FOURTH AMENDMENT TO FOURTH AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
Exhibit 99.5
FOURTH AMENDMENT TO
FOURTH AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
FOURTH AMENDMENT TO FOURTH AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT (this “Fourth Amendment”), dated as of February 16, 2021, 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”), and the 2021 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 Lenders party thereto from time to time, 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 Section 2.14 of the Term Credit Agreement, the Borrower has delivered an Incremental Loan Request to the Administrative Agent requesting that Royal Bank of Canada (the “2021 Incremental Lender”) make Incremental Loans to the Borrower on the Fourth Incremental Facility Closing Date (as defined below) in an aggregate principal amount of $300,000,000 (the “2021 Incremental Loans” and the Incremental Commitments under this Fourth Amendment of the 2021 Incremental Lender with respect to the 2021 Incremental Loans, the “2021 Incremental Commitments”), which will be used by the Borrower (i) to pay the fees and expenses related to this Fourth Amendment and the incurrence of the 2021 Incremental Loans and (ii) to fund the 2021 Refinancing (as defined below);
WHEREAS, the Borrower has delivered a notice to the Administrative Agent (the “Prepayment Notice”) to voluntarily prepay the principal, accrued and unpaid interest and premium under all outstanding 2020 Incremental Term Loans, substantially concurrently with the consummation of the transactions contemplated herein, with the proceeds of the 2021 Incremental Loans and cash on hand at the Borrower and its subsidiaries (“2021 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 6 hereof, to amend certain terms of the Term Credit Agreement as hereinafter provided to give effect to the incurrence of the 2021 Incremental Loans and (y) this Fourth Amendment shall constitute an Incremental Amendment;
WHEREAS, the 2021 Incremental Lender is prepared to provide the 2021 Incremental Loans in an amount equal to its 2021 Incremental Commitment set forth on Schedule 1 hereto subject to the terms and conditions set forth herein;
WHEREAS, the Borrower hereby appoints (i) RBC Capital Markets, LLC and Citibank, N.A. to act as joint lead arrangers and joint bookrunners (with RBC Capital Markets, LLC to have “left” placement in any and all marketing materials and have the leading roles and responsibilities conventionally associated with such “left” placement) and (ii) BMO Capital Markets Corp. and TD Securities (US) LLC to
act as joint lead bookrunners, in connection with this Fourth Amendment and the transactions contemplated hereby; and
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 Fourth Amendment, including the terms defined in the preamble and recitals hereto. | |||
| SECTION 2. | 2021 INCREMENTAL LOANS. | |||
Pursuant to Section 2.14 of the Term Credit Agreement, and subject solely to the satisfaction of the conditions precedent set forth in such Section 2.14 and Section 6 hereof and in reliance on the representations and warranties set forth herein, on and as of the Fourth Incremental Facility Closing Date:
(a) The 2021 Incremental Lender hereby agrees to provide to the Borrower its 2021 Incremental Commitment set forth opposite its name under the heading “2021 Incremental Commitment” on Schedule 1 to this Fourth Amendment. The full amount of the 2021 Incremental Loans shall be drawn by the Borrower in a single drawing on the Fourth Incremental Facility Closing Date and amounts paid or prepaid in respect of the 2021 Incremental Loans may not be reborrowed. The 2021 Incremental Loans (x) shall be made pursuant to (and form part of) the existing Class of 2020 Replacement 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 2020 Replacement Term Loans as set forth in the Credit Agreement (as amended by this Fourth Amendment). The 2021 Incremental Term Loans shall be subject to scheduled amortization set forth in the Credit Agreement (as amended by this Fourth Amendment) and with the remaining outstanding principal amount due and payable in full on the Maturity Date for the existing 2020 Replacement Term Loans.
(b) The 2021 Incremental Lender, the Administrative Agent and the Loan Parties party hereto agree that this Fourth Amendment shall constitute an Incremental Amendment pursuant to and in accordance with Section 2.14(f) of the Term Credit Agreement.
