NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
Exhibit 99.5
NINTH AMENDMENT TO
FOURTH AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
NINTH AMENDMENT TO FOURTH AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT (this “Ninth Amendment”), dated as of January 22, 2024, among BRP INC., a corporation existing under the laws of Canada (“Holdings”), BOMBARDIER RECREATIONAL PRODUCTS INC., a corporation existing under the laws of Canada (the “Borrower”), each Guarantor party hereto, BANK OF MONTREAL (“Bank of Montreal”), as administrative agent (in such capacity, including any permitted successor and assigns, the “Administrative Agent”), the 2024 Extending Term Lenders (as defined below) and the 2024 Incremental Lender (as defined below). All capitalized terms used herein (including in this preamble) and not otherwise defined herein shall have the respective meanings provided such terms in the Term Credit Agreement referred to below.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower has entered into that certain Fourth Amended and Restated Term Loan Credit Agreement, dated as of May 23, 2018, among Holdings, the Borrower, the other Guarantors from time to time party thereto, the Lenders party thereto from time to time and Bank of Montreal, as the Administrative Agent (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time to, but not including, the date hereof, the “Term Credit Agreement”);
WHEREAS, pursuant to the Term Credit Agreement, certain Lenders (the “Existing 2020 Replacement Term Lenders”) have extended 2020 Replacement Term Loans (the “Existing 2020 Replacement Term Loans”) to the Borrower and as of the date hereof (but prior to giving effect to this Ninth Amendment), the aggregate outstanding principal balance of such Existing 2020 Replacement Term Loans is $1,465,748,228.70.
WHEREAS, in accordance with Section 2.16 of the Term Credit Agreement, the Borrower has requested (which request hereunder shall serve as notice pursuant to Section 2.16 of the Term Credit Agreement) an Extension Amendment to extend the maturity date of all or a portion of the Existing 2020 Replacement Term Loans on the terms set forth herein (the “2024 Extension”);
WHEREAS, in accordance with Section 2.16 of the Term Credit Agreement and this Ninth Amendment, each Existing 2020 Replacement Term Lender that executes and delivers a counterpart signature page of this Ninth Amendment (such consenting Lenders, the “2024 Extending Term Lenders”) will be deemed (i) to have agreed to the terms of this Ninth Amendment and the Term Credit Agreement as amended by this Ninth Amendment, (ii) to have agreed to exchange (as further described herein) its Existing 2020 Replacement Term Loans for Extended Term Loans (such exchanged Term Loans, the “2024 Extended Term Loans”) in an equal principal amount, and (iii) upon the Ninth Amendment Closing Date to have exchanged (as further described herein) its Existing 2020 Replacement Term Loans for 2024 Extended Term Loans in an equal principal amount, which will be effectuated by cashless exchange;
WHEREAS, pursuant to Section 2.14 of the Term Credit Agreement, the Borrower has delivered an Incremental Loan Request to the Administrative Agent requesting that Bank of Montreal (the “2024 Incremental Lender”) make Incremental Loans to the Borrower on the Ninth Amendment Closing Date in an aggregate principal amount of $45,861,735.18 (the “2024 Incremental Loans” and the Incremental Commitments under this Ninth Amendment of the 2024 Incremental Lender with respect to the 2024 Incremental Loans, the “2024 Incremental Commitments”), which will be used by the Borrower to fund the 2024 Refinancing (as defined below);
WHEREAS, the Borrower has delivered a notice to the Administrative Agent (the “Prepayment Notice”) to voluntarily prepay Existing 2020 Replacement Term Loans in a principal amount of $45,861,735.18 (together with accrued and unpaid interest and premium) immediately after the consummation of the 2024 Extension with the proceeds of the 2024 Incremental Loans (the “2024 Refinancing”);
