sections 8.3 and 8.4 (other than Sections 8.4(e) and 8.4(f));
(o) Asset Swaps consummated in compliance with Section 8.5;
(p) Investments that are captured by, added to the value of or consisting of the Seller’s Retained Interests in connection with a Permitted Securitization;
(q) intercompany loans permitted by Section 8.2;
(r) advances of payroll payments to employees in the ordinary course of business;
(s) lease, utility and other similar deposits in the ordinary course of business;
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(t) Investments to the extent financed by the issuance of Capital Stock of the Borrower;
(u) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary; provided such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary and any modification, replacement, renewal or extension thereof;
(v) any Investment in an aggregate amount not to exceed at any time the aggregate amount of Net Cash Proceeds received from sales or issuances of Capital Stock of the Borrower after the Closing Date to the extent such Net Cash Proceeds have not been otherwise applied to build the Available Amount or any other basket for the incurrence of Indebtedness or the making of any Investment or Restricted Payment;
(w) Investments (i) in Restricted Subsidiaries in connection with reorganizations or other activities related to tax planning; provided that, after giving effect to any such reorganization or other activity related to tax planning, the security interest of the Administrative Agent (for the benefit of the Secured Parties) in the Collateral, taken as a whole, is not materially impaired with respect of any of the Facilities and (ii) by any Loan Party in any Restricted Subsidiary that is not a Loan Party consisting of the contribution of Capital Stock of any Person that is not a Loan Party (other than Capital Stock constituting Collateral);
(x) guarantees of leases (other than Capital Lease Obligations), contracts, or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(y) Permitted Foreign Investments;
(z)
subject to Section 1.3, (i) the Borrower may make Investments in an aggregate
amount not to exceed (x) the Fixed Restricted Payment Basket Amount in any fiscal year, less (y) any Investments made pursuant
to this Section 8.7(z), any Restricted Payments made pursuant to Section 8.6(e), and any repayments, repurchases, redemptions, defeasances
or other acquisitions, retirements or discharges of Junior Debt pursuant to Section 8.8, in each case made in reliance on the Fixed Restricted
Payment Basket Amount during such fiscal year, plus (z) the Available Amount, in each case, so long as (A) no Event of Default
has occurred and is continuing or would result therefrom and (B) (other than with respect to clause (b) of the “Available Amount”
definition) on a pro forma basis (giving effect to such Investment and all related transactions, including the Incurrence and use of proceeds
of all Indebtedness Incurred in connection therewith) the Consolidated Net Leverage Ratio on the most recent Test Date did not exceed
5.00:1.00 and (ii) the Borrower shall be permitted to make unlimited Investments
so long as no Event of Default has occurred and is continuing or would result therefrom and the Consolidated Senior Secured Net Leverage
Ratio is less than 3.00:1.00 after giving pro forma effect to such Investment;
(aa) in addition to Investments otherwise expressly permitted by this Section 8.7, Investments by the Borrower or any of its Restricted Subsidiaries in an aggregate amount at any time outstanding not exceeding the greater of (i) $75,000,000 and (ii) 35.0% of Consolidated EBITDA for the most recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 7.1;
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(bb) Guarantee Obligations of the Borrower in connection with obligations of the Restricted Subsidiaries party to Specified Hedge Agreements and Specified Cash Management Arrangements; and
(cc) any Investments in any Subsidiary or joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business; provided that any entity that serves to hold cash balances for the purposes of making such advances to Subsidiaries or joint ventures is a Loan Party.
For purposes of covenant compliance with this Section 8.7, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment. In addition, to the extent an Investment is permitted to be made by any Group Member directly in any other Person (each such person, a “Target Person”) under any provision of this Section 8.7, such Investment may be advanced or contributed by the Group Member to a Restricted Subsidiary that is not a Loan Party for purposes of ultimately making the relevant Investment in the Target Person without such advancement or contribution constituting an Investment for purposes of Section 8.7 (it being understood that such Investment must satisfy the requirements of, and shall count toward any thresholds or baskets in, the applicable clause under Section 8.7 as if made by the applicable Group Member directly in the Target Person).
8.8. Optional Payments and Modifications of Certain Debt Instruments; Certain Modifications. (a) Make or offer to make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to any subordinated Indebtedness of the Borrower or any of its Restricted Subsidiaries in an aggregate outstanding principal amount in excess of $25,000,000 (including in such principal amount all indebtedness issued under the same instrument) (collectively, “Junior Debt”) (other than in connection with Junior Debt, a Permitted Refinancing therefor or the conversion of any Junior Debt to Capital Stock of the Borrower (other than Disqualified Capital Stock)); provided, that on any date after the Closing Date, the Borrower or its Restricted Subsidiaries may (i) redeem, repurchase, defease or otherwise prepay Junior Debt in an aggregate amount not to exceed (x) the Fixed Restricted Payment Basket Amount in any fiscal year, less (y) any Restricted Payments made pursuant to Section 8.6(e), any Investments made pursuant to Section 8.7(z) and any repayments, repurchases, redemptions, defeasances or other acquisitions, retirements or discharges of Junior Debt pursuant to this Section 8.8, in each case made in reliance on the Fixed Restricted Payment Basket Amount during such fiscal year, plus (z) the Available Amount, in each case, so long as (A) no Event of Default has occurred and is continuing or would result therefrom and (B) (other than with respect to clause (b) of the “Available Amount” definition) on a pro forma basis (giving effect to such payment and all related transactions, including the Incurrence and use of proceeds of all Indebtedness Incurred in connection therewith), the Consolidated Net Leverage Ratio on the most recent Test Date did not exceed 4.00:1.00, (ii) redeem, repurchase, defease or otherwise prepay Junior Debt in an unlimited amount, so long as no Event of Default has occurred and is continuing or would result therefrom and the Consolidated Senior Secured Net Leverage Ratio is less than 3.00:1.00, (iii) convert any Junior Debt to Capital Stock (other than Disqualified Capital Stock) and (iv) prepay, redeem, purchase or defease any Junior Debt with any Permitted Refinancing thereof permitted pursuant to Section 8.2, or (b) amend, modify, waive or otherwise change, or consent or agree to any amendment, modification, waiver or other change to, any of the terms of any of the Junior Debt (other than technical corrections or modifications) which (i) shortens the fixed maturity or increases the principal amount of, or increases the rate or shortens the time of payment of interest on, or increases the amount or shortens the time of payment of any principal or premium payable whether at maturity, at a date fixed for prepayment or by acceleration or otherwise of the Indebtedness evidenced by any Junior Debt, or increases the amount of, or accelerates the time of payment of, any fees or other amounts payable in connection therewith or (ii) otherwise materially and adversely affects the interests of the Lenders, taken as a whole, under this Agreement or any other Loan Document without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); provided that it is understood and agreed that the foregoing limitation shall not prohibit any Permitted Refinancing Indebtedness in respect thereof that is otherwise permitted by Section 8.2.
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8.9. Transactions with Affiliates. Enter into any transaction with a value in excess of $5,000,000, including any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate (other than the Borrower or its Restricted Subsidiaries), unless such transaction is (i) otherwise permitted under this Agreement and (ii) upon fair and reasonable terms not materially less favorable to the relevant Group Member, than it would obtain in an arm’s length transaction with a Person that is not an Affiliate. Notwithstanding the foregoing, the Borrower and its Restricted Subsidiaries may do the following:
(a) Restricted Payments may be made to the extent permitted by Section 8.6;
(b) loans may be made and other transactions may be entered into by the Borrower and its Restricted Subsidiaries to the extent permitted by Sections 8.2, 8.4, 8.5 and 8.7;
(c) customary fees and indemnifications may be paid to directors of the Borrower and its Restricted Subsidiaries;
(d) the Borrower and its Restricted Subsidiaries may enter into, and may make payments under, employment agreements, employee benefits plans, stock option plans, indemnification provisions and other similar compensatory arrangements with officers, employees and directors of the Borrower and its Restricted Subsidiaries in the ordinary course of business;
(e) [reserved];
(f) transactions related to Permitted Securitizations;
(g) sales of Capital Stock (other than Disqualified Capital Stock) of the Borrower to its Affiliates and options and warrants exercisable therefore and the granting of registration and other customary rights in connection therewith;
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(h) any transaction with an Affiliate where the only consideration paid is Capital Stock of the Borrower (other than Disqualified Capital Stock);
(i) any transaction with an Affiliate existing on the Closing Date and listed on Schedule 8.9(i);
(j) the execution, delivery and performance of any amendments to the stockholders’ agreements and registration rights agreement of the Borrower entered into in connection with the initial registered public offering of voting Capital Stock of the Borrower in form and substance reasonably acceptable to the Administrative Agent;
(k) leases or subleases of property in the ordinary course of business not materially interfering with the business of the Borrower and the Restricted Subsidiaries taken as a whole;
(l) transactions between or among the Borrower and/or any Restricted Subsidiary and any entity that becomes a Restricted Subsidiary as a result of such transaction;
(m) any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into the Borrower or any of its Restricted Subsidiaries pursuant to the terms of this Agreement; provided that such agreement was not entered into in contemplation of such acquisition or merger, or any amendment thereto (so long as any such amendment is not disadvantageous to the Lenders in any material respect in the good faith judgment of the Borrower when taken as a whole as compared to such agreement as in effect on the date of such acquisition or merger); and
(n) any other transactions with an Affiliate, which is approved by a majority of Disinterested Directors of the Borrower in good faith.
8.10. [Reserved]Canadian Pension Plan and Canadian Multi-Employer Pension Plan. .
(a) For any existing, or hereafter adopted, Canadian Pension Plan or Canadian Multi-Employer Pension Plan,
(i) fail to, in a timely fashion, comply with and perform in all respects all of its obligations under and in respect of such Canadian Pension Plan and Canadian Multi-Employer Pension Plan, including under any funding agreements and all applicable laws (including any fiduciary, funding, investment and administration obligations), except as would not reasonably be expected to have a Material Adverse Effect;
(ii) fail to pay or remit in a timely fashion in accordance with the terms thereof all material employer or employee payments, contributions or premiums required to be remitted, paid to or in respect of each Canadian Pension Plan and Canadian Multi-Employer Pension Plan, any funding agreements and all applicable laws (provided that any Loan Party shall have a thirty (30) day cure period in the event any such payments, contributions or premiums have not been paid or remitted when due); and
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(iii) contribute to or assume or cause an obligation to contribute to or have any liability in respect of any Canadian Defined Benefit Pension Plan or Canadian Multi-Employer Pension Plan that contains a “defined benefit provision”, as such term is defined in subsection 147.1(1) of the Canadian Tax Act, without the prior written consent of the Administrative Agent (which consent shall not be unreasonably withheld).
8.11. Hedge Agreements. Enter into any Hedge Agreement, except (a) Hedge Agreements entered into to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary has actual or anticipated exposure (other than those in respect of Capital Stock) and (b) Hedge Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Restricted Subsidiary.
8.12. Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on or about a day other than December 31 or change the Borrower’s method of determining fiscal quarters without the prior consent of the Administrative Agent (not to be unreasonably withheld).