(c) Immediately upon the incurrence of the 2021 Incremental Loans on the Fourth Incremental Facility Closing Date, (i) the 2021 Incremental Term Loans shall be added to (and form part of) each Borrowing of existing 2020 Replacement Term Loans outstanding under the Credit Agreement immediately prior to the effectiveness of this Fourth Amendment on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender with outstanding 2020 Replacement Term Loans (including each 2021 Incremental Lender with outstanding 2021 Incremental Loans) will participate proportionately in each then outstanding Borrowing of 2020 Replacement Term Loans with the same Interest Period as the existing 2020 Replacement Term Loans, (ii) the 2021 Incremental Term Loans shall constitute a single Class of Term Loans with the 2020 Replacement Term Loans (and shall be fully fungible with the existing 2020 Replacement Term Loans), (iii) the 2021 Incremental Term Loans shall constitute “2020 Replacement Term Loans” for all purposes under, and subject to the provisions of, the Loan Documents, and (iv) the 2021 Incremental Term Loans shall be secured by the same Collateral and guarantied on identical terms as the existing 2020 Replacement Term Loans in each case pursuant to the respective Loan Documents.
(d) The 2021 Incremental Commitment of the 2021 Incremental Lender shall automatically terminate upon the funding of the 2021 Incremental Loans on the Fourth Incremental Facility Closing Date.
2
(e) The proceeds of the 2021 Incremental Loans shall be used by the Borrower, together with cash on hand at the Borrower and its Subsidiaries, (i) to pay the fees and expenses related to this Fourth Amendment and the incurrence of the 2021 Incremental Loans and (ii) to fund the 2021 Refinancing.
(f) The Borrower hereby designates that the full principal amount of 2021 Incremental Loans is being incurred in reliance on clause (d)(iii)(A) of Section 2.14 of the Term Credit Agreement.
| SECTION 3. |
AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction (or waiver in writing by | |||||
| the 2021 Incremental Lender and the Administrative Agent) of the conditions set forth in Section 6 hereof, in accordance with Sections 2.14(e) and (f) of the Term Credit Agreement, the Term Credit Agreement is hereby amended as follows: | ||||||
(a) Section 1.01 of the Term Credit Agreement is hereby amended by adding in the appropriate alphabetical order the following new definitions:
“2021 Incremental Commitment” has the meaning specified in the Fourth Amendment.
“2021 Incremental Lender” has the meaning specified in the Fourth Amendment.
“2021 Incremental Loans” has the meaning specified in the Fourth Amendment.
“Fourth Amendment” means that certain Fourth Amendment to Fourth Amended and Restated Term Loan Credit Agreement, dated as of February 16, 2021, among Holdings, the Borrower, the Guarantors party thereto, the Administrative Agent and the 2021 Incremental Lender party thereto.
“Fourth Incremental Facility Closing Date” has the meaning specified in the Fourth Amendment.
(b) The definition of “Loan Documents” in Section 1.01 of the Term Credit Agreement is hereby amended by amending and restating said definition in its entirety as follows:
““Loan Documents” means, collectively, (i) this Agreement and the Restatement Agreement, (ii) the Notes, (iii) the Collateral Documents, (iv) the Intercreditor Agreements, (v) any Refinancing Amendment, Incremental Amendment or Extension Amendment, (vi) any other document or instrument designated by the Borrower and the Administrative Agent as a “Loan Document”, (vii) the First Amendment, (viii) the Second Amendment, (ix) the Third Amendment, (x) the Fourth Amendment and (xi) any other amendment or joinder to this Agreement; provided, that no Swap Contract or Secured Hedge Agreement shall be a Loan Document.”
(c) The definition of “Term Loans” in Section 1.01 of the Term Credit Agreement is hereby amended by amending and restating said definition in its entirety as follows:
“Term Loans” means any Term B Loan, 2020 Replacement Term Loan, Incremental Loan (including, for the avoidance of doubt, 2019 Incremental Loans, 2020 Incremental Loans and 2021 Incremental Loans), Refinancing Loan or Extended Term Loan, as the context may require.