WHEREAS, as contemplated by Section 2.14 of the Term Credit Agreement, (x) the parties hereto have agreed, subject to the satisfaction of the conditions precedent to effectiveness set forth in Section 5 hereof, to amend certain terms of the Term Credit Agreement as hereinafter provided to give effect to the incurrence of the 2024 Incremental Loans and (y) this Ninth Amendment shall constitute an Incremental Amendment;
WHEREAS, the 2024 Incremental Lender is prepared to provide the 2024 Incremental Loans in an amount equal to its 2024 Incremental Commitment set forth on Schedule 1 hereto subject to the terms and conditions set forth herein; and
WHEREAS, pursuant to that certain amended and restated engagement letter, dated as of January 9, 2024, among BMO CAPITAL MARKETS CORP. (“BCM”), RBC CAPITAL MARKETS (“RBCCM”), ROYAL BANK OF CANADA (“Royal Bank” and together with RBCCM, “RBC”), TD SECURITIES (USA) LLC (“TD”), CITIGROUP GLOBAL MARKETS INC. (“Citi”), NATIONAL BANK OF CANADA FINANCIAL INC. (“NBC”), CIBC WORLD MARKETS CORP. (“CIBC”) and TRUIST SECURITIES, INC. and the Borrower (the “Ninth Amendment Engagement Letter”), BCM, RBCCM, TD and Citi shall act as joint lead arrangers and joint bookrunners, NBC and CIBC shall act as joint bookrunners and Truist shall act as a co-manager (with BCM to have “left” placement in any and all marketing materials and have the leading roles and responsibilities conventionally associated with such “left” placement), in each case, with respect to this Ninth Amendment, the 2024 Extension and the 2024 Incremental Loans.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged by each party hereto, it is agreed that:
| SECTION 1. | RULES OF CONSTRUCTION. The rules of construction specified in Section 1.02 of the Term Credit Agreement shall apply to this Ninth Amendment, including the terms defined in the preamble and recitals hereto. |
SECTION 2. EXTENSION, INCREMENTAL LOANS AND AMENDMENTS TO CREDIT AGREEMENT.
(a) Extension. Subject to the satisfaction of the conditions set forth in Section 5, on and as of the Ninth Amendment Closing Date:
(i) Each 2024 Extending Term Lender agrees that, immediately prior to the amendments in clause (b) below taking effect, the aggregate principal amount of its Existing 2020 Replacement Term Loans indicated on such 2024 Extending Term Lender’s signature page to this Ninth Amendment will be exchanged for an equal amount of 2024 Extended Term Loans through a cashless exchange as permitted by Section 1.12 of the Term Credit Agreement.
(ii) The 2024 Extended Term Loans established pursuant to this Ninth Amendment shall have the “Applicable Margin,” “Interest Period,” “Maturity Date,” amortization and prepayment premium, in each case, as set forth in the Term Credit Agreement as amended by this Ninth Amendment, and all other terms and
2
conditions applicable to the 2024 Extended Term Loans shall be the same as the corresponding terms and conditions applicable to the 2020 Replacement Term Loans, as set forth in the Term Credit Agreement as amended by this Ninth Amendment.
(iii) The 2024 Extended Term Loans shall constitute a separate tranche of Term Loans and a separate “Class” from the 2020 Replacement Term Loans for all purposes of the Term Credit Agreement (as amended by this Ninth Amendment) and the other Loan Documents.
(iv) The Existing 2020 Replacement Term Loans of each Existing 2020 Replacement Term Lender that does not deliver an executed signature page to this Ninth Amendment (each such Lender, a “Non-Extending Lender”) shall continue as and shall be deemed to constitute 2020 Replacement Term Loans on and after the Ninth Amendment Closing Date.
(v) As of the Ninth Amendment Closing Date, after giving effect to the 2024 Extension and the cashless exchange described in sub-clause (i) above, (1) the aggregate outstanding principal amount of 2020 Replacement Term Loans (for the avoidance of doubt, which shall be held by Non-Extending Lenders that shall have elected not to participate in the 2024 Extension) shall be $511,609,963.88 and (2) the aggregate outstanding principal amount of 2024 Extended Term Loans held by 2024 Extending Term Lenders shall be $954,138,264.82.
(vi) This Ninth Amendment shall constitute an Extension Request to the Existing 2020 Replacement Term Lenders and an Extension Amendment pursuant to Section 2.16 of the Term Credit Agreement.
