SIXTH AMENDMENT TO FOURTH AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
Exhibit 99.5
SIXTH AMENDMENT TO
FOURTH AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
SIXTH AMENDMENT TO FOURTH AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT (this “Sixth Amendment”), dated as of December 13, 2022, 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 other 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 2022-2 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 “2022-2 Incremental Lender”) make Incremental Loans to the Borrower on the Sixth Incremental Facility Closing Date (as defined below) in an aggregate principal amount of $500,000,000 (the “2022-2 Incremental Loans” and the Incremental Commitments under this Sixth Amendment of the 2022-2 Incremental Lender with respect to the 2022-2 Incremental Loans, the “2022-2 Incremental Commitments”), which will be used by the Borrower (i) to pay the fees and expenses related to this Sixth Amendment and the incurrence of the 2022-2 Incremental Loans, (ii) to fund the 2022 Refinancing (as defined below), (iii) to refinance all or a part of the outstanding Revolving Loans and (iv) for other general corporate purposes, including working capital needs, the making of Investments and/or the repayment of Indebtedness;
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 2022 Incremental Loans, substantially concurrently with the consummation of the transactions contemplated herein, with the proceeds of the 2022-2 Incremental Loans (“2022 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 2022-2 Incremental Loans and (y) this Sixth Amendment shall constitute an Incremental Amendment;
WHEREAS, the 2022-2 Incremental Lender is prepared to provide the 2022-2 Incremental Loans in an amount equal to its 2022-2 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 (“RBC”) and Citigroup Global Markets Inc. (“Citi”) to act as joint lead arrangers, (ii) RBC, Citi, BMO Capital Markets Corp., and TD Securities to act as joint bookrunners and (iii) Canadian Imperial Bank of Commerce and National Bank of Canada Financial Inc. as co-arrangers (with RBC to have “left” placement in any and all marketing materials and have the leading roles and responsibilities conventionally associated with such “left” placement) in connection with the Sixth 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 Sixth Amendment, including the terms defined in the preamble and recitals hereto.
SECTION 2. 2022-2 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 Sixth Incremental Facility Closing Date:
(a) The 2022-2 Incremental Lender hereby agrees to provide to the Borrower its 2022-2 Incremental Commitment set forth opposite its name under the heading “2022-2 Incremental Commitment” on Schedule 1 to this Sixth Amendment. The full amount of the 2022-2 Incremental Loans shall be drawn by the Borrower in a single drawing on the Sixth Incremental Facility Closing Date and amounts paid or prepaid in respect of the 2022-2 Incremental Loans may not be reborrowed.
(b) The 2022-2 Incremental Lender, the Administrative Agent and the Loan Parties party hereto agree that this Sixth 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 2022-2 Incremental Loans on the Sixth Incremental Facility Closing Date, (i) the 2022-2 Incremental Loans shall constitute a separate Class of Loans from each other then outstanding Class of Loans and (ii) the 2022-2 Incremental Loans shall be secured by identical collateral and guarantied on identical terms as the other Classes of Loans outstanding on the Sixth Incremental Facility Closing Date.
(d) The 2022-2 Incremental Commitment of the 2022-2 Incremental Lender shall automatically terminate upon the funding of the 2022-2 Incremental Loans on the Sixth Incremental Facility Closing Date.
(e) The proceeds of the 2022-2 Incremental Loans shall be used by the Borrower (i) to pay the fees and expenses related to this Sixth Amendment and the incurrence of the 2022-2 Incremental Loans, (ii) to fund the 2022 Refinancing, (iii) to refinance all or a part of the outstanding Revolving Loans and (iv) for other general corporate purposes.
(f) The Borrower hereby designates that the full principal amount of 2022-2 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
2022-2 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 to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example:
double-underlined text) as set forth in the pages of the
Credit Agreement attached as Exhibit A hereto.
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SECTION 4. REFERENCE TO AND EFFECT ON THE TERM CREDIT AGREEMENT. On and after the Sixth 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 Sixth Amendment, (ii) the 2022-2 Incremental Loans shall constitute “Loans”, “Term Loans” and “Incremental Loans”, in each case, under and as defined in the Term Credit Agreement, (iii) each 2022-2 Incremental Lender shall 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 2022-2 Incremental Commitments shall constitute, “Commitments” and “Incremental Commitments”, in each case, under and as defined in the Term Credit Agreement, (v) the Sixth Incremental Facility Closing Date shall constitute the “Incremental Facility Closing Date” under and as defined in the Term Credit Agreement with respect to the 2022-2 Incremental Loans and (vi) this Sixth Amendment shall constitute an “Incremental Amendment” under and as defined in the Term Credit Agreement. On and after the effectiveness of this Sixth Amendment, this Sixth 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 2022-2 Incremental Lender and the Administrative Agent to enter into this Sixth Amendment and to induce the 2022-2 Incremental Lender to make the 2022-2 Incremental Loans hereunder, each Loan Party hereby represents and warrants to the 2022-2 Incremental Lender and the Administrative Agent on and as of the Sixth Incremental Facility Closing Date, that:
(a) The execution, delivery and performance by such Loan Party of this Sixth 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 Sixth Amendment and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance by it of this Sixth Amendment. Each Loan Party has duly executed and delivered this Sixth Amendment, and this Sixth 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.