(d) Section 2.01(a)(i) of the Term Credit Agreement is hereby amended and restated in its entirety as follows:
“(i) (u) On the Closing Date, pursuant to the Restatement Agreement (whether by way of exchange of existing extensions of credit under the Existing Credit Agreement or by way of new extensions of credit) each Term Lender severally agrees to make Term B Loans available to the
3
Borrower on the Closing Date in accordance with the Commitment of such Term Lender, (w) upon the terms and subject to the conditions set forth in the First Amendment, each 2019 Incremental Lender severally agrees to make 2019 Incremental Loans in Dollars to the Borrower on the First Incremental Facility Closing Date in an aggregate amount not to exceed the amount of such 2019 Incremental Lender’s 2019 Incremental Commitment, (x) subject to the terms and conditions set forth in the Second Amendment and this Agreement (as amended thereby), (1) each New 2020 Replacement Term Loan Lender severally agrees to make to the Borrower on the Second Amendment Closing Date New 2020 Replacement Term Loans in an aggregate amount not to exceed the amount of such New 2020 Replacement Term Loan Lender’s 2020 Replacement Term Loan Commitment, (2) each 2020 Converting Term Lender severally agrees, that, pursuant to the 2020 Replacement Term Loan Conversion, without any further action by any party to this Agreement, the portion of such 2020 Converting Term Lender’s Term B Loans equal to such 2020 Converting Term Lender’s 2020 Replacement Term Loan Conversion Amount shall automatically be converted into 2020 Replacement Term Loans in a like principal amount on the Second Amendment Closing Date and (3) each 2020 Converting Incremental Lender severally agrees, that, pursuant to the 2020 Replacement Incremental Loan Conversion, without any further action by any party to this Agreement, the portion of such 2020 Converting Incremental Lender’s 2019 Incremental Loans equal to such 2020 Converting Incremental Lender’s 2020 Replacement Incremental Loan Conversion Amount shall automatically be converted into 2020 Replacement Incremental Loans in a like principal amount on the Second Amendment Closing Date (such term loans made by the New 2020 Replacement Term Loan Lenders, the 2020 Converting Term Lenders and the 2020 Converting Incremental Lenders, collectively, the “2020 Replacement Term Loans”), (y) upon the terms and subject to the conditions set forth in the Third Amendment, each 2020 Incremental Lender severally agrees to make 2020 Incremental Loans in Dollars to the Borrower on the Third Incremental Facility Closing Date in an aggregate amount not to exceed the amount of such 2020 Incremental Lender’s 2020 Incremental Commitment and (z) upon the terms and subject to the conditions set forth in the Fourth Amendment, each 2021 Incremental Lender severally agrees to make 2021 Incremental Loans in Dollars to the Borrower on the Fourth Incremental Facility Closing Date in an aggregate amount not to exceed the amount of such 2021 Incremental Lender’s 2021 Incremental Commitment. No costs shall be payable under Section 3.05 in connection with the transactions consummated under this Section 2.01.”