8.13. Negative Pledge Clauses. Enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of any Loan Party to create, become subject to, assume or otherwise incur, or suffer to exist, any Lien upon any of its assets, whether now owned or hereafter acquired, to secure its obligations under the Loan Documents to which it is or may become a party other than (a) this Agreement, the other Loan Documents and under any Hedge Agreement permitted under Section 8.11; (b) any agreements governing any purchase money Liens or Capital Lease Obligations otherwise permitted hereby, if the prohibition or limitation therein is only effective against the assets financed thereby; (c) agreements for the benefit of the holders of Liens described in Section 8.3(k) or 8.3(l) and applicable solely to the property subject to such Lien; (d) agreements related to any Permitted Securitization, (e) covenants in documents creating Liens permitted by Section 8.3(k) prohibiting further Liens on the properties encumbered thereby; (f) any other agreement that does not restrict in any manner (directly or indirectly) Liens created pursuant to the Loan Documents on any Collateral securing the Secured Obligations or securing any Credit Agreement Refinancing Indebtedness and does not require the direct or indirect granting of any Lien securing any Indebtedness or other obligation by virtue of the granting of Liens on or pledge of property of any Loan Party to secure the Secured Obligations; (g) covenants in any Indebtedness permitted pursuant to Section 8.2 to the extent such restrictions or conditions are no more restrictive, taken as a whole, than the restrictions and conditions in the Loan Documents or, in the case of subordinated Indebtedness, are market terms at the time of issuance or, in the case of Indebtedness of any Restricted Subsidiary that is not a Loan Party, are imposed solely on any Restricted Subsidiary that is not a Loan Party; (h) any prohibition or limitation that (1) exists pursuant to Requirements of Law or any request of any Governmental Authority having regulatory authority over the Borrower or any of its Subsidiaries, (2) consists of customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 8.5 pending the consummation of such sale, solely with respect to such property subject to such sale, (3) is contained in leases, subleases, licenses, sublicenses or similar agreements, in each case, so long as such provisions are customary and such leases, subleases, licenses or similar agreements were entered into in the ordinary course of business, (4) exists in any agreement or other instrument of a Person acquired by or merged, amalgamated or consolidated with or into the Borrower or any Restricted Subsidiary, or of an Unrestricted Subsidiary that is designated a Restricted Subsidiary, or that is assumed in connection with the acquisition of assets from such Person, in each case that is in existence at the time of such transaction (but not created in contemplation thereof), (5) is imposed by any amendments or refinancings that are otherwise permitted by the Loan Documents of the contracts, instruments or obligations referred to in clauses (b), (f), (g) or (h)(4); provided that such amendments and refinancings are, taken as a whole, no more materially restrictive with respect to such prohibitions and limitations than those prior to such amendment or refinancing; (i) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (j) any agreement existing on the Closing Date and listed in Schedule 8.13; (k) customary restrictions that arise in connection with any Lien permitted by Section 8.3 on any asset or property that is not, and is not required to be, Collateral that relates to the asset or property subject to such Lien; (l) any restrictions and conditions imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of any contract, instrument or obligation referred to in clauses (a) through (j) above; provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, no more restrictive with respect to such restrictions taken as a whole than those in existence prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing; and (m) customary provisions in joint venture agreements, partnership agreements or limited liability company governance documents and other similar agreements applicable to joint ventures or non-Wholly Owned Subsidiaries and applicable solely to such joint venture or non-Wholly Owned Subsidiary.
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8.14. Clauses Restricting Subsidiary Distributions. Enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary of any Group Member to (a) make Restricted Payments in respect of any Capital Stock of such Restricted Subsidiary held by, or pay any Indebtedness owed to, any Group Member or (b) make loans or advances to, or transfer any of its assets to, any Group Member, except for such encumbrances or restrictions existing under or by reason of (i) any restrictions existing under the Loan Documents, (ii) any encumbrance or restriction pursuant to applicable law or an agreement in effect at or entered into on the Closing Date, (iii) any encumbrance or restriction with respect to a Restricted Subsidiary or any of its Restricted Subsidiaries pursuant to an agreement relating to any Indebtedness Incurred by such Restricted Subsidiary prior to the date on which it became a Restricted Subsidiary (other than Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary) and outstanding on such date, which encumbrance or restriction is not applicable to the any other Group Member or the properties or assets of any other Group Member, (iv) any encumbrance or restriction pursuant to an agreement effecting a refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (i), (ii) or (iii) of this covenant or this clause (iv) or contained in any amendment to an agreement referred to in clause (i), (ii) or (iii) of this covenant or this clause (iv); provided, however, that the encumbrances and restrictions contained in any such refinancing agreement or amendment are not materially less favorable taken as a whole, as determined by the Borrower in good faith, to the Lenders than the encumbrances and restrictions contained in such predecessor agreement, (v) with respect to clause (c), any encumbrance or restriction (A) that restricts the subletting, assignment or transfer of any property or asset or right and is contained in any lease, license or other contract entered into in the ordinary course of business or (B) contained in security agreements securing Indebtedness of a Restricted Subsidiary to the extent such encumbrance or restriction restricts the transfer of the property subject to such security agreements, (vi) any restrictions with respect to a Restricted Subsidiary imposed pursuant to an agreement that has been entered into in connection with the Disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary, (vii) any encumbrances or restrictions applicable solely to a Restricted Subsidiary that is not a Loan Party and contained in any credit facility extended to any such Restricted Subsidiary; (viii) restrictions in the transfers of assets encumbered by a Lien permitted by Section 8.3, (ix) any encumbrance or restriction arising under or in connection with any agreement or instrument relating to any Indebtedness permitted by Section 8.2 if (A) the Borrower in good faith determines that such encumbrance or restriction will not cause the Borrower not to have the funds necessary to pay the Obligations when due and (B) the encumbrance or restriction is not materially more disadvantageous to the Lenders, taken as a whole, than is customary in comparable financings (as determined in good faith by the Borrower), (x) any encumbrance or restriction arising under or in connection with any agreement or instrument governing Capital Stock of any Person other than a Wholly Owned Subsidiary that is acquired after the Closing Date, (xi) customary restrictions and conditions contained in any agreement relating to the Disposition of any property permitted by Section 8.5 pending the consummation of such Disposition, (xii) customary provisions in joint venture agreements and other similar agreements applicable to joint ventures, (xiii) any encumbrance or restriction in agreements related to any Permitted Securitization, (xiv) any holder of a Lien permitted by Section 8.3(k) restricting the transfer of the property subject thereto, (xv) customary restrictions and conditions contained in any agreement relating to the sale of any property permitted under Section 8.5 pending the consummation of such sale, (xvi) customary provisions in partnership agreements, limited liability company organizational governance documents, asset sale and stock sale agreements and other similar agreements entered into in the ordinary course of business that restrict the transfer of ownership interests in such partnership, limited liability company or similar person, (xvii) provisions in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any class of Capital Stock of a Person other than on a pro rata basis, (xviii) provisions in the Senior Notes Indenture, as in effect on the Closing Date and (xix) any restrictions and conditions imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of any contract, instrument or obligation referred to in clauses (i) through (xviii) above; provided that such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, no more restrictive with respect to such restrictions taken as a whole than those in existence prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
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8.15. Lines of Business. Enter into any business, either directly or through any Restricted Subsidiary, except for those businesses in which the Borrower and its Restricted Subsidiaries are engaged on the Closing Date or that are reasonably related thereto or similar or complementary thereto or are reasonable extensions thereof.
SECTION
9. SECTION9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower or the Canadian Borrower shall fail to pay (i) any principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof or (ii) any interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder or under any other Loan Document, within five (5) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made; or
(c) any Loan Party shall fail to observe or perform any agreement contained in clause (i) or (ii) of Section 7.4(a) (with respect to the Borrower or the Canadian Borrower only), Section 7.7(a), Section 7.10(b) or Section 8 of this Agreement; provided, that any failure by the Borrower to observe any term, covenant or agreement under Section 8.1 shall not constitute an Event of Default with respect to the Term Loans until the earlier of (i) the date that the Revolving Facility Lenders declare all outstanding obligations under the Revolving Facility Loans and Revolving Facility Commitments to be immediately due and payable in accordance with this Agreement as a result of the Borrower’s failure to observe such term, covenant or agreement in Section 8.1 and (ii) the date on which the Administrative Agent or the Revolving Facility Lenders exercise any remedies with respect to the Revolving Facility Loans in accordance with Section 9; provided, further, that any failure by the Borrower to observe any term, covenant or agreement under Section 8.1 may be waived from time to time pursuant to clause (xiii) of Section 11.1; or
(d) any Loan Party shall fail to observe or perform any other agreement contained in this Agreement or any other Loan Document (other than as provided in clauses (a) through (c) of this Section 9), and such failure shall continue unremedied for a period of thirty (30) days after written notice thereof is given to the Borrower by the Administrative Agent or any Lender; or
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(e) (1) the Borrower, the Canadian Borrower or any Material Subsidiary shall (i) default in making any payment of any principal of any Indebtedness (including Guarantee Obligation, but excluding the Loans and any Hedge Agreement) on the scheduled or original due date with respect thereto; or (ii) default in making any payment of any interest on any such Indebtedness (excluding any Hedge Agreement) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto (excluding any Hedge Agreement), or any other event shall occur or condition exist beyond the period of grace provided in such instrument or agreement, if any, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or to become subject to a mandatory offer to purchase by the obligor thereunder or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; or (2) there occurs under any Hedge Agreement an Early Termination Date (as defined, or as such comparable term may be used and defined, in such Hedge Agreement) resulting from (A) any default under such Hedge Agreement as to which the Borrower, the Canadian Borrower or any Material Subsidiary is the “Defaulting Party” (as defined, or as such comparable term may be used and defined, in such Hedge Agreement) or (B) any “Termination Event” (as defined, or as such comparable term may be used and defined, in such Hedge Agreement) under such Hedge Agreement as to which the Borrower, the Canadian Borrower or any Material Subsidiary is an Affected Party (as defined, or as such comparable term may be used and defined, in such Hedge Agreement); provided, that a default, event or condition described in the foregoing clauses (1) or (2) of this clause (e) shall not at any time constitute an Event of Default unless, at such time, the outstanding principal amount of Indebtedness with respect to which one or more defaults, events or conditions of the type described in clause (1) of this clause (e) shall have occurred and be continuing, together with the Hedge Termination Value owned by the Borrower, the Canadian Borrower or any Material Subsidiary under Hedge Agreements with respect to which the events or conditions described in the foregoing clause (2) shall have occurred, shall exceed in the aggregate $50,000,000; provided, further, that this clause (e) shall not apply (A) to secured Indebtedness that becomes due as a result of the Disposition (including as a result of a casualty or condemnation event) of the property or assets securing such Indebtedness unless such secured Indebtedness is not paid on such due date or (B) with respect to Indebtedness incurred under any Hedge Agreement, termination events or equivalent events pursuant to the terms of the relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Subsidiary; or
(f) (i) the Borrower, the Canadian Borrower or any Material Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors (including any Canadian Debtor Relief Law), seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, interim receiver, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower, the Canadian Borrower or any Material Subsidiary shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Borrower, the Canadian Borrower or any Material Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against the Borrower, the Canadian Borrower or any Material Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) the Borrower, the Canadian Borrower or any Material Subsidiary shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower, the Canadian Borrower or any Material Subsidiary shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
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(g)
(i) any Person shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975
of the Code) involving any Plan, (ii) any failure to satisfy the minimum funding standard (as defined in Sections 412 and 430 of the Code
and Sections 302 and 303 of ERISA), whether or not waived, shall exist with respect to any Single Employer Plan or any Lien in favor of
the PBGC or a Single Employer Plan shall arise on the assets of any Group Member or any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate in a distress termination under Section 4041(c) of ERISA or in an involuntary termination by the
PBGC under Section 4042 of ERISA, (v) any Group Member or any Commonly Controlled Entity shall incur any liability in connection
with a withdrawal from, or the Insolvency of, a Multiemployer Plan or,
(vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i), (iii), (iv), (v) and (vi)
above, such event or condition, together with all other such events or conditions, if any, would, in the aggregate, reasonably be expected
to have a Material Adverse Effect, or (vii) a Canadian Pension Event occurs
which has resulted or would reasonably be expected to result in liability of a Loan Party or a Restricted Subsidiary which would reasonably
be expected to result in a Material Adverse Effect; or
(h) one or more judgments or decrees for the payment of money shall be entered against the Borrower, the Canadian Borrower or any Material Subsidiary involving in the aggregate a liability of $50,000,000 or more, and all such judgments or decrees shall not have been vacated, paid, discharged, stayed or bonded pending appeal for a period of sixty (60) consecutive days from the entry thereof; provided that any such amount shall be calculated after deducting from the sum so payable any amount of such judgment or decree that is covered by a valid and binding policy of insurance in favor of the Borrower, the Canadian Borrower or such Material Subsidiary; or
(i) any of the Security Documents shall cease, for any reason other than as set forth in Section 11.14, to be in full force and effect, or any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable or (except as expressly set forth therein or as a result of the actions, or lack thereof, by the Administrative Agent) perfected as to any property of the Loan Parties having an aggregate value exceeding $50,000,000; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan Party shall so assert, in each case, other than in connection with a release of any Subsidiary Guarantor in accordance with the terms of this Agreement; or
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(k) a Change of Control shall occur,
then,
and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of clause (f) above with respect
to the Borrower, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) shall immediately become
due and payable, (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) the Administrative
Agent may, or upon the request of the Required Lenders shall, by notice to the Borrower declare the Revolving Facility
Commitments to be terminated forthwith, whereupon the Revolving Facility
Commitments shall immediately terminate; and (ii) the Administrative Agent may, or upon the request of the Required Lenders
shall, by notice to the Borrower, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement
and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately
become due and payable; and (C) if such event is the failure by the Applicable
Borrower to observe any term, covenant or agreement under Section 8.1 and exists solely with respect to the Revolving Facility
Loans and/or the Total Revolving Facility
Commitments, the Administrative Agent may, and at the request of the Majority Facility Lenders under the Revolving FacilityFacilities,
shall, take any of the following actions solely as they relate to the
Revolving Facility Loans and/or the Total
Revolving Facility Commitments: (i) by notice to
the Borrower declare thesuch
Total Revolving Facility Commitments to be terminated
forthwith, whereupon the Total Revolving Facility
Commitments shall immediately terminate; and (ii) by notice to the Borrower, declare the Revolving Facility
Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents
(including all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. The Applicable Borrower
shall, at the time of acceleration pursuant to this clause, Cash Collateralize the aggregate then undrawn and unexpired amount of all
Letters of Credit then outstanding. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been
terminated, if any, shall be applied to repay any of the other Secured Obligations pursuant to the requirements of the Guarantee and Collateral
Agreement. After all such Letters of Credit shall have expired or been terminated, all Reimbursement Obligations shall have been satisfied
and all other Secured Obligations shall have been paid in full, the balance, if any, in such cash collateral account shall be returned
to the Applicable Borrower (or such other Person as may be
lawfully entitled thereto).