(b) Incremental Loans. Subject to the satisfaction of the conditions set forth in Section 5, on and as of the Ninth Amendment Closing Date, immediately after the consummation of the transactions described in clause (a) above, pursuant to Section 2.14 of the Term Credit Agreement:
(i) The 2024 Incremental Lender hereby agrees to provide to the Borrower its 2024 Incremental Commitment set forth opposite its name under the heading “2024 Incremental Commitment” on Schedule 1 to this Ninth Amendment. The full amount of the 2024 Incremental Loans shall be drawn by the Borrower in a single drawing on the Ninth Amendment Closing Date and amounts paid or prepaid in respect of the 2024 Incremental Loans may not be reborrowed. The 2024 Incremental Loans (x) shall be made pursuant to (and form part of) the existing Class of 2024 Extended Term Loans and (y) shall be subject to the interest rates (including Applicable Rates), amortization, voluntary prepayment terms and mandatory prepayment terms applicable to the 2024 Extended Term Loans as set forth in the Credit Agreement (as amended by this Ninth Amendment). The 2024 Incremental Term Loans shall be subject to scheduled amortization set forth in the Credit Agreement (as amended by this Ninth Amendment) and with the remaining outstanding principal amount due and payable in full on the Maturity Date for the existing 2024 Extended Term Loans.
(ii) The 2024 Incremental Lender, the Administrative Agent and the Loan Parties party hereto agree that this Ninth Amendment shall constitute an Incremental Amendment pursuant to and in accordance with Section 2.14(f) of the Term Credit Agreement.
3
(iii) Immediately upon the incurrence of the 2024 Incremental Loans on the Ninth Amendment Closing Date, (i) the 2024 Incremental Term Loans shall be added to (and form part of) each Borrowing of existing 2024 Extended Term Loans outstanding under the Credit Agreement immediately after the consummation of the transactions described in clause (a) above but prior to the consummation of the transactions described in this clause (b) on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender with outstanding 2024 Extended Term Loans (including each 2024 Incremental Lender with outstanding 2024 Incremental Loans) will participate proportionately in each then outstanding Borrowing of 2024 Extended Term Loans with the same Interest Period as the existing 2024 Extended Term Loans, (ii) the 2024 Incremental Term Loans shall constitute a single Class of Term Loans with the 2024 Extended Term Loans (and shall be fully fungible with the existing 2024 Extended Term Loans), (iii) the 2024 Incremental Term Loans shall constitute “2024 Extended Term Loans” for all purposes under, and subject to the provisions of, the Loan Documents, and (iv) the 2024 Incremental Term Loans shall be secured by the same Collateral and guarantied on identical terms as the existing 2024 Extended Term Loans in each case pursuant to the respective Loan Documents.
(iv) The 2024 Incremental Commitment of the 2024 Incremental Lender shall automatically terminate upon the funding of the 2024 Incremental Loans on the Ninth Amendment Closing Date.
(v) The proceeds of the 2024 Incremental Loans shall be used by the Borrower to fund the 2024 Refinancing.
(vi) The Borrower hereby designates that the full principal amount of 2024 Incremental Loans is being incurred in reliance on clause (d)(iii)(A) of Section 2.14 of the Term Credit Agreement.
(c) Subject to the satisfaction of the conditions set forth in Section 5, upon the
consummation of the 2024 Extension and the making of the 2024 Incremental Term Loans, the Term Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the underlined text (indicated textually in the same manner as the following example:
underlined text) as set forth in the pages of the Term Credit Agreement attached as Exhibit A hereto.