(e) Section 2.02(a) of the Term Credit Agreement is hereby amended and restated in its entirety as follows:
“Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice, on behalf of the Borrower, to the Administrative Agent (provided that the notices in respect of the initial Credit Extension may be conditioned on the closing of the Restatement), which may be given by telephone. Each such notice must be received by the Administrative Agent not later than (1) 2:00 p.m. three (3) Business Days (or, in the case of (x) the 2019 Incremental Loans funded on the First Incremental Facility Closing Date, (y) the 2020 Incremental Loans funded on the Third Incremental Facility Closing Date or (z) the 2021 Incremental Loans funded on the Fourth Incremental Facility Closing Date, in each case, not later than 12:00 p.m. one (1) Business Day) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans or any conversion of Base Rate Loans to Eurocurrency Rate Loans, and (2) 12:00 noon on the requested date of any Borrowing of Base Rate Loans or any conversion of Eurocurrency Rate Loans to Base Rate Loans; provided that the notice referred to in subclause (1) above may be delivered one (1) Business Day prior to the Closing Date in the case of the initial Credit Extension. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Except as provided in Section 2.14, each Borrowing of, conversion to or continuation of
4
Eurocurrency Rate Loans shall be in a minimum principal amount of $500,000, or a whole multiple of $50,000 in excess thereof. Except as provided in Section 2.14, each Borrowing of or conversion to Base Rate Loans shall be in a minimum principal amount of $100,000 or a whole multiple of $50,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the requesting Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the Dollar Amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) wire instructions of the account(s) to which funds are to be disbursed (it being understood, for the avoidance of doubt, that the amount to be disbursed to any particular account may be less than the minimum or multiple limitations set forth above so long as the aggregate amount to be disbursed to all such accounts pursuant to such Borrowing meets such minimums and multiples). If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.”
(f) Section 2.06 of the Term Credit Agreement is hereby amended by inserting the following new subsection (f) at the end thereof:
“(f) 2021 Incremental Commitments. The 2021 Incremental Commitments of the 2021 Incremental Lender shall be automatically and permanently reduced to $0 upon the funding of the 2021 Incremental Loans to be made by it on the Fourth Incremental Facility Closing Date.”
(g) Section 2.07 of the Term Credit Agreement is hereby amended and restated in its entirety as follows:
“(a) The Borrower shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders (A) on the last Business Day of each April, July, October and January, commencing with April 30, 2021, an aggregate principal amount of 2020 Replacement Term Loans equal to $3,807,138.30 (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Sections 2.05 and 10.07), and (B) on the Maturity Date for any Class of Term Loans, the aggregate principal amount of all Term Loans of such Class outstanding on such date.
(b) Other than with respect to any 2020 Incremental Loans, the amount of any such payment set forth in clause (a) above shall be adjusted to account for the addition of any Incremental Loans, Extended Term Loans or Refinancing Loans to contemplate (A) the reduction in the aggregate principal amount of any Term Loans that were paid down in connection with the incurrence of such Incremental Loans, Extended Term Loans or Refinancing Loans, and (B) any increase to payments to the extent and as required pursuant to the terms of any applicable Incremental Amendment, Extension Amendment or Refinancing Amendment.”
(h) Section 6.16 of the Term Credit Agreement is hereby amended by inserting the following new sentence at the end thereof:
5
“Use the proceeds of any 2021 Incremental Loans incurred on the Fourth Incremental Facility Closing Date (i) to pay the fees and expenses related to the Fourth Amendment and the incurrence of the 2021 Incremental Loans and (ii) to fund the 2021 Refinancing (as defined in the Fourth Amendment).”
| SECTION 4. | REFERENCE TO AND EFFECT ON THE TERM CREDIT AGREEMENT. On and after the | |||||
| Fourth Incremental Facility 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 Fourth Amendment, (ii) the 2021 Incremental Loans shall constitute “Loans”, “Term Loans”, “2020 Replacement Term Loans” and “Incremental Loans”, in each case, under and as defined in the Term Credit Agreement, (iii) the 2021 Incremental Lender shall each constitute a “Lender”, a “Term Lender” and “Incremental Lender”, (other than for purposes of Section 2.01(a)(i) of the Term Credit Agreement), in each case, under and as defined in the Term Credit Agreement, (iv) the 2021 Incremental Commitments shall constitute, “Commitments” and “Incremental Commitments”, in each case, under and as defined in the Term Credit Agreement, (v) the Fourth Incremental Facility Closing Date shall constitute the “Incremental Facility Closing Date” under and as defined in the Term Credit Agreement with respect to the 2021 Incremental Loans and (vi) this Fourth Amendment shall constitute an “Incremental Amendment” under and as defined in the Term Credit Agreement. On and after the effectiveness of this Fourth Amendment, this Fourth Amendment shall for all purposes constitute a “Loan Document” under and as defined in the Term Credit Agreement and the other Loan Documents. | ||||||
| SECTION 5. | REPRESENTATIONS & WARRANTIES. In order to induce the 2021 Incremental Lender and the | |||||
| Administrative Agent to enter into this Fourth Amendment and to induce the 2021 Incremental Lender to make the 2021 Incremental Loans hereunder, each Loan Party hereby represents and warrants to the 2021 Incremental Lender and the Administrative Agent on and as of the Fourth Incremental Facility Closing Date, that: | ||||||
(a) The execution, delivery and performance by such Loan Party of this Fourth 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 Fourth Amendment and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance by it of this Fourth Amendment. Each Loan Party has duly executed and delivered this Fourth Amendment, and this Fourth 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.