Except as expressly provided above in this Section 9, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower and the Canadian Borrower.
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SECTION
10. SECTION10. THE ADMINISTRATIVE AGENT AND OTHER REPRESENTATIVES
10.1. Appointment. Each Lender (and, if applicable, each other Secured Party) hereby irrevocably designates and appoints JPMorgan Chase Bank, N.A. (and JPMorgan Chase Bank, N.A. hereby accepts such appointment) as the agent of such Lender (and, if applicable, each other Secured Party) under this Agreement and the other Loan Documents, and each such Lender (and, if applicable, each other Secured Party) irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, none of the Other Representatives or the Administrative Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender or other Secured Party, 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 the Administrative Agent or any Other Representative.
10.2. Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care.
10.3. Exculpatory Provisions. Neither the Administrative Agent, any Other Representative nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders or any other Secured Party for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or any Specified Hedge Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent or the Other Representatives under or in connection with, this Agreement or any other Loan Document or any Specified Hedge Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any Specified Hedge Agreement or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Administrative Agent and the Other Representatives shall not be under any obligation to any Lender or any other Secured Party 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 any Specified Hedge Agreement, or to inspect the properties, books or records of any Loan Party. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the immediately preceding sentence, the Administrative Agent shall not be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to, or arising out of, any assignment or participation of Loans or Commitments, or disclosure of confidential information, to any Disqualified Institution.
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10.4. Reliance by the Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order 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 the Borrower), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully exculpated from and protected against any action or claim by any Lender or affiliate thereof, in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans and all other Secured Parties.
10.5. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender, or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement); provided, that unless and until the Administrative Agent shall have received such directions, the Administrative 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 in the best interests of the Lenders and the Secured Parties.
10.6. Non-Reliance on Administrative Agent and Other Lenders. Each Lender (and, if applicable, each other Secured Party) expressly acknowledges that neither the Administrative Agent nor the Other Representatives or any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent or any Other Representative hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by the Administrative Agent or any Other Representative to any Lender or any other Secured Party. Each Lender (and, if applicable, each other Secured Party) represents to the Administrative Agent and the Other Representatives that it has, independently and without reliance upon the Administrative Agent, the Other Representatives or any other Lender or any other Secured Party, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender (and, if applicable, each other Secured Party) also represents that it will, independently and without reliance upon the Administrative Agent, the Other Representative or any other Lender or any other Secured Party, 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 or any Specified Hedge Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender or any other Secured Party with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
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10.7. Indemnification. The Lenders agree to indemnify the Administrative Agent and each Other Representative in its capacity as such (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent or Other Representative in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents, any Specified Hedge Agreements or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent or Other Representative under or in connection with any of the foregoing; provided, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the Administrative Agent’s or such Other Representative’s gross negligence or willful misconduct. The agreements in this Section 10.7 shall survive the payment of the Loans and all other amounts payable hereunder.
10.8. Agent in Its Individual Capacity. The Administrative Agent, each Other Representative and their respective Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Loan Party as though the Administrative Agent were not the Administrative Agent or an Other Representative. With respect to its Loans made or renewed by it and with respect to any Letter of Credit issued or participated in by it, the Administrative Agent and each Other Representative in its individual capacity as a Lender shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not the Administrative Agent or Other Representative, and the terms “Lender”, “Lenders”, “Secured Party” and “Secured Parties” shall include the Administrative Agent and each Other Representative in its individual capacity as such.
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10.9. Successor Administrative Agent.
(a) Subject to the appointment and acceptance of a successor Administrative Agent as provided below (except as otherwise provided in Section 10.9(b)), the Administrative Agent may resign as Administrative Agent by giving ten (10) days’ prior written notice thereof to the Lenders, the Issuing Xxxxxxx and the Borrower. If the Administrative Agent shall have given such notice of its resignation as Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default under Section 9(a) or Section 9(f) with respect to the Borrower shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is thirty (30) days following a retiring Administrative Agent’s notice of resignation, then the resigning Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank.
(b) Notwithstanding anything to the contrary set forth in Section 10.09(a), in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Xxxxxxx and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents; provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties, and continue to be entitled to the rights set forth in such Security Document and Loan Document, and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this Section 10.9 (it being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to each Lender and each Issuing Lender. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Section 10 and Section 11.5, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in the proviso under clause (i) above.
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10.10. Administrative Agent Generally. Except as expressly set forth herein, the Administrative Agent shall not have any duties or responsibilities hereunder in its capacity as such.
10.11. Other Representatives. Each of the Lead Arranger, the Joint Bookrunners and the Documentation Agents, in its several capacity as such, shall have no duties or responsibilities, and shall incur no liability, under this Agreement or any other Loan Document.
10.12. Withholding Tax.. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting the provisions of Section 4.10, if any Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including because the appropriate form was not delivered or was not properly executed, because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or because such Lender failed to comply with the provisions of Section 11.6(c) relating to the maintenance of a Participant Register), or the Administrative Agent has paid over to a Governmental Authority applicable withholding Tax relating to a payment to a Lender but no deduction has been made from such payment, each Lender shall indemnify the Administrative Agent, within 10 days demand therefor, fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred, whether or not such amounts were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document against any amount due to the Administrative Agent under this Section 10.12. For purposes of this Section and the definitions referenced herein, the term “Lender” includes any Issuing Lender and any Swingline Lender. The agreements in this Section 10.12 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of the Loans, Obligations and all other amounts payable under any Loan Document.
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10.13. Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, any Issuing Lender and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, such Issuing Lender and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, such Issuing Lender and the Administrative Agent under Sections 3.5, 3.13, 4.5 and 11.5) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Issuing Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the applicable Issuing Lender, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 3.5, 3.13, 4.5 and 11.5.
10.14. Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Other Representatives and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii) the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
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(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Xxxxxx’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Other Representatives and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent or any Other Representative or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).
10.15. Intercreditor Agreements. The Administrative Agent is authorized to enter into the Intercreditor Agreement and the Pari Debt Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, and extensions, restructuring, renewals, replacements of, such agreements) in connection with the incurrence of any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness or any other Indebtedness permitted by the terms of this Agreement to be secured by the Collateral on a pari passu or junior priority secured basis, and the parties hereto acknowledge that each of the Intercreditor Agreement and the Pari Debt Intercreditor Agreement is (if entered into) binding upon them. Each Lender (a) understands, acknowledges and agrees that Liens may be created on the Collateral pursuant to the documentation relating to any Indebtedness incurred as permitted by this Agreement which is (in accordance with the terms hereof) to be secured thereby, on a pari passu, or junior secured basis to the Liens securing the Secured Obligations, which Liens securing any such other Indebtedness shall be subject to the terms and conditions of the Intercreditor Agreement and/or the Pari Debt Intercreditor Agreement executed and delivered as required hereby, (b) hereby agrees that it will be bound by and will take no actions contrary to the provisions of the Intercreditor Agreement and/or the Pari Debt Intercreditor Agreement (if entered into) and (c) hereby authorizes and instructs the Administrative Agent to enter into the Intercreditor Agreement and the Pari Debt Intercreditor Agreement (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements) in connection with the incurrence of any secured Indebtedness as contemplated above.
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10.16. Erroneous Payments. .
(a)
Each Lender and each Issuing Lender hereby agrees that (x) if the Administrative Agent notifies such Lender or Issuing Lender that
the Administrative Agent has determined in its sole discretion that any funds received by such Lender or Issuing Lender from the Administrative
Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually
and collectively, a “Payment”) were erroneously transmitted to such Lender or Issuing Lender (whether or not known
to such Lender or Issuing Lender), and demands the return of such Payment (or a portion thereof), such Lender or Issuing Lender shall
promptly, but in no event later than one (1) Business Day thereafter, return to the Administrative Agent the amount of any such Payment
(or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from
and including the date such Payment (or portion thereof) was received by such Lender or Issuing Lender to the date such amount is repaid
to the Administrative Agent at the greater of the NYFRBapplicable
Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation
from time to time in effect, and (y) to the extent permitted by applicable law, such Lender or Issuing Lender shall not assert, and hereby
waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand,
claim or counterclaim by the Administrative Agent for the return of any Payments received, including, with-out limitation, any defense
based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section
10.16 shall be conclusive, absent manifest error.
(b)
Each Lender and each Issuing Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of
its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the
Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not
preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such
Payment. Each Lender and each Issuing Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof)
may have been sent in error, such Lender or Issuing Lender, as applicable, shall promptly notify the Administrative Agent of such occurrence
and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one (1) Business Day thereafter, return
to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds,
together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such
Lender or Issuing Lender (as applicable) to the date such amount is repaid to the Administrative Agent at the greater of the NYFRBapplicable
Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation
from time to time in effect.
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(c) Each Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Lender, as applicable, with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Loan Party, except, in each case, to the extent the Administrative Agent or any of its Affiliates receives funds from (or at the direction of) any Loan Party in respect of any such Payment or such Payment is made with or on account of the proceeds of a payment made by (or at the direction of) any Loan Party to the Administrative Agent or any of its Affiliates in accordance with the terms of this Agreement.
(d) Each party’s obligations under this Section 10.16 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of a Lender or Issuing Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
10.17. Quebec Security.
For the purposes of the grant of security under the laws of the Province of Quebec which may now or in the future be required to be provided by any Loan Party, the Administrative Agent is hereby irrevocably authorized and appointed by each of the Lenders hereto to act as hypothecary representative (within the meaning of Article 2692 of the Civil Code of Quebec) for all present and future Secured Parties (in such capacity, the “Hypothecary Representative”) in order to hold any hypothec granted under the laws of the Province of Quebec and to exercise such rights and duties as are conferred upon the Hypothecary Representative under the relevant deed of hypothec and applicable Laws (with the power to delegate any such rights or duties). The execution prior to the date hereof by the Administrative Agent in its capacity as the Hypothecary Representative of any deed of hypothec or other security documents made pursuant to the laws of the Province of Quebec, is hereby ratified and confirmed. Any Person who becomes a Secured Party or successor Administrative Agent shall be deemed to have consented to and ratified the foregoing appointment of the Administrative Agent as the Hypothecary Representative on behalf of all Secured Parties, including such Person and any Affiliate of such Person designated above as a Lender. For greater certainty, the Administrative Agent, acting as the Hypothecary Representative, shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favor of the Administrative Agent in this Agreement, which shall apply mutatis mutandis. In the event of the resignation of the Administrative Agent (which shall include its resignation as the Hypothecary Representative) and appointment of a successor Administrative Agent, such successor Administrative Agent shall also act as the Hypothecary Representative, as contemplated above.