SECTION 3. REFERENCE TO AND EFFECT ON THE TERM CREDIT AGREEMENT. On and after the Ninth Amendment Closing Date, (i) each reference in the Term Credit Agreement to “this Agreement,” “hereunder,” “hereof” or text of like import referring to the Term Credit Agreement shall mean and be a reference to the Term Credit Agreement as amended by this Ninth Amendment, (ii) the 2024 Extended Term Loans (including the 2024 Incremental Term Loans) shall constitute “Loans” and “Term Loans”, in each case, under and as defined in the Term Credit Agreement, (iii) the 2024 Extending Term Lenders and the 2024 Incremental Lender shall each constitute a “Lender” and a “Term Lender”, (other than for purposes of Section 2.01(a)(i) of the Term Credit Agreement), (iv) the 2024 Incremental Commitments shall constitute, “Commitments” and “Incremental Commitments”, in each case, under and as defined in the Term Credit Agreement, (v) the Ninth Amendment Closing Date shall constitute the “Incremental Facility Closing Date” under and as defined in the Term Credit Agreement with respect to the 2024 Incremental Loans and (vi) this Ninth Amendment shall constitute an “Incremental Amendment” under and as defined in the Term Credit Agreement, in each case, under and as defined in the Term Credit Agreement. On and after the effectiveness of this Ninth Amendment, this Ninth Amendment shall for all purposes
4
constitute a “Loan Document” under and as defined in the Term Credit Agreement and the other Loan Documents.
SECTION 4. REPRESENTATIONS & WARRANTIES. In order to induce the 2024 Extending Term Lenders, the 2024 Incremental Lender and the Administrative Agent to enter into this Ninth Amendment, to induce the 2024 Extending Term Lenders to consent to the 2024 Extension and to induce the 2024 Incremental Lender to make the 2024 Incremental Loans hereunder, each Loan Party hereby represents and warrants to the 2024 Extending Term Lenders, the 2024 Incremental Lender and the Administrative Agent on and as of the Ninth Amendment Closing Date, that:
(a) The execution, delivery and performance by such Loan Party of this Ninth Amendment will not (i) contravene the terms of any of such Person’s Organization Documents, (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01 of the Term Credit Agreement), or require any payment to be made under (x) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (y) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject or (iii) violate any Law; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clauses (ii) and (iii), to the extent that such violation, conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.
(b) Each Loan Party party hereto has the requisite power and authority to execute, deliver and perform the terms and provisions of this Ninth Amendment and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance by it of this Ninth Amendment. Each Loan Party has duly executed and delivered this Ninth Amendment, and this Ninth Amendment, the Term Credit Agreement as amended hereby and each other Loan Document to which such Loan Party is a party constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except as such enforceability may be limited by (i) Debtor Relief Laws and by general principles of equity principles of good faith and fair dealing, and (ii) the need for filings and registrations necessary to create or perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties and (iii) the effect of foreign Laws, rules and regulations as they relate to pledges of Equity Interests in Foreign Subsidiaries.
(c) Each of the representations and warranties set forth in the Term Credit Agreement and in the other Loan Documents is true and correct in all material respects on and as of the Ninth Amendment Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, however, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(d) All proceeds of the 2024 Incremental Loans will be used for the purposes set forth in Section 2(b)(v) hereof.
SECTION 5. CONDITIONS PRECEDENT. This Ninth Amendment shall become effective as of the first date (the “Ninth Amendment Closing Date”) when each of the conditions set forth in this Section 5 shall have been satisfied:
(a) The Administrative Agent shall have received a duly authorized, executed and delivered counterpart of the signature page to this Ninth Amendment from each Loan Party named on the
5
signature pages hereto, the Administrative Agent, each of the 2024 Extending Term Lenders and the 2024 Incremental Lender.
(b) (i) All fees and expenses (including all invoiced reasonable out-of-pocket costs, fees and expenses (including invoiced reasonable and out-of-pocket legal fees and expenses reimbursable hereunder)) shall have been paid to the extent earned, due and owing and otherwise payable or reimbursable pursuant to the terms of the Loan Documents and, in the case of expenses, otherwise invoiced prior to the Ninth Amendment Closing Date, (ii) fees and expenses incurred by or on behalf of (1) the 2024 Extending Term Lenders in connection with the 2024 Extension in the amounts agreed between the 2024 Extending Term Lenders and the Borrower and (2) the 2024 Incremental Lender in connection with the funding of the 2024 Incremental Loans in the amounts agreed between the 2024 Incremental Lender and the Borrower, in each case, shall be due and payable on the Ninth Amendment Closing Date to the extent, in the case of expenses, invoiced at least three (3) business days prior to the Ninth Amendment Closing Date (provided that legal expenses payable pursuant to this clause (ii) shall be limited to the reasonable and documented fees and expenses of White & Case LLP and Xxxxxx Xxxx Xxxxxxxx & Xxxxxxxx LLP, in each case, as counsel to the 2024 Extended Term Lenders and the 2024 Incremental Lender) and (iii) all accrued and unpaid interest on the Existing 2020 Replacement Term Loans through, but not including, the Ninth Amendment Closing Date shall have been paid to the Administrative Agent for the ratable account of each Existing 2020 Replacement Term Lender, respectively.