6
(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 Fourth Incremental Facility 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 2021 Incremental Loans will be used for the purposes set forth in Section 2(e) hereof.
SECTION 6. CONDITIONS PRECEDENT. This Fourth Amendment shall become effective as of the first date (the “Fourth Incremental Facility Closing Date”) when each of the conditions set forth in this Section 6 shall have been satisfied:
(i) The Administrative Agent shall have received a duly authorized, executed and delivered counterpart of the signature page to this Fourth Amendment from each Loan Party named on the signature pages hereto, the Administrative Agent and the 2021 Incremental Lender.
(ii) (a) 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 otherwise invoiced prior to the Fourth Incremental Facility Closing Date and (b) fees and expenses incurred by or on behalf of the 2021 Incremental Lender in connection with the funding of the 2021 Incremental Loans in the amounts agreed between the 2021 Incremental Lender and the Borrower, shall be due and payable on the Fourth Incremental Facility Closing Date to the extent, in the case of expenses, invoiced at least three (3) business days prior to the Fourth Incremental Facility 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 Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, in each case, as counsel to the 2021 Incremental Lender).
(iii) Both immediately before and after giving effect to this Fourth Amendment, (a) no Default or Event of Default shall have occurred or be continuing and (b) all representations and warranties contained in this Fourth 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).
(iv) After giving effect to the making of all Incremental Loans on such date, the Borrower’s Secured Net Leverage Ratio shall not exceed 3.75:1.00 on the Fourth Incremental Facility 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 2021 Incremental Loans for which internal financial statements are available (as determined in good faith by the Borrower), as if all such 2021 Incremental Loans had been incurred on the last day of such Test Period.
7
(v) 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 2021 Incremental Loans.
(vi) 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 the 2020 Incremental Loans.
(vii) The Administrative Agent shall have received an officer’s certificate of the Borrower, dated the Fourth Incremental Facility 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 (iii) and (iv) of this Section 6 and Section 2.14(d)(iii) of the Term Credit Agreement.
(viii) On the Fourth Incremental Facility Closing Date, the Administrative Agent shall have received a customary opinion of Ropes & Xxxx LLP, U.S. counsel to the Loan Parties and Stikeman Elliott, Canadian counsel to the Loan Parties and Xxxxxxx XxXxxxxx, as Nova Scotia 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 and the 2021 Incremental Lender and (iii) dated the Fourth Incremental Facility Closing Date.
(ix) The Administrative Agent shall have received a customary certificate from each Loan Party, dated the Fourth Incremental Facility 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 (a) certified copies of the certificate or articles of incorporation and by-laws (or other equivalent organizational documents), as applicable, of such Loan Party, (b) customary resolutions of such Loan Party referred to in such certificate, (c) incumbency or specimen signatures which identify by name and title the Responsible Officer or authorized signatory of such Loan Party authorized to sign this Fourth Amendment, and (d) 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 Fourth Incremental Facility 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 (a), 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).
(x) 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 Fourth Incremental Facility Closing Date certifying that the Borrower and its Restricted Subsidiaries are Solvent (after giving effect to the incurrence of the 2021 Incremental Loans and the application of the proceeds thereof).