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SECTION
11. SECTION11. MISCELLANEOUS
11.1. Amendments and Waivers. Except as provided in Sections 4.17, 4.18 and 4.19 and subject to Section 4.7(b) and Section 11.21, none of this Agreement, any other Loan Document, or any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 11.1. The Required Lenders and each Loan Party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan Party to the relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall (i) forgive or reduce the principal amount or extend the final scheduled date of maturity of any Loan, reduce the stated rate of any interest or fee payable hereunder or extend the scheduled date of any payment thereof (except (x) in connection with the waiver of applicability of any post-default increase in interest rates, which waiver shall be effective with the consent of the Majority Facility Lenders of each adversely affected Facility, (y) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i) even if the effect of such amendment would be to reduce the rate of interest on any Loan or any L/C Obligations or to reduce any fee payable hereunder and (z) any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required under Section 4.2 which shall only require the approval of the Majority Facility Lenders of each Facility adversely affected thereby), or increase the amount or extend the expiration date of any Lender’s Commitment, in each case, without the written consent of each Lender directly affected thereby (but not, for the avoidance of doubt, the consent of the Required Lenders); (ii) eliminate or reduce the voting rights of any Lender under this Section 11.1 without the written consent of such Lender; (iii) reduce any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents or, except as set forth in Section 11.14, release all or substantially all of the Collateral or release all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and Collateral Agreement, in each case without the written consent of all Lenders; provided, further that, any amendment to Section 11.14 to permit the release of all or substantially all of the Collateral or release all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee and Collateral Agreement shall also require the written consent of all Lenders; (iv) extend the scheduled date or reduce the amount of any amortization payment in respect of any Term Loan, in each case, without the written consent of each Lender directly affected thereby; (v) amend, modify or waive any condition precedent to any extension of credit under the applicable Revolving Facility set forth in Section 6.1 without the written consent of the Majority Facility Lenders under the applicable Revolving Facility; (vi) amend, modify or waive any provision of Section 4.8 without the written consent of the Majority Facility Lenders under each Facility affected thereby, except that the additional written consent of each Lender directly and adversely affected thereby shall be required in the case of Section 4.8(a), 4.8(c) and the first sentence of Section 4.8(b); (vii) reduce the percentage specified in the definition of Majority Facility Lenders with respect to any Facility without the written consent of all Lenders under such Facility; (viii) amend, modify or waive any provision of Section 10 without the written consent of the Administrative Agent or Other Representative adversely affected thereby; (ix) amend, modify or waive any provision of Section 3.3 or 3.4 without the written consent of the applicable Swingline Lender; (x) amend, modify or waive any provision of Sections 3.7 to 3.13 without the written consent of each Issuing Lender; (xi) amend, modify or waive any terms of Section 4.16 without the consent of each Lender (other than any Defaulting Lender); (xii) amend, modify or waive any of the terms and provisions (and related definitions) of Section 8.1 (even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Obligations or to reduce any fee payable hereunder) or any of the terms and provisions of the proviso set forth in clause (c) of Section 9, without the written consent of the Majority Facility Lenders under the applicable Revolving Facility; provided, further, that, notwithstanding anything else in this Agreement to the contrary, any such amendment, waiver or other modification pursuant to this clause (xii) shall be effective for all purposes of this Agreement with the written consent of only the Majority Facility Lenders under the applicable Revolving Facility (or the Administrative Agent with the prior written consent thereof) and the Borrower; (xiii) modify or extend the maturity date of any Letter of Credit to a date that is later than the maturity date applicable to the Revolving Facility Commitments, without the consent of each Revolving Facility Lender, (xiv) amend, modify or waive any provisions of Section 6.5 of the Guarantee and Collateral Agreement without the written consent of each Lender directly and adversely affected thereby; (xv) amend, modify or waive any provisions of Section 11.7(a) hereof without the written consent of each Lender directly and adversely affected thereby; (xvi) amend, modify or waive (A) any Loan Document so as to alter the ratable treatment of the Obligations arising under any Specified Hedge Agreement or Specified Cash Management Arrangement and the Obligations arising under the Loan Documents and (B) the definition of “Qualified Counterparty”, “Specified Hedge Agreement”, “Specified Cash Management Agreement”, “Obligations” or “Secured Obligations”, in each case, in a manner adverse to any Qualified Counterparty with Obligations then outstanding without the written consent of any such Qualified Counterparty; or (xvii) (x) subordinate in payment the Obligations to the obligations of any other Indebtedness for borrowed money or (y) subordinate the Liens granted in favor of the Administrative Agent on the Collateral to Liens securing any other Indebtedness for borrowed money, in each case, without the written consent of each Lender (except, in the case of subclause (y), for any Permitted Liens expressly permitted to be secured on a senior basis to the Liens securing the Obligations pursuant to the terms of this Agreement as in effect on the Closing Date); provided that a Lender’s consent shall not be required pursuant to this clause (xvii) (A) in respect of any “debtor-in-possession” financing and (B) to the extent each Lender directly and adversely affected thereby is offered a reasonable, bona fide opportunity to participate on a pro rata basis (based on the principal amount of its Loans and unfunded Commitments under the Facilities as of the date of determination) in any such Indebtedness on the same terms (including being allocated its ratable portion of any fees payable in connection therewith) as the other lenders participating in such Indebtedness; provided that any such waiver, amendment, supplement or modification described in the foregoing clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (xii), (xiii), (xiv) and (xv) shall not at any time require the consent of the Required Lenders. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
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Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Applicable Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and Revolving Facility Extensions of Credit and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Majority Facility Lenders.
Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure any technical ambiguity, omission, mistake, defect or inconsistency; provided, that the Administrative Agent shall post such amendment to the Lenders (which may be provided through electronic, telecommunications or other information transmission systems) reasonably promptly after the effectiveness thereof.
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11.2. Notices. (a) All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy or electronic transmission), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three (3) Business Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed (i) in the case of the Borrower, the Administrative Agent or the Swingline Lender, as set forth below, (ii) in the case of the Issuing Lenders, as set forth on Schedule 11.2 or such other address as may be hereafter notified by the respective parties hereto and (iii) in the case of the Lenders, as set forth in an administrative questionnaire delivered to the Administrative Agent, or, in each case of the foregoing clauses (i), (ii) and (iii), to such other address as may be hereafter notified by the respective parties hereto:
The Borrower or the Canadian Borrower:
| OPENLANE, Inc. |
00000 X. Xxxxxxxx Xxxxxx
Carmel, Indiana 46032
Attention: Xxxx Xxxxxx and Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000 and (000) 000-0000
Email:
xxxx.xxxxxx@xxxxxxxxx.xxxxxxx.xxxxxx@xxxxxxxx.xxx
and xxxx.xxxxxxx@xxxxxxxx.xxx
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxxxxx Xxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Email: Xxxxxx.Xxxxxxx@xxxxxxx.xxx
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The Administrative Agent or the Swingline Lender:
JPMorgan Chase Bank, N.A.
000 X Xxxxxxxx Xx, Xxxxx 00
Chicago, IL, 60603-5506
Attention: Loan and Agency Servicing
Email: xxx.xxxxxx.xxx@xxxxxxxx.xxx
Agency Withholding Tax Inquiries:
Email: xxxxxx.xxx.xxxxxxxxx@xxxxxxxx.xxx
Agency Compliance/Financials/Intralinks:
Email: xxxxxxxx.xxxxxxxxxx@xxxxxxxx.xxx
with a copy to:
Xxxxxx Xxxxxxx
Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Email: xxxxxx.xxxxxxx@xx.xxx
| The Issuing Lender: | JPMorgan Chase Bank, N.A. |
00 Xxxxx Xxxxxxxx, Xxxxx X0
Xxxxx XX0-0000
Xxxxxxx, XX, 00000-2300
Attention: LC Agency Team
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxx.xx.xxxxxx.xxxxxxxx.xxxx@xxxxxxxx.xxx
With a copy to:
JPMorgan Chase Bank, N.A.
00 Xxxxx Xxxxxxxx, Xxxxx X0
Suite IL1-0480
Chicago, IL, 60603-2300
Attention: Loan & Agency Services Group
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(b) No notice, request or demand to or upon the Administrative Agent, any Issuing Lender, the Lenders, or the Applicable Borrower shall be effective until received. The Applicable Borrower shall be conclusively deemed to have received any notice, request or demand if such notice, request or demand is sent by courier service and delivery thereof is confirmed by the courier, if it is sent by fax or electronic transmission and receipt thereof is confirmed orally, if it is sent by certified mail or if it is served by any manner of service of process permitted by law. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent. Approval of such procedures may be limited to particular notices or communications;
(c) (i) Notices and other communications to the Lenders and the Issuing Lenders hereunder may be delivered or furnished by electronic communication (including email and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided, that the foregoing shall not apply to notices to any Lender or any Issuing Lender pursuant to Sections 2 and 3 if such Lender or such Issuing Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Applicable Borrower may, in their discretion, agree to accept notices and other communications to each of them hereunder by electronic communications pursuant to procedures approved by it; provided, that approval of such procedures may be limited to particular notices or communications.
(ii) Unless the Administrative Agent otherwise prescribes, (a) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided, that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (b) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (a) of notification that such notice or communication is available and identifying the website address therefore.
11.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans and other extensions of credit hereunder.
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11.5. Payment of Expenses; Indemnity(a). (a) The Borrower agrees (i) to pay or reimburse each Lender, each Issuing Lender, each Other Representative and the Administrative Agent for all its reasonable and documented out-of-pocket costs and expenses incurred in connection with the syndication of the Facilities and the development, preparation and execution of, and any amendment, supplement or modification to (including expenses incurred in connection with due diligence and travel, courier, reproduction, printing and delivery expenses), this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable fees and disbursements of one primary counsel to the Lenders, the Issuing Lenders, the Other Representatives and the Administrative Agent and, to the extent reasonably determined by the Administrative Agent to be necessary, one special counsel or local counsel in each applicable jurisdiction and, in the case of an actual or reasonably perceived conflict of interest, one additional counsel in each applicable jurisdiction per affected party and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower two (2) Business Days prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the Administrative Agent shall deem appropriate and (ii) to pay or reimburse each Lender, each Issuing Lender, each Other Representative and the Administrative Agent for all its documented and out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit and including the fees and disbursements of one primary counsel to the Lenders, the Issuing Lenders, the Other Representatives and the Administrative Agent and, to the extent reasonably determined by the Administrative Agent to be necessary, one special counsel or local counsel in each applicable jurisdiction and, in the case of an actual or reasonably perceived conflict of interest, one additional counsel in each applicable jurisdiction per affected party.