(c) Both immediately before and after giving effect to this Ninth Amendment, (i) no Default or Event of Default shall have occurred or be continuing and (ii) all representations and warranties contained in this Ninth Amendment, the Term Credit Agreement and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the date hereof (except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided, however, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates).
(d) After giving effect to the Extension, the making of all Incremental Loans on such date and the 2024 Refinancing, the Borrower’s Secured Net Leverage Ratio shall not exceed 3.75:1.00 on the Ninth Amendment Closing Date determined on a Pro Forma Basis as of the last day of the Test Period most recently ended prior to the date of the incurrence of such 2024 Incremental Loans for which internal financial statements are available (as determined in good faith by the Borrower), as if all such 2024 Incremental Loans had been incurred on the last day of such Test Period.
(e) The Administrative Agent shall have received a Committed Loan Notice meeting the requirements of Section 2.02(a) of the Term Credit Agreement for the 2024 Incremental Loans.
(f) The Administrative Agent shall have received a Prepayment Notice meeting the requirements of Section 2.05(a) of the Term Credit Agreement for the prepayment of Existing 2020 Replacement Term Loans in a principal amount of $45,861,735.18.
(g) The Administrative Agent shall have received an officer’s certificate of the Borrower, dated the Ninth Amendment Closing Date, executed by a Responsible Officer of the Borrower certifying to the best of such officer’s knowledge, compliance with the requirements set forth in preceding clauses (c) and (d) of this Section 5.
(h) On the Ninth Amendment Closing Date, the Administrative Agent shall have received a customary opinion of Ropes & Gray LLP, U.S. counsel to the Loan Parties and Stikeman Elliott,
6
Canadian counsel to the Loan Parties, in each case, (i) in form and substance consistent with the legal opinion delivered on the Closing Date with such changes as shall be reasonably satisfactory to the Administrative Agent, (ii) addressed to the Administrative Agent, the 2024 Extending Term Lenders and the 2024 Incremental Lender and (iii) dated the Ninth Amendment Closing Date.
(i) The Administrative Agent shall have received a customary certificate from each Loan Party, dated the Ninth Amendment Closing Date, signed by a Responsible Officer of such Loan Party, and attested to by the secretary or any assistant secretary of such Loan Party, with appropriate insertions, together with (i) certified copies of the certificate or articles of incorporation and by-laws (or other equivalent organizational documents), as applicable, of such Loan Party, (ii) customary resolutions of such Loan Party referred to in such certificate, (iii) incumbency or specimen signatures which identify by name and title the Responsible Officer or authorized signatory of such Loan Party authorized to sign this Ninth Amendment, and (iv) a good standing certificate from the applicable Governmental Authority of such Loan Party’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Ninth Amendment Closing Date and certifying as to the good standing of such Loan Party (but only if the concept of good standing exists in the applicable jurisdiction); provided that in the case of preceding clause (i), such documents shall not be required to be delivered if such certificate includes a certification by such officer that the applicable organizational documents delivered to the Administrative Agent in connection with the initial funding of Term B Loans on the Closing Date (or any date thereafter) remain in full force and effect and have not been amended, modified, revoked or rescinded since the Closing Date (or such date thereafter).
(j) The Administrative Agent shall have received a solvency certificate from the chief financial officer (or other officer with reasonably equivalent duties) of the Borrower substantially in the form of Exhibit D-2 to the Term Credit Agreement and dated the Ninth Amendment Closing Date certifying that the Borrower and its Restricted Subsidiaries are Solvent (after giving effect to the 2024 Extension, the incurrence of the 2024 Incremental Loans and the application of the proceeds thereof).