(xi) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Property located in the United States as of the date hereof (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the
8
Borrower and the applicable Loan Party relating thereto) and, if any such Mortgaged Property is located in a special flood hazard area, evidence of flood insurance to the extent required pursuant to the Credit Agreement.
SECTION 7. REAFFIRMATION.
(a) To induce the 2021 Incremental Lender and Administrative Agent to enter into this Fourth 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 Fourth Amendment.
(b) In furtherance of the foregoing Section 7(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 Fourth Amendment. Each Reaffirming Loan Guarantor hereby confirms that it consents to the terms of this Fourth Amendment and the Term Credit Agreement and that the principal of, the interest and premium (if any) on, and fees related to, the 2021 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; (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 Fourth 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 7(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 Fourth Amendment and the transactions contemplated hereby, including the extension of credit in the form of the 2021 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 2021 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
9
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 Fourth 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 Fourth Amendment, such Guarantor is not required by the terms of the Term Credit Agreement or any other Loan Document to consent to this Fourth Amendment and (ii) nothing in the Term Credit Agreement, this Fourth 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 8. CONSENT. The Borrower and the Administrative agent hereby consent to the assignment of any 2021 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 A 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 9. | POST-CLOSING COVENANT. | |||
Within one hundred twenty (120) days of the Fourth Incremental Facility Closing Date, unless waived or extended by the Administrative Agent in its sole discretion, Section 6.13 of the Credit Agreement shall have been satisfied in connection with this Fourth Amendment.
| SECTION 10. | MISCELLANEOUS PROVISIONS. | |||
(a) Ratification. This Fourth 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.
(b) Governing Law; Submission to Jurisdiction, Etc. This Fourth 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.
10
(d) Counterparts; Headings. This Fourth 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 Fourth Amendment shall be effective as delivery of an original executed counterpart of this Fourth 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 Fourth 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 Fourth Amendment.
[Remainder of page intentionally blank; signatures begin next page]
11
IN WITNESS WHEREOF, the parties hereto have caused their duly Responsible Officers to execute and deliver this Fourth Amendment as of the date first above written.
| BOMBARDIER RECREATIONAL PRODUCTS | ||
| By:/s/ Xxxxxx Xxxxxxxxx | ||
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Authorized Person | ||
| By: |
/s/ Xxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Authorized Person | ||
| By: /s/ Xxxxxx Xxxxxxxxx | ||
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Authorized Person | ||
| By: |
/s/ Xxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Authorized Person | ||
[BRP – Signature Page to Fourth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2021)]
| 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 Fourth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2021)]
| 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 | ||
| ALUMACRAFT HOLDINGS, LLC | ||
| By: |
/s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Authorized Person | ||
| By: |
/s/ Xxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Authorized Person | ||
| ALUMACRAFT BOAT CO. | ||
| By: |
/s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Authorized Person | ||
| By: |
/s/ Xxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Authorized Person | ||
[BRP – Signature Page to Fourth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2021)]
| TRITON INDUSTRIES, 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 | ||
| By: |
/s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Authorized Person | ||
| By: |
/s/ Xxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxx Xxxxxx | ||
| Title: Authorized Person | ||
| 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 Fourth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2021)]
| BANK OF MONTREAL, as Administrative | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Managing Director | ||
[BRP – Signature Page to Fourth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2021)]
| ROYAL BANK OF CANADA, as a 2021 | ||
| By: |
/s/ Xxxxxx Xxx Xxxxxx | |
| Name: Xxxxxx Xxx Xxxxxx | ||
| Title: Authorized Signatory | ||
[BRP – Signature Page to Fourth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2021)]
SCHEDULE 1
|
2021 Incremental Lender
|
2021 Incremental Commitment
| |
|
Royal Bank of Canada
|
$300,000,000
| |
|
Total:
|
$300,000,000
| |
EXHIBIT A
[Attached.]
[BRP – Signature Page to Fourth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2021)]