(b) The Borrower agrees (i) to pay, indemnify, and hold each Lender, each Issuing Lender, each Other Representative and the Administrative Agent harmless from, any and all recording and filing fees that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, and (ii) to pay, indemnify, and hold each Lender, each Issuing Lender, each Other Representative and the Administrative Agent and each of their and their affiliates’ respective officers, directors, employees, attorneys, affiliates, agents, members, partners and advisors (each, including each Lender and the Administrative Agent, an “Indemnitee”) harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the syndication of the Facilities and the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans or any related transaction or the violation of, noncompliance with or liability under, any Environmental Law or related to any Materials of Environmental Concern applicable to the operations of any Group Member or any of the Properties or the unauthorized use by Persons of information or other materials sent through electronic, telecommunications or other information transmission systems that are intercepted by such Persons or any claim, litigation, investigation or proceeding relating to any of the foregoing, or preparation of a defense in connection therewith, regardless of whether such claim, litigation, investigation or proceeding is brought by the Borrower, the Borrower’s equity holders or creditors, an Indemnitee or any other person or entity, whether any Indemnitee is a party thereto, including in each case the reasonable and documented fees and disbursements of one primary counsel to the Lenders, the Issuing Lenders, the Other Representatives, the Administrative Agent and Indemnitees and, to the extent reasonably determined by the Administrative Agent to be necessary, one special counsel or local counsel in each applicable jurisdiction and, in the case of an actual or reasonably perceived conflict of interest, one additional counsel in each applicable jurisdiction per affected party (all the foregoing in this clause (b)(ii), collectively, the “Indemnified Liabilities”); provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted primarily from (x) the willful misconduct, bad faith or gross negligence of such Indemnitee or its Related Persons, (y) a material breach by such Indemnitee of its express and material contractual obligations under this Agreement or the Loan Documents pursuant to a claim made by the Borrower or (z) disputes between and among the Indemnitees (other than disputes involving the Administrative Agent or the Other Representatives in their respective capacities as such) other than any dispute related to any act or omission by the Borrower or any of its Subsidiaries.
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(c) Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, to the extent that any such rights or claims relate to or are connected with the relationship between the Indemnitee and the Borrower and its Subsidiaries arising from this Agreement or any other Loan Document or otherwise relate to any matter based on or related to the Facilities or the Loan Documents or the actions of an Indemnitee in connection with the Facilities or the Loan Documents.
(d) All amounts due under this Section 11.5 shall be payable not later than ten (10) days after written demand therefor. Statements payable by the Borrower pursuant to this Section 11.5 shall be submitted pursuant to the notice information for the Borrower set forth in Section 11.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent.
(e) To the fullest extent permitted by applicable law, none of the Borrower, the Loan Parties and the Indemnitees shall assert, and each of the Borrower, the Loan Parties and the Indemnitees hereby waives, any claim against any Loan Party or any Indemnitee, as applicable, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit, or the use of the proceeds thereof; provided, that the foregoing will not limit the Borrower’s indemnity or expense reimbursement obligations set forth above. No Indemnitee referred to in clause (b)(ii) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from the gross negligence, bad faith or willful misconduct of such Indemnitee.
(f) The agreements in this Section 11.5 shall survive repayment of the Loans and all other amounts payable hereunder. This Section 11.5 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, or other costs and expenses arising from any non-Tax claim.
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11.6. Successors and Assigns; Participations and Assignments. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Lender that issues any Letter of Credit), except that (i) the Borrower or the Canadian Borrower may not assign or otherwise transfer any of its respective rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower or the Canadian Borrower without such consent shall be null and void), and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 11.6.
(b) (i)(i) Subject to the conditions set forth in Section 11.6(c) below, any Lender may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower; provided, that no consent of the Borrower shall be required (1) for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, (2) for an assignment to any Person if an Event of Default under Section 9(a) or Section 9(f) has occurred and is continuing, (3) for an assignment by a Conduit Lender to its designated Lender, a conduit administered or managed by such Conduit Lender’s designated Lender or to such Conduit Xxxxxx’s liquidity providers or (4) for any assignment between Xxxxxxx Xxxxx Bank USA and Xxxxxxx Xxxxx Lending Partners LLC; provided, further, that the Borrower shall be deemed to have consented to any such assignment of Term Loans unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received written notice of such assignment of Term Loans thereof;
(B) the Administrative Agent; provided, that no consent of the Administrative Agent shall be required (1) for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, except in the case of an assignment of a Revolving Facility Commitment to an Assignee that does not already have a Revolving Facility Commitment or (2) for an assignment by a Conduit Lender to its designated Lender, a conduit administered or managed by such Conduit Lender’s designated Lender or to such Conduit Lender’s liquidity providers; and
(C) each Issuing Lender and the Swingline Lender, in case of an assignment of a Revolving Facility Commitment.
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(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Xxxxxx’s Commitments or Loans under any Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 (or, in the case of any of the Term Loans, $1,000,000) unless each of the Borrower and the Administrative Agent otherwise consent; provided, that (1) no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that such processing and recordation fee may be waived by the Administrative Agent in its sole discretion;
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire;
(D) the Assignee, if it shall not be a Lender, shall deliver to the Borrower and the Administrative Agent the forms and documentation required pursuant to Sections 4.10 (e), (f) and (k);
(E) in the case of an assignment by a Conduit Lender to an Assignee that is not its designated Lender, another Conduit Lender administered or managed by such Conduit Lender’s designated Lender or such Conduit Lender’s liquidity providers (any such Assignee, a “Third Party Assignee”), such Conduit Lender’s designated Lender shall concurrently assign to such Third Party Assignee or, if such Third Party Assignee is a conduit not administered by such designated Lender, to an Assignee designated by such Third Party Assignee an amount of its Commitment at least equal to the amount of the Loans assigned to such Third Party Assignee by such Conduit Lender; provided, that if, in connection with such assignment, such Conduit Lender notifies the Borrower or the Administrative Agent that such Conduit Lender shall not make any additional Loans under this Agreement, such Conduit Lender’s designated Lender shall assign its entire Commitment to such Third Party Assignee or, if such Third Party Assignee is a conduit not administered by such designated Lender, to an Assignee designated by such Third Party Assignee;
(F) no such assignment shall be made to an assignee that is (x) a Defaulting Lender at the time of such assignment or (y) a Disqualified Institution (unless consented to by the Borrower) and, in each case, any such purported assignment thereto shall be deemed null and void;
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(G) notwithstanding anything to the contrary herein, no such assignment shall be made to any Affiliated Lender unless made in compliance with the additional terms and conditions set forth in Section 11.6(g); and
(H) notwithstanding anything to the contrary herein, no such assignment shall be made to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person).
(iii) Subject to acceptance and recording thereof pursuant to Section 11.6(b)(iv) below, from and after the effective date specified in each Assignment and Assumption the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 4.9, 4.10, 4.11 and 11.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with, and subject to the limitations of Section 11.6(c).
(iv)
The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower,
and the Canadian Borrower shall maintain at one of its offices
a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amount and stated interest of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error,
and the Borrower, the Canadian Borrower, the Administrative
Agent, each Issuing Lender and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Canadian Borrower, each Issuing
Lender and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Xxxxxx and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), and any written consent to such assignment required by Section 11.6(b), the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this clause (v).
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(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent or any other Person, sell participations to one or more banks or other entities (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, a Defaulting Lender, a Person that is a Disqualified Institution (unless consented to by the Borrower) or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided, that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Canadian Borrower, the Administrative Agent, each Issuing Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided, that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 11.1 and (2) directly affects such Participant. Subject to Section 11.6(c)(ii), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.9, 4.10 or 4.11 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.6(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.7(b) as though it were a Lender; provided, that such Participant shall be subject to Section 11.7(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section 4.9 or 4.10 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant (except to the extent such entitlement to receive a greater payment results from change in a Requirement of Law that occurs after the Participant acquired the applicable participation). Any Participant that is a Non-U.S. Lender shall not be entitled to the benefits of Section 4.10 unless such Participant complies with Section 4.10(e) (it being understood that the documentation required to be delivered under Section 4.10(e) shall be delivered to such Participant).
(iii) Each Lender that sells a participation or designates a Conduit Lender shall, acting for this purpose as a non-fiduciary agent of the Borrower and the Canadian Borrower, maintain a register on which it enters the name and address of each Participant and Conduit Lender and the principal amounts and stated interest of each Participant’s and Conduit Xxxxxx’s interest in the Loans (or other rights or obligations) held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such Loan (or other right or obligation) hereunder as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary. No Lender shall have any obligation to disclose any portion of its Participant Register to any Person except to the extent such disclosure is necessary to establish that the Loans (or other rights or obligations) hereunder are in registered form under Section 5f.103-1(c) or Proposed Section 1.163-5(b) (or any successor sections) of the United States Treasury Regulations. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights and/or obligations under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or central bank having jurisdiction over it, and this Section 11.6 shall not apply to any such pledge or assignment of a security interest; provided, that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Xxxxxx as a party hereto.
(e) The Applicable Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in Section 11.6(d).
(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating Lender without the consent of the Borrower or the Administrative Agent and without regard to the limitations set forth in Section 11.6(b). Each of the Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one (1) year and one (1) day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Xxxxxx hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
(g) Subject to the other provisions of this Section 11.6 and Section 11.21, any Affiliated Lender may make Loans or Commitments or purchase an assignment of outstanding Loans or Commitments (including Incremental Loans and Incremental Commitments) from one or more Lenders and any such purchases of Loans and/or Commitments may be made through (a) open market purchases on a non-pro rata basis and/or (b) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures determined by such Affiliated Lender in its sole discretion, in each case, on the following basis and subject to the following terms and conditions:
(i) any such purchase of Loans (other than any commitment to provide Incremental Loans or any Incremental Commitments) shall be consummated as an assignment otherwise in accordance with the provisions of this Section 11.6 and pursuant to an Assignment and Assumption (it being understood and agreed that any such purchase of Loans that does not comply with this Section 11.6 and Section 11.21 shall not be effective as an assignment hereunder);
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(ii) [reserved];
(iii) the aggregate principal amount of the Term Loans and Commitments (including Incremental Term Loans and Incremental Term Loan Commitments) held by all Affiliated Lenders shall not exceed 25% of the total principal amount outstanding under the Term Facilities and any Incremental Term Loans at the time of such purported assignment;
(iv) no Affiliated Lender may purchase Revolving Facility Commitments or Incremental Revolving Facility Commitments hereunder and no Affiliated Lender may purchase any Revolving Facility Loans or any Incremental Revolving Facility Loans from any Lender, except from a Defaulting Lender (in which case, such Affiliated Lender shall purchase such Defaulting Lender’s Loans and shall purchase all such Loans and other amounts owing to the replaced Lender on or prior to the date of replacement and assume all obligations of the replaced Lender under the Loan Documents in connection with the purchased Revolving Facility Loans in accordance with this Section 11.6 (except that the Borrower shall pay the registration and processing fee referred to therein and for the avoidance of doubt such purchase shall not include its Commitments));
(v)
in the case of a purchase of Loans by the Borrower or any of its Subsidiaries, no proceeds of theany
Revolving Facility and no proceeds of any Incremental Loans drawn under any Incremental Revolving Facility
Commitments shall be used for any purchases hereunder;
(vi) any Loans purchased by the Borrower or any of its Subsidiaries shall be automatically and permanently cancelled upon the effectiveness of such assignment and will thereafter no longer be outstanding for any purpose hereunder;
(vii) no Affiliated Lender shall be required to represent or warrant that it is not in possession of material Non-public Information with respect to the Borrower and/or any Subsidiary thereof and/or their respective securities in connection with any assignment permitted by this Section 11.6(g);
(viii) notwithstanding anything to the contrary in this Agreement, the purchase of Loans made by an Affiliated Lender under this Section 11.6 shall not constitute a voluntary or mandatory prepayment of the Loans; and
(ix) in the case of a purchase by any Affiliated Lender, the assigning Lender and such assignee shall execute and deliver to the Administrative Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and Assumption.
11.7. Adjustments; Set-off. (a) Except as expressly provided in Section 11.6 and otherwise to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the Lenders under a particular Facility, if any Lender (a “Benefited Lender”) shall, at any time after the Loans and other amounts payable hereunder shall immediately become due and payable pursuant to Section 9, receive any payment of all or part of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 9(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
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(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right upon the occurrence and during the continuance of an Event of Default, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by the Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided, that the failure to give such notice shall not affect the validity of such setoff and application.
11.8. Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of (a) this Agreement, (b) any other Loan Document and/or (c) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 11.2), certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such Ancillary Document, as applicable. The words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state laws based on the Uniform Electronic Transactions Act. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent.