SECTION 6. REAFFIRMATION.
(a) To induce the 2024 Extending Term Lenders, the 2024 Incremental Lender and Administrative Agent to enter into this Ninth Amendment, each of the Loan Parties hereby acknowledges and reaffirms its obligations under each Loan Document to which it is a party, including, without limitation, any grant, pledge or collateral assignment of a lien or security interest, as applicable, contained therein, in each case, as amended, restated, supplemented or otherwise modified prior to or as of the date hereof (collectively, the “Reaffirmed Documents”). The Borrower acknowledges and agrees that each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect, that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Ninth Amendment.
(b) In furtherance of the foregoing Section 6(a), each Loan Party, in its capacity as a Guarantor under any Guaranty to which it is a party (in such capacity, each a “Reaffirming Loan Guarantor”), reaffirms its guarantee of the Guaranteed Obligations under the terms and conditions of such Guaranty and agrees that such Guaranty remains in full force and effect to the extent set forth in such Guaranty and after giving effect to this Ninth Amendment. Each Reaffirming Loan Guarantor hereby confirms that it consents to the terms of this Ninth Amendment and the Term Credit Agreement and that the principal of, the interest and premium (if any) on, and fees related to, the 2024 Extended Term Loans (including the 2024 Incremental Loans) constitute “Obligations” under the Loan Documents. Each Reaffirming Loan Guarantor hereby (i) confirms that each Loan Document to which it is a party or is otherwise bound will continue to guarantee to the fullest extent possible in accordance with the Loan Documents, the payment and performance of the Guaranteed Obligations, including, without limitation, the payment and performance of all such applicable Guaranteed Obligations that are joint and several obligations of each Guarantor now or hereafter existing;
7
(ii) acknowledges and agrees that its Guaranty and each of the Loan Documents to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Ninth Amendment; and (iii) acknowledges, agrees and warrants for the benefit of the Administrative Agent, each other Agent and each Secured Party that there are no rights of set-off or counterclaim, nor any defenses of any kind, whether legal, equitable or otherwise, that would enable such Reaffirming Loan Guarantor to avoid or delay timely performance of its obligations under the Loan Documents.
(c) In furtherance of the foregoing Section 6(a), each of the Loan Parties that is party to any Collateral Document, in its capacity as a Grantor (as defined in such Collateral Document) under such Collateral Document (in such capacity, each a “Reaffirming Grantor”), hereby acknowledges that it has reviewed and consents to the terms and conditions of this Ninth Amendment and the transactions contemplated hereby, including the extension of credit in the form of the 2024 Extended Term Loans (including the 2024 Incremental Loans). In addition, each Reaffirming Grantor reaffirms the security interests granted by such Reaffirming Grantor under the terms and conditions of the Security Agreement and each other Loan Document (in each case, to the extent a party thereto) to secure the Obligations and agrees that such security interests remain in full force and effect. Each Loan Party hereby confirms that the security interests granted by such Reaffirming Grantor under the terms and conditions of the Loan Documents secure the 2024 Extended Term Loans (including the 2024 Incremental Loans) as part of the Obligations. Each Reaffirming Grantor hereby (i) confirms that each Collateral Document to which it is a party or is otherwise bound and all Collateral encumbered thereby will continue to secure, to the fullest extent possible in accordance with the Collateral Documents, the payment and performance of the Obligations, as the case may be, including, without limitation, the payment and performance of all such applicable Obligations that are joint and several obligations of each Guarantor and Grantor now or hereafter existing, (ii) confirms its respective grant to the Administrative Agent for the benefit of the Secured Parties of the security interest in and continuing Lien on all of such Grantor’s right, title and interest in, to and under all Collateral, in each case, whether now owned or existing or hereafter acquired or arising and wherever located, as collateral security for the prompt and complete payment and performance in full when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all applicable Obligations (including all such Obligations as amended, reaffirmed and/or increased pursuant to this Ninth Amendment), subject to the terms contained in the applicable Loan Documents, and (iii) confirms its respective pledges, grants of security interests and other obligations, as applicable, under and subject to the terms of each of the Collateral Documents to which it is a party.