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11.9. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
11.10. Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the Canadian Borrower, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof. This Agreement supersedes all prior commitments and undertakings of any or all of the Administrative Agent and Lenders relating to the financing contemplated hereby. There are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
11.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11.12. Submission To Jurisdiction; Waivers. Each of the Borrower, the Canadian Borrower, the Administrative Agent and the Lenders hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York, the courts of the United States for the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person at its address set forth in Section 11.2 or at such other address of which the Administrative Agent and the Borrower shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
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(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or consequential damages.
11.13.
Acknowledgments. TheEach
of the Borrower and the Canadian Borrower, as applicable, hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent, any Other Representative or Xxxxxx has any fiduciary relationship with or duty to the Applicable Borrower arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Administrative Agent and Lenders, on one hand, and the Applicable Borrower, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Applicable Borrower and the Lenders.
11.14. Releases of Guarantees and Liens. (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by each Lender and other Secured Parties (without requirement of notice to or consent of any Lender or other Secured Party except as expressly required by Section 11.1) to take any action requested by the Borrower or the Canadian Borrower having the effect of releasing any Collateral or guarantee obligations (i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document or that has been consented to in accordance with Section 11.1 or (ii) under the circumstances described in Section 11.14(b).
(b) At such time as the Loans, the Reimbursement Obligations and the other obligations under the Loan Documents (other than contingent surviving indemnity obligations in respect of which no claim or demand has been made and obligations under or in respect of Hedge Agreements or Specified Cash Management Arrangements) shall have been paid in full, the Commitments have been terminated and no Letters of Credit shall be outstanding (other than Letters of Credit which have been Cash Collateralized or as to which other arrangements satisfactory to the applicable Issuing Lender shall have been made), the Collateral shall automatically be released from the Liens created by the Security Documents, and the Loan Documents and all Obligations (other than those expressly stated to survive such termination) of each Loan Party under the Loan Documents shall automatically terminate, all without delivery of any instrument or performance of any act by any Person. Additionally, (i) upon the Disposition of any Collateral (A) by any Loan Party to a Person that is not (and is not required to become) a Loan Party in a transaction permitted by this Agreement or (B) in connection with any exercise of remedies by the Administrative Agent and the Lenders pursuant to Section 9, (ii) to the extent that any property constituting Collateral is owned by any Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its obligations under the Guarantee and Collateral Agreement in accordance with the Guarantee and Collateral Agreement or this Section 11.14(b), (iii) upon any property of a Loan Party becoming Excluded Collateral or (iv) upon the effectiveness of any written consent to the release of the security interest created under any Security Document in any Collateral pursuant to Section 11.1, such property or Collateral shall automatically be released from the Liens created by the Security Documents, all without delivery of any instrument or performance of any act by any Person. A Subsidiary Guarantor shall automatically be released from its obligations under the Loan Documents (and its Guarantee created under the Guarantee and Collateral Agreement shall automatically be released), all without delivery of any instrument or performance of any act by any Person: (A) upon the consummation of any transaction permitted hereunder resulting in such Subsidiary Guarantor ceasing to constitute a Restricted Subsidiary or (B) upon such Subsidiary Guarantor becoming an Excluded Subsidiary; provided that the Borrower has elected for such Excluded Subsidiary to be released from its Guarantee. The Administrative Agent shall deliver such documentation reasonably requested by the Borrower to evidence the termination of this Agreement and the other Loan Documents and/or the termination of the Liens on the Collateral, in favor of the Administrative Agent for the benefit of the Secured Parties, all in form reasonably satisfactory to the Administrative Agent and the Borrower. Any such documentation shall be made without recourse, representation or warranty. The Borrower shall pay all costs and expenses (including, but not limited to, reasonable and documented attorney’s fees), that the Administrative Agent incurs in preparing and delivering the foregoing documents (or reviewing forms of such documents prepared by the Borrower or its counsel).
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11.15. Confidentiality. The Administrative Agent, each Other Representative and Xxxxxx agrees to keep confidential all non-public information provided to it by any Loan Party pursuant to or in connection with this Agreement; provided, that nothing herein shall prevent the Administrative Agent, Other Representative or any Lender from disclosing any such information (a) to any Lender or any Affiliate of any Lender (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) (i) to any actual or prospective Transferee (other than any Disqualified Institution), (ii) any direct or indirect actual or prospective counterparty (or any professional advisor to such counterparty) to any Hedge Agreement or any other swap, derivative or securitization transaction relating to the Borrower and its Obligations or (iii) to any credit insurance provider relating to the Borrower and its Obligations, in each case, if such person is required to maintain confidentiality on terms at least as restrictive as those contained in this Section 11.15, (c) to its employees, directors, agents, members, partners, attorneys, accountants and other professional advisors or those of any of its affiliates if such person is required to maintain confidentiality, (d) upon the request or demand of any Governmental Authority, (e) in response to any order of any court or other Governmental Authority, or as may otherwise be required pursuant to any Requirement of Law, or if requested or required to do so in connection with any litigation or similar proceeding; provided, that the Administrative Agent, Other Representative or Lender, unless prohibited by any Requirement of Law, shall use reasonable efforts to notify the Borrower in advance of any disclosure pursuant to this clause (e), (f) that has been publicly disclosed, (g) to the National Association of Insurance Commissioners or any similar organization or any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (h) in connection with the exercise of any remedy hereunder or under any other Loan Document, (i) to any rating agency when required by it; provided, that, prior to any disclosure, such rating agency is required to maintain confidentiality or (j) with the consent of the Borrower. In addition, the Administrative Agent and each Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents.
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11.16. WAIVERS OF JURY TRIAL. THE BORROWER, THE CANADIAN BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.17. [Reserved].
11.18. USA PATRIOT Act; CAML.
(a)
. Each Lender hereby notifies each Loan Party that pursuant to the
requirements of the USA PATRIOT Act (Title III of Publ. L. 107-56 (signed into law October 26, 2001)), (the “Patriot Act”),
it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address
of each Loan Party and other information that will allow such Lender to identify each Loan Party in accordance with the Patriot Act.
(b) The Loan Parties acknowledge that, pursuant to CAML, the Lenders and Administrative Agent may be required to obtain, verify and record information regarding the Loan Parties and their Subsidiaries, respective directors, authorized signing officers, direct or indirect shareholders or other Persons in control of such Loan Party, and the transactions contemplated hereby. The applicable Loan Party shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Lender or the Administrative Agent, or any prospective assign or participant of a Lender or the Administrative Agent, in order to comply with any applicable CAML, whether now or hereafter in existence.
(c) If the Administrative Agent has ascertained the identity of the Loan Parties or any authorized signatories of the Loan Parties for the purposes of applicable CAML, then the Administrative Agent:
(i) shall be deemed to have done so as an agent for each Lender, and this Agreement shall constitute a “written agreement” in such regard between each Lender and Administrative Agent within the meaning of applicable CAML; and
(ii) shall provide to each Lender copies of all information obtained in such regard without any representation or warranty as to its accuracy or completeness.
(d) Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of the Lenders agrees that the Administrative Agent has no obligation to ascertain the identity of the Loan Parties or any authorized signatories of the Loan Parties on behalf of any Lender in connection with applicable CAML, or to confirm the completeness or accuracy of any information it obtains from the Obligors or any such authorized signatory in doing so.
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11.19. Lender Action. Notwithstanding anything contained in any of the Loan Documents, the Borrower, the Canadian Borrower, the Administrative Agent, each Lender and each other Secured Party hereby agree that (A) except with respect to the exercise of setoff rights in accordance with Section 11.7 or the right of any Secured Party to file a proof of claim in an insolvency proceeding, no Lender or Secured Party (other than the Administrative Agent) shall have any right individually to realize upon any of the Collateral under any Loan Documents or to enforce the guarantee set forth in the Guarantee and Collateral Agreement, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent for the benefit of the Secured Parties in accordance with the terms thereof and (B) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Lenders (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold in any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
11.20. Certain Undertakings with Respect to Securitization Subsidiaries.
(a) The Administrative Agent and Xxxxxx agrees that, prior to the date that is one (1) year and one (1) day after the payment in full of all the obligations of the Securitization Subsidiary in connection with and under a Securitization, (i) the Administrative Agent and such Lender shall not be entitled, whether before or after the occurrence of any Event of Default, to (A) institute against, or join any other Person in instituting against, any Securitization Subsidiary any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under the laws of the United States or any State thereof, (B) transfer and register the Capital Stock of any Securitization Subsidiary or any other instrument evidencing any Seller’s Retained Interest in the name of the Administrative Agent or a Secured Party or any designee or nominee thereof, (C) foreclose such security interest regardless of the bankruptcy or insolvency of any Group Member, (D) exercise any voting rights granted or appurtenant to such Capital Stock of any Securitization Subsidiary or any other instrument evidencing any Seller’s Retained Interest or (E) enforce any right that the holder of any such capital stock of any Securitization Subsidiary or any other instrument evidencing any Seller’s Retained Interest might otherwise have to liquidate, consolidate, combine, collapse or disregard the entity status of such Securitization Subsidiary, (ii) the Administrative Agent and such Lender hereby waives and releases any right to require (A) that any Securitization Subsidiary be in any manner merged, amalgamated, combined, collapsed or consolidated with or into any Group Member, including by way of substantive consolidation in a bankruptcy case or (B) that the status of any Securitization Subsidiary as a separate entity be in any respect disregarded and (iii) the Administrative Agent and such Lender agrees and acknowledges that the agent acting on behalf of the holders of securitization indebtedness of the Securitization Subsidiary is an express third party beneficiary with respect to Sections 11.20(a) and 11.20(b) and such agent shall have the right to enforce compliance by the Administrative Agent and Lenders with Sections 11.20(a) and 11.20(b).
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(b) Notwithstanding anything to the contrary in the Security Documents or other Loan Documents, upon the transfer or purported transfer by any Group Member of Securitization Assets to a Securitization Subsidiary in a Securitization, any Liens with respect to such Securitization Assets arising under this Agreement, any Security Documents or any other Loan Documents shall automatically be released (and the Administrative Agent is hereby authorized to execute and enter into any such releases and other documents as the Borrower or the Canadian Borrower may reasonably request in order to give effect thereto).
11.21. Certain Undertakings with Respect to Certain Affiliate Lenders.
(a) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, Affiliated Lenders shall not be permitted to attend any meeting (live or by any electronic means) in such Affiliated Lender’s capacity as a Lender with the Administrative Agent or other Lender or receive any information from the Administrative Agent or other Lender, except to the extent such information is made available to any Loan Party (or its representatives) and other than administrative notices given to all Lenders hereunder (including information delivered by the Borrower in accordance with Section 7.1 and Section 7.2), or have access to the Platform; and
(b) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, with respect to any Loans at any time held by an Affiliated Lender, such Affiliated Lender shall have no right whatsoever, in its capacity as a Lender with respect to such Loans then held by such Affiliated Lender, whether or not the Borrower or any other Loan Party is subject to a bankruptcy or other insolvency proceeding or otherwise, so long as such Lender is an Affiliated Lender, to (i) consent to any amendment, modification, waiver, consent or other such action with respect to, or otherwise vote on any matter related to, or vote in connection with any direction delivered to the Administrative Agent by the Required Lenders or Majority Facility Lenders under any Facility pursuant to, any of the terms of the Agreement or any other Loan Document, in each case to the extent such amendment, modification, waiver, consent, other action, vote or direction is effective with only the consent of or action by the Required Lenders or the Majority Facility Lenders under any Facility (each, a “Lender Vote/Directive”) and, if applicable, the Borrower; provided, that for purposes of any Lender Vote/Directive the Administrative Agent shall automatically deem any Loans held by such Affiliated Lender to be voted on a pro rata basis in accordance with the votes cast in respect of the Loans of all other Lenders in the aggregate (other than any Affiliated Lenders) in connection with any such Lender Vote/Directive (including all voting and consent rights arising out of any bankruptcy or other insolvency proceedings (except for voting on any plan of reorganization or refraining from voting on any plan of reorganization, in which case the Administrative Agent shall vote or refrain from voting such Loans of such Affiliated Lender in its sole discretion)); provided, further, that no such Lender Vote/Directive shall deprive such Affiliated Lender of its share of any payments or other recoveries which the Lenders are entitled to share on a pro rata basis under the Loan Documents and such Affiliated Lender’s vote shall be counted to the extent any such plan of reorganization or other amendment, waiver, modification or consent proposes to treat the Obligations of the Affiliated Lender in a manner less favorable in any material respect to such Affiliated Lender than the proposed treatment of Obligations held by Lenders that are not Affiliates of the Borrower.
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11.22. No Fiduciary Duty. The Administrative Agent, each Other Representative, each Lender and their Affiliates (collectively, solely for purposes of this Section 11.22, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their affiliates. The Borrower, on behalf of itself and each other Loan Party, agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender or Other Representative, on the one hand, and the Borrower and such other Loan Party, its stockholders or its affiliates, on the other. The Borrower, on behalf of itself and each other Loan Party, acknowledges and agrees that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders or Other Representatives, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender or Other Representative has assumed an advisory or fiduciary responsibility in favor of any Loan Party, their stockholders or their Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender or Other Representative has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender or Other Representative is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors or any other Person. The Borrower, on behalf of itself and each other Loan Party, acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. The Borrower, on behalf of itself and each other Loan Party, agrees that it will not claim that any Lender or Other Representative has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower or such other Loan Party, in connection with such transaction or the process leading thereto.
11.23.
Acknowledgment and Consent to Bail-In of Affected Financial Institutions Notwithstanding
anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any of the parties hereto,
each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent
such liability is unsecured, may be subject to the write-down and conversion powersWrite-Down
and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be
bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
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(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, 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 this Agreement or any other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of the write-down
and conversion powersWrite-Down and Conversion Powers
of the applicable Resolution Authority.
11.24. Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements 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 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; and
(b) As used in this Section 11.24, 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.
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“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“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).
11.25. Judgement Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder in dollars into another currency (the “Other Currency”), to the fullest extent permitted by applicable law, the rate of exchange used shall be that at which the Administrative Agent could, in accordance with normal procedures, purchase dollars with the Other Currency on the Business Day preceding that on which final judgment is given. The obligation of each Loan Party in respect of any such sum due from it to the Secured Parties hereunder shall, notwithstanding any judgment in such Other Currency, be discharged only to the extent that, on the Business Day immediately following the date on which the Administrative Agent receives any sum adjudged to be so due in the Other Currency, the Administrative Agent may, in accordance with normal banking procedures, purchase dollars with the Other Currency. If the dollars so purchased are less than the sum originally due to the Secured Parties in dollars, each Loan Party agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Secured Parties against such loss, and if the dollars so purchased exceed the sum originally due to the Secured Parties in dollars, the Secured Parties agree to remit to the Loan Parties such excess.
[Remainder of Page Intentionally Left Blank]
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Exhibit B
Form of Assignment and Assumption
see attached
EXHIBIT E-1
[FORM OF] ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each] Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] hereunder are several and not joint.] Capitalized terms used but not defined herein shall have the meanings given to such terms in the Credit Agreement identified below, receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any letters of credit, guarantees, and swingline loans included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
| 1. | Assignor[s]: | ||
| 2. | Assignee[s]: | ||
| [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] | |||
| 3. | Borrower[s]: | [OPENLANE, Inc.][ADESA Auctions Canada Corporation] | |
| 4. | Administrative Agent: | JPMorgan Chase Bank, N.A., as administrative agent under the Credit Agreement | |
| 5. | Credit Agreement: | Credit Agreement, dated as of June 23, 2023 (as amended by that certain First Amendment Agreement, dated as of January 19, 2024, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among OPENLANE, Inc., a Delaware corporation (the “Borrower”), ADESA Auctions Canada Corporation, a Nova Scotia unlimited company (the “Canadian Borrower”), the several banks and other financial institutions or entities from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. | |
| 6. | Assigned Interest[s]: |
| Assignor[s] | Assignee[s] | Facility Assigned |
Aggregate Amount of Commitment/Loans for all Lenders |
Amount of Commitment/Loans Assigned |
Percentage Assigned of Commitment/ Loans |
CUSIP Number |
| $ | $ | % | ||||
| $ | $ | % | ||||
| $ | $ | % |
| [7. | Trade Date: | ______________] |
[Page Break]
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
| ASSIGNOR[S] | ||
| [NAME OF ASSIGNOR] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [NAME OF ASSIGNOR] | ||
| By: | ||
| Name: | ||
| Title: | ||
| ASSIGNEE[S] | ||
| [NAME OF ASSIGNEE] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [NAME OF ASSIGNEE] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [Consented to and]1 Accepted: | ||
| JPMORGAN CHASE BANK, N.A., | ||
| as Administrative Agent | ||
| By: | ||
| Name: | ||
| Title: | ||
| [Consented to: | ||
| OPENLANE, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| ADESA AUCTIONS CANADA CORPORATION | ||
| By: | ||
| Name: | ||
| Title: ]2 | ||
| [Consented to: | ||
| [__], | ||
| as Issuing Lender | ||
| By: | ||
| Name: | ||
| Title:]3 | ||
1 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
2 To be added only if the consent of the Borrower and/or the Canadian Borrower is required by the terms of the Credit Agreement.
3 Consent of each Issuing Lender to be added only for assignment of Revolving Facility Commitments.
| [Consented to: | ||
| JPMORGAN CHASE BANK, N.A., | ||
| as Closing Date Revolving Facility Swingline Lender | ||
| By: | ||
| Name: | ||
| Title:]4 | ||
| [Consented to: | ||
| JPMORGAN CHASE BANK, N.A., TORONTO BRANCH | ||
| as 2024 Canadian Revolving Facility Swingline Lender | ||
| By: | ||
| Name: | ||
| Title:]5 | ||
4 To be added only for assignment of Closing Date Revolving Facility Commitments.
5 To be added only for assignment of 2024 Canadian Revolving Facility Commitments.
ANNEX 1
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2 Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.6 of the Credit Agreement (subject to such consents, if any, as may be required under Section 11.6(b) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 7.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][any] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent, [the][such] Assignor or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective permitted successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed signature page of this Assignment and Assumption by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. The words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to this Assignment and Assumption shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state laws based on the Uniform Electronic Transactions Act. THIS ASSIGNMENT AND ASSUMPTION AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Exhibit C
Form of Affiliated Lender Assignment and Assumption
see attached
EXHIBIT E-2
[FORM OF] AFFILIATED LENDER ASSIGNMENT AND ASSUMPTION
This Affiliated Lender Assignment and Assumption (the “Affiliated Lender Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each] Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] hereunder are several and not joint.] Capitalized terms used but not defined herein shall have the meanings given to such terms in the Credit Agreement identified below, receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Affiliated Lender Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any letters of credit, guarantees, and swingline loans included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Affiliated Lender Assignment and Assumption, without representation or warranty by [the][any] Assignor.
| 1. | Assignor[s]: | ||
| 2. | Assignee[s]: | ||
| [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] | |||
| 3. | Borrower[s]: | [OPENLANE, Inc.][ADESA Auctions Canada Corporation] | |
| 4. | Administrative Agent: | JPMorgan Chase Bank, N.A., as administrative agent under the Credit Agreement | |
| 5. | Credit Agreement: | Credit Agreement, dated as of June 23, 2023 (as amended by that certain First Amendment Agreement, dated as of January 19, 2024, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among OPENLANE, Inc., a Delaware corporation (the “Borrower”), ADESA Auctions Canada Corporation, a Nova Scotia unlimited company (the “Canadian Borrower”), the several banks and other financial institutions or entities from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. | |
| 6. | Assigned Interest[s]: |
| Assignor[s] | Assignee[s] | Facility Assigned |
Aggregate Amount of Commitment/Loans for all Lenders |
Amount of Commitment/Loans Assigned |
Percentage Assigned of Commitment/ Loans |
CUSIP Number |
| $ | $ | % | ||||
| $ | $ | % | ||||
| $ | $ | % |
| [7. | Trade Date: | ______________] |
[Page Break]
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Affiliated Lender Assignment and Assumption are hereby agreed to:
| ASSIGNOR[S] | ||
| [NAME OF ASSIGNOR] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [NAME OF ASSIGNOR] | ||
| By: | ||
| Name: | ||
| Title: | ||
| ASSIGNEE[S] | ||
| [NAME OF ASSIGNEE] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [NAME OF ASSIGNEE] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [Consented to and]6 Accepted: | ||
| JPMORGAN CHASE BANK, N.A., | ||
| as Administrative Agent | ||
| By: | ||
| Name: | ||
| Title: | ||
| [Consented to: | ||
| [NAME OF RELEVANT PARTY] | ||
| By: | ||
| Name: | ||
| Title:]7 | ||
6 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
7 To be added only if the consent of another party is required by the terms of the Credit Agreement.
ANNEX 1
STANDARD
TERMS AND CONDITIONS FOR
AFFILIATED LENDER ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Affiliated Lender Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document; and (c) acknowledges that [the][each] Assignee is an Affiliated Lender and [the Borrower] [a Subsidiary of the Borrower].
1.2 Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Affiliated Lender Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.6 of the Credit Agreement (subject to such consents, if any, as may be required under Section 11.6(b) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest, [and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type,]8 (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 7.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Affiliated Lender Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Affiliated Lender Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) attached to the Affiliated Lender Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. [The] [Each] Assignee represents and warrants that it is an Affiliated Lender and [the Borrower] [a Subsidiary of the Borrower]. By executing this Affiliated Lender Assignment and Assumption, the Assignee agrees to be bound by the terms of Section 11.6(g), 11.21(a) [and 11.21(b)]9 of the Credit Agreement, and represents and warrants that the purchase and assumption of the Assigned Interest satisfies the terms and conditions of Section 11.6(g), 11.21(a) [and 11.21(b)]10 of the Credit Agreement.
8 Include bracketed language for all Affiliated Lender Assignment and Assumptions other than an assignment to a Borrower or its Subsidiaries.
9 Include if the Assignee is an Affiliated Lender.
10 Include if the Assignee is an Affiliated Lender.
Exhibit C
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions. This Affiliated Lender Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective permitted successors and assigns. This Affiliated Lender Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed signature page of this Affiliated Lender Assignment and Assumption by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Affiliated Lender Assignment and Assumption. The words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to this Affiliated Lender Assignment and Assumption shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state laws based on the Uniform Electronic Transactions Act. THIS AFFILIATED LENDER ASSIGNMENT AND ASSUMPTION AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AFFILIATED LENDER ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Exhibit D-1
Form of Closing Date Revolving Facility Note
see attached
EXHIBIT G-2-1
[FORM OF] CLOSING DATE REVOLVING FACILITY NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE Credit Agreement REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH Credit Agreement.
$[____________] New York, New York
[ ___________ ___, 20__ ]
FOR VALUE RECEIVED, the undersigned, [OPENLANE, Inc., a Delaware corporation (the “Borrower”)][ADESA AUCTIONS CANADA CORPORATION, a Nova Scotia unlimited company (the “Canadian Borrower”)], hereby unconditionally promises to pay to [________] (the “Lender”) or its registered successors and assigns at the Funding Office specified in the Credit Agreement (as hereinafter defined) in lawful money of [the United States][Canada] and in immediately available funds, on the Closing Date Revolving Facility Termination Date the principal amount of (a) [________] [CANADIAN] DOLLARS ($[_____]), or, if less, (b) the aggregate unpaid principal amount of all Closing Date Revolving Facility Loans of the Lender outstanding under the Credit Agreement. [The Borrower][The Canadian Borrower] further agrees to pay interest in like money at such Funding Office on the unpaid principal amount hereof from time to time outstanding at the applicable rates and on the dates specified in Section 4.5 of the Credit Agreement.
The holder of this Closing Date Revolving Facility Note (this “Note”) is authorized to endorse on the schedules annexed hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of each Closing Date Revolving Facility Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another Type and, in the case of Term Benchmark Loans, the length of each Interest Period with respect thereto. Each such endorsement shall constitute rebuttably presumptive evidence of the accuracy of the information endorsed. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of [the Borrower][the Canadian Borrower] under the Credit Agreement and other Loan Documents in respect of any Closing Date Revolving Facility Loan.