(d) Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Ninth Amendment, such Guarantor is not required by the terms of the Term Credit Agreement or any other Loan Document to consent to this Ninth Amendment and (ii) nothing in the Term Credit Agreement, this Ninth Amendment or any other Loan Document shall be deemed to require the consent of such Guarantor to any future amendment, consent or waiver of the terms of the Term Credit Agreement.
SECTION 7. CONSENT. The Borrower and the Administrative agent hereby consent to the assignment of any 2024 Incremental Loans to any Lender (other than a Disqualified Institution) which is not an existing Lender or an Approved Fund in respect of an existing Lender, in each case, to the extent disclosed to the Borrower and the Administrative Agent prior to the date hereof. The Borrower hereby consents to the Administrative Agent’s use of the signature page attached hereto as Exhibit B in connection with the assignments to institutions previously disclosed to the Borrower in accordance with the immediately preceding sentence and the Administrative Agent may affix such signature page to each Assignment and Assumption that relates to such assignments.
SECTION 8. POST-CLOSING COVENANT.
8
Within one hundred twenty (120) days of the Ninth Amendment Closing Date, unless waived or extended by the Administrative Agent in its sole discretion, the Administrative Agent shall have received either the items listed in the following clause (a) or the items listed in the following clause (b) with respect to any existing Mortgaged Property located in the United States:
(a) written confirmation from local counsel to the applicable Loan Party and the title insurance company confirming that no mortgage amendment, title datedown endorsement or other action is required to such Mortgage in connection with this Ninth Amendment in order to ensure and insure the continued validity, perfection and priority of the Liens and security interests granted to the Administrative Agent under such Mortgage and insured by the title insurance company for the benefit of the Administrative Agent to secure the payment of the Secured Obligations (as defined in such Mortgage), as amended by this Ninth Amendment (it being understood that such confirmation shall be in form and substance reasonably acceptable to the Administrative Agent); together with a title search to the applicable Mortgaged Property demonstrating that such Mortgaged Property is free and clear of all Liens, except Permitted Liens; or
(b) (i) an amendment to each Mortgage encumbering Mortgaged Property (each a “Mortgage Amendment”) duly executed and acknowledged by the applicable Loan Party, and in form for recording in the recording office where each Mortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Administrative Agent and otherwise approved by the applicable local counsel for filing in the appropriate jurisdiction;
| (ii) | with respect to each Mortgage Amendment, a datedown endorsement to the existing mortgage title insurance policies (each, a “Mortgage Policy,” collectively, the “Mortgage Policies”) relating to the Mortgage encumbering the Mortgaged Property subject to such Mortgage insuring the Administrative Agent that such Mortgage, as amended by such Mortgage Amendment is a valid and enforceable lien on such Mortgaged Property in favor of the Administrative Agent for the benefit of the Secured Parties free and clear of all defects, encumbrances and liens except for Permitted Liens, and such Mortgage Policy shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent; |
| (iii) | with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including without limitation, a so-called “gap” indemnification) as shall be required to induce the title company to issue the Mortgage Policies; |
| (iv) | evidence acceptable to the Administrative Agent of payment by the Borrower of all applicable title insurance premiums, search and examination and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgage Amendments and the issuance of the Mortgage Policies. |
SECTION 9. MISCELLANEOUS PROVISIONS.
(a) Ratification. This Ninth Amendment is limited to the matters specified herein and shall not constitute a modification, acceptance or waiver of any other provision of the Term Credit Agreement or any other Loan Document. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Term Credit Agreement or any other Loan Document or instruments securing the same, which shall remain in full force and effect as modified hereby or by instruments executed concurrently herewith.
9
(b) Governing Law; Submission to Jurisdiction, Etc. This Ninth Amendment shall be governed by, and construed in accordance with, the law of the State of New York. Sections 10.15(b) and 10.16 of the Term Credit Agreement are incorporated by reference herein as if such Sections appeared herein, mutatis mutandis.