This Note (a) is one of the Notes evidencing the Closing Date Revolving Facility Loans under the Credit Agreement, dated as of June 23, 2023 (as amended by that certain First Amendment Agreement, dated as of January 19, 2024, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among the Borrower, the Canadian Borrower, the several banks and other financial institutions or entities from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”), (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the Loan Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security and the guarantees, the terms and conditions upon which the security interests and each guarantee were granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all principal and all accrued interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind under this Note to the fullest extent permitted under applicable law.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 11.6 OF THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
| [OPENLANE, INC. | ||
| By: | ||
| Name: | ||
| Title: ] | ||
| [ADESA AUCTIONS CANADA CORPORATION | ||
| By: | ||
| Name: | ||
| Title: ] | ||
Schedule A
to Closing Date Revolving Facility Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
| Date | Amount of Base Rate Loans |
Amount Converted to Base Rate Loans |
Amount of Principal of Base Rate Loans Repaid |
Amount of Base Rate Loans Converted to Term Benchmark Loans |
Unpaid Principal Balance of Base Rate Loans |
Notation Made By |
Schedule B(1)
to Closing Date Revolving Facility Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF TERM SOFR RATE LOANS
| Date | Amount of Term SOFR Rate Loans |
Amount Converted to Term SOFR Rate Loans |
Interest Period and Adjusted Term SOFR Rate with Respect Thereto |
Amount of Principal of Term SOFR Rate Loans Repaid |
Amount of Term SOFR Rate Loans Converted to Base Rate Loans |
Unpaid Principal Balance of Term SOFR Rate Loans |
Notation Made By |
Schedule B(2)
to Closing Date Revolving Facility Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF TERM XXXXX RATE LOANS
| Date | Amount of Term XXXXX Rate Loans |
Interest Period and Term XXXXX Rate with Respect Thereto |
Amount of Principal of Term XXXXX Rate Loans Repaid |
Unpaid Principal Balance of Term XXXXX Rate Loans |
Notation Made By |
Exhibit D-1
EXHIBIT D-2
Form of 2024 Canadian Revolving Facility Note
see attached
EXHIBIT G-2-2
[FORM OF] 2024 CANADIAN REVOLVING FACILITY NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE Credit Agreement REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH Credit Agreement.
$[____________] New York, New York
[ ___________ ___, 20__ ]
FOR VALUE RECEIVED, the undersigned, ADESA AUCTIONS CANADA CORPORATION, a Nova Scotia unlimited company (the “Canadian Borrower”), hereby unconditionally promises to pay to [________] (the “Lender”) or its registered successors and assigns at the Funding Office specified in the Credit Agreement (as hereinafter defined) in lawful money of Canada and in immediately available funds, on the 2024 Canadian Revolving Facility Termination Date the principal amount of (a) [________] CANADIAN DOLLARS ($[_____]), or, if less, (b) the aggregate unpaid principal amount of all 2024 Canadian Revolving Facility Loans of the Lender outstanding under the Credit Agreement. The Canadian Borrower further agrees to pay interest in like money at such Funding Office on the unpaid principal amount hereof from time to time outstanding at the applicable rates and on the dates specified in Section 4.5 of the Credit Agreement.
The holder of this 2024 Canadian Revolving Facility Note (this “Note”) is authorized to endorse on the schedules annexed hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date, Type and amount of each 2024 Canadian Revolving Facility Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof, each continuation thereof, each conversion of all or a portion thereof to another Type and, in the case of Term Benchmark Loans, the length of each Interest Period with respect thereto. Each such endorsement shall constitute rebuttably presumptive evidence of the accuracy of the information endorsed. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of the Canadian Borrower under the Credit Agreement and other Loan Documents in respect of any 2024 Canadian Revolving Facility Loan.
This Note (a) is one of the Notes evidencing the 2024 Canadian Revolving Facility Loans under the Credit Agreement, dated as of June 23, 2023 (as amended by that certain First Amendment Agreement, dated as of January 19, 2024, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among OPENLANE, Inc., a Delaware corporation, the Canadian Borrower, the several banks and other financial institutions or entities from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”), (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the Loan Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security and the guarantees, the terms and conditions upon which the security interests and each guarantee were granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all principal and all accrued interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind under this Note to the fullest extent permitted under applicable law.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 11.6 OF THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
| ADESA AUCTIONS CANADA CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
Schedule A
to 2024 Canadian Revolving Facility Note
LOANS, CONVERSIONS AND REPAYMENTS OF CANADIAN PRIME RATE LOANS
| Date | Amount of Canadian Prime Rate Loans |
Amount Converted to Canadian Prime Rate Loans |
Amount of Principal of Canadian Prime Rate Loans Repaid |
Amount of Canadian Prime Rate Loans Converted to Term Benchmark Loans |
Unpaid Principal Balance of Canadian Prime Rate Loans |
Notation Made By |
Schedule B
to 2024 Canadian Revolving Facility Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF TERM BENCHMARK LOANS
| Date | Amount of Term Benchmark Loans |
Amount Converted to Term Benchmark Loans |
Interest Period and Adjusted Term XXXXX Rate with Respect Thereto |
Amount of Principal of Term Benchmark Loans Repaid |
Amount of Term Benchmark Loans Converted to Canadian Prime Rate Loans |
Unpaid Principal Balance of Term Benchmark Loans |
Notation Made By |
EXHIBIT E-1
Form of Closing Date Revolving Facility Swingline Note
see attached
EXHIBIT G-3-1
[FORM OF] CLOSING DATE REVOLVING FACILITY SWINGLINE NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE Credit Agreement REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH Credit Agreement.
$[_______________] New York, New York
[ __________ __, 20___ ]
FOR VALUE RECEIVED, the undersigned, OPENLANE, Inc., a Delaware corporation (the “Borrower”), hereby unconditionally promises to pay to JPMorgan Chase Bank, N.A. (the “Swingline Lender”) or its registered successors and assigns at the Funding Office specified in the Credit Agreement (as hereinafter defined) in lawful money of the United States and in immediately available funds, on the Closing Date Revolving Facility Termination Date the principal amount of (a) [____________] DOLLARS ($[_______]), or, if less, (b) the aggregate unpaid principal amount of all Closing Date Revolving Facility Swingline Loans made by the Swingline Lender to the Borrower pursuant to Section 3.4 of the Credit Agreement. The Borrower further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time outstanding at the applicable rates and on the dates specified in Section 4.5 of such Credit Agreement.
The holder of this Closing Date Revolving Facility Swingline Note (this “Note”) is authorized to endorse on the schedules annexed hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date and amount of each Closing Date Revolving Facility Swingline Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof. Each such endorsement shall constitute rebuttably presumptive evidence of the accuracy of the information endorsed. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of the Borrower under the Credit Agreement and other Loan Documents in respect of any Closing Date Revolving Facility Swingline Loan.
This Note (a) is the Note evidencing the Closing Date Revolving Facility Swingline Loan under the Credit Agreement, dated as of June 23, 2023 (as amended by that certain First Amendment Agreement, dated as of January 19, 2024, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, ADESA Auctions Canada Corporation, a Nova Scotia unlimited company, the several banks and other financial institutions or entities from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”), (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the Loan Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security and the guarantees, the terms and conditions upon which the security interests and each guarantee were granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all principal and all accrued interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind under this Note to the fullest extent permitted under applicable law.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 11.6 OF THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
| OPENLANE, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
Schedule A
to Closing Date Revolving Facility Swingline Note
LOANS AND REPAYMENTS OF CLOSING DATE REVOLVING FACILITY SWINGLINE LOANS
| Date | Amount of Closing Date Revolving Facility Swingline Loans |
Amount of Principal of Closing Date Revolving Facility Swingline Loans Repaid |
Unpaid Principal Balance of Closing Date Revolving Facility Swingline Loans |
Notation Made By |
EXHIBIT E-2
Form of 2024 Canadian Revolving Facility Swingline Note
see attached
EXHIBIT G-3-2
[FORM OF] 2024 CANADIAN REVOLVING FACILITY SWINGLINE NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE Credit Agreement REFERRED TO BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE TERMS OF SUCH Credit Agreement.
$[_______________] New York, New York
[ __________ __, 20___ ]
FOR VALUE RECEIVED, the undersigned, ADESA AUCTIONS CANADA CORPORATION, a Nova Scotia unlimited company (the “Canadian Borrower”), hereby unconditionally promises to pay to JPMorgan Chase Bank, N.A., Toronto Branch (the “Swingline Lender”) or its registered successors and assigns at the Funding Office specified in the Credit Agreement (as hereinafter defined) in lawful money of Canada and in immediately available funds, on the 2024 Canadian Revolving Facility Termination Date the principal amount of (a) [____________] CANADIAN DOLLARS ($[_______]), or, if less, (b) the aggregate unpaid principal amount of all 2024 Canadian Revolving Facility Swingline Loans made by the Swingline Lender to the Canadian Borrower pursuant to Section 3.4 of the Credit Agreement. The Canadian Borrower further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time outstanding at the applicable rates and on the dates specified in Section 4.5 of such Credit Agreement.
The holder of this 2024 Canadian Revolving Facility Swingline Note (this “Note”) is authorized to endorse on the schedules annexed hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof the date and amount of each 2024 Canadian Revolving Facility Swingline Loan made pursuant to the Credit Agreement and the date and amount of each payment or prepayment of principal thereof. Each such endorsement shall constitute rebuttably presumptive evidence of the accuracy of the information endorsed. The failure to make any such endorsement or any error in any such endorsement shall not affect the obligations of the Canadian Borrower under the Credit Agreement and other Loan Documents in respect of any 2024 Canadian Revolving Facility Swingline Loan.
This Note (a) is the Note evidencing the 2024 Canadian Revolving Facility Swingline Loan under the Credit Agreement, dated as of June 23, 2023 (as amended by that certain First Amendment Agreement, dated as of January 19, 2024, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among OPENLANE Inc., a Delaware corporation, the Canadian Borrower, the several banks and other financial institutions or entities from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”), (b) is subject to the provisions of the Credit Agreement and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This Note is secured and guaranteed as provided in the Loan Documents. Reference is hereby made to the Loan Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security and the guarantees, the terms and conditions upon which the security interests and each guarantee were granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all principal and all accrued interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind under this Note to the fullest extent permitted under applicable law.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 11.6 OF THE CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
| ADESA AUCTIONS CANADA CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
Schedule A
to 2024 Canadian Revolving Facility Swingline Note
LOANS AND REPAYMENTS OF 2024 CANADIAN REVOLVING FACILITY SWINGLINE LOANS
| Date | Amount of 2024 Canadian Revolving Facility Swingline Loans |
Amount of Principal of 2024 Canadian Revolving Facility Swingline Loans Repaid |
Unpaid Principal Balance of 2024 Canadian Revolving Facility Swingline Loans |
Notation Made By |
SCHEDULE I
TO FIRST AMENDMENT AGREEMENT
2024 Canadian Revolving Facility Commitment Allocation
| Name of Xxxxxx | Xxxxxx | |||
| JPMORGAN CHASE BANK, N.A., TORONTO BRANCH | C$ | 30,000,000.00 | ||
| BANK OF MONTREAL | C$ | 25,000,000.00 | ||
| ROYAL BANK OF CANADA | C$ | 25,000,000.00 | ||
| BANK OF AMERICA, N.A., CANADA BRANCH | C$ | 20,000,000.00 | ||
| BARCLAYS BANK PLC | C$ | 12,500,000.00 | ||
| XXXXXXX XXXXX BANK USA | C$ | 12,500,000.00 | ||
| FIFTH THIRD BANK, National association | C$ | 12,500,000.00 | ||
| U.S. BANK NATIONAL ASSOCIATION | C$ | 12,500,000.00 | ||
| TRUIST BANK | C$ | 12,500,000.00 | ||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, CANADIAN BRANCH | C$ | 12,500,000.00 | ||
| Total: | C$ | 175,000,000.00 | ||
Schedule I