(c) Severability. Section 10.14 of the Term Credit Agreement is incorporated by reference herein as if such Section appeared herein, mutatis mutandis.
(d) Counterparts; Headings. This Ninth Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier, .pdf or other electronic imaging means of an executed counterpart of a signature page to this Ninth Amendment shall be effective as delivery of an original executed counterpart of this Ninth Amendment. The Administrative Agent may also require that signatures delivered by telecopier, .pdf or other electronic imaging means be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of this Ninth Amendment or signature delivered by telecopier, .pdf or other electronic imaging means. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Ninth Amendment.
[Remainder of page intentionally blank; signatures begin next page]
10
IN WITNESS WHEREOF, the parties hereto have caused their duly Responsible Officers to execute and deliver this Ninth Amendment as of the date first above written.
| BOMBARDIER RECREATIONAL PRODUCTS INC. | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx | ||||
| Title: Authorized Person | ||||
| By: | /s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx | ||||
| Title: Authorized Person | ||||
| BRP INC. | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx | ||||
| Title: Authorized Person | ||||
| By: | /s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx | ||||
| Title: Authorized Person | ||||
[BRP – Signature Page to Ninth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2024)]
| BRP R&D SERVICES INC. | ||||
| By: |
/s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: |
/s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
| BRP US INC. | ||||
| By: |
/s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: |
/s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
| BRP US MANAGEMENT SERVICES, INC. | ||||
| By: |
/s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: |
/s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
| BRP QUERETARO S.A. DE C.V. | ||||
| By: |
/s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: |
/s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
[BRP – Signature Page to Ninth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2024)]
| BRP MEXICO S.A. DE C.V. | ||||
| By: |
/s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: |
/s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
| BRP MEXICAN DISTRIBUTION S.A. DE C.V. | ||||
| By: |
/s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: |
/s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
| BRP MARINE US INC. | ||||
| By: |
/s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: |
/s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
| BRP LOGISTICS N.A. INC. / BRP LOGISTIQUE N.A. INC. | ||||
| By: |
/s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: |
/s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
[BRP – Signature Page to Ninth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2024)]
| BRP LOGISTICS MANAGEMENT ULC | ||||
| By: |
/s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: |
/s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
[BRP – Signature Page to Ninth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2024)]
| BRP GLOBAL DISTRIBUTION INC. | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: | /s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
| BRP MEGATECH INDUSTRIES INC. | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: | /s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
| BRP US SERVICES LLC | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx |
|||
| Name: Xxxxxx Xxxxxxxxx |
||||
| Title: Authorized Person |
||||
| By: | /s/ Xxxxxxxxx Xxxxxx |
|||
| Name: Xxxxxxxxx Xxxxxx |
||||
| Title: Authorized Person |
||||
[BRP – Signature Page to Ninth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2024)]
| BRP CHIHUAHUA S.A. DE C.V. | ||
| By: |
/s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Authorized Person | ||
| By: |
/s/ Xxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Authorized Person | ||
[BRP – Signature Page to Ninth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2024)]
| BANK OF MONTREAL, as Administrative Agent | ||||
| By: |
/s/ Xxxxx Xxxxxx |
| ||
| Name: Xxxxx Xxxxxx |
||||
| Title: Managing Director |
||||
[BRP – Signature Page to Ninth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2024)]
** SIGNATURE PAGES FOR 2024 EXTENDING TERM LENDERS ARE ON FILE WITH THE ADMINISTRATIVE AGENT.
[BRP – Signature Page to Ninth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2024)]
| BANK OF MONTREAL, as the 2024 Incremental Lender | ||||
| By: |
/s/ Xxxxx Xxxxxx |
| ||
| Name: Xxxxx Xxxxxx |
||||
| Title: Managing Director |
||||
[BRP – Signature Page to Ninth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2024)]
SCHEDULE 1
| 2024 Incremental Lender |
2024 Incremental Commitment | |
| Bank of Montreal |
$45,861,735.18 | |
|
Total: |
$45,861,735.18 | |
EXHIBIT A
Amended Credit Agreement
[Attached.]
EXHIBIT B
Borrower Signature Page to Assignment and Assumption
[Attached.]