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(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 Sixth 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 2022-2 Incremental Loans will be used for the purposes set forth in Section 2(e) hereof.
SECTION 6. CONDITIONS PRECEDENT. This Sixth Amendment shall become effective as of the first date (the “Sixth 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 Sixth Amendment from each Loan Party named on the signature pages hereto, the Administrative Agent and the 2022-2 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 or any other written agreement between the Borrower and the 2022-2 Incremental Lender and otherwise invoiced prior to the Sixth Incremental Facility Closing Date, (b) fees and expenses incurred by or on behalf of the 2022-2 Incremental Lender in connection with the funding of the 2022-2 Incremental Loans in the amounts agreed between the 2022-2 Incremental Lender and the Borrower, shall be due and payable on the Sixth Incremental Facility Closing Date to the extent, in the case of expenses, invoiced at least three (3) business days prior to the Sixth 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 Xxxxxx Xxxx Xxxxxxxx & Xxxxxxxx LLP, in each case, as counsel to the 2022-2 Incremental Lender) and (c) an upfront fee shall have been paid to each 2022-2 Incremental Lender in an amount equal to 2.50% of the aggregate principal amount of the 2022 Incremental Loans funded by such 2022-2 Incremental Lender on the Sixth Amendment Effective Date.
(iii) Both immediately before and after giving effect to this Sixth Amendment, (a) no Default or Event of Default shall have occurred or be continuing and (b) all representations and warranties contained in this Sixth 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 Sixth 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 2022-2 Incremental Loans for which internal financial statements are available (as determined in good faith by the Borrower), as if all such 2022-2 Incremental Loans had been incurred on the last day of such Test Period.
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(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 2022-2 Incremental Loans.
(vi) The Administrative Agent shall have received an officer’s certificate of the Borrower, dated the Sixth 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.
(vii) On the Sixth Incremental Facility 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, 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 2022-2 Incremental Lender and (iii) dated the Sixth Incremental Facility Closing Date.
(viii) The Administrative Agent shall have received a customary certificate from each Loan Party, dated the Sixth 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 Sixth 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 Sixth 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).
(ix) 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 Sixth Incremental Facility Closing Date certifying that the Borrower and its Restricted Subsidiaries are Solvent (after giving effect to the incurrence of the 2022-2 Incremental Loans and the application of the proceeds thereof).
(x) 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 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.
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SECTION 7. REAFFIRMATION.
(a) To induce the 2022-2 Incremental Lender and Administrative Agent to enter into this Sixth 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 Sixth 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 Sixth Amendment. Each Reaffirming Loan Guarantor hereby confirms that it consents to the terms of this Sixth Amendment and the Term Credit Agreement and that the principal of, the interest and premium (if any) on, and fees related to, the 2022-2 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 Sixth 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 Sixth Amendment and the transactions contemplated hereby, including the extension of credit in the form of the 2022-2 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 2022-2 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,
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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 Sixth 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 Sixth Amendment, such Guarantor is not required by the terms of the Term Credit Agreement or any other Loan Document to consent to this Sixth Amendment and (ii) nothing in the Term Credit Agreement, this Sixth 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 2022-2 Incremental Loans to any Lender (other than a Disqualified Institution) which is not an existing Lender, an Affiliate of 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 9. POST-CLOSING COVENANT.
Within one hundred twenty (120) days of the Sixth Incremental Facility 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 Sixth 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 Sixth 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; |
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| (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 10. MISCELLANEOUS PROVISIONS.
(a) Ratification. This Sixth 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 Sixth 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 Sixth 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 Sixth Amendment shall be effective as delivery of an original executed counterpart of this Sixth 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 Sixth 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 Sixth Amendment.
[Remainder of page intentionally blank; signatures begin next page]
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IN WITNESS WHEREOF, the parties hereto have caused their duly Responsible Officers to execute and deliver this Sixth 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 Sixth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2022)]
| 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 Sixth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2022)]
| 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 Sixth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2022)]
| 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 N.A. INC. | ||
| 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 Sixth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2022)]
| BANK OF MONTREAL, as Administrative Agent | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| Title: Director | ||
[BRP – Signature Page to Sixth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2022)]
| ROYAL BANK OF CANADA, as the 2022-2 Incremental Lender | ||
| By: | /s/ Xxxxxx xxx Xxxxxx | |
| Name: Xxxxxx xxx Xxxxxx | ||
| Title: Authorized Signatory | ||
[BRP – Signature Page to Sixth Amendment to Fourth Amended and Restated Term Loan Credit Agreement (2022)]
SCHEDULE 1
| 2022-2 Incremental Lender |
2022-2 Incremental Commitment | |||
| Royal Bank of Canada |
$ | 500,000,000 | ||
| Total: |
$ | 500,000,000 | ||
EXHIBIT A
Amended Credit Agreement
[Attached.]
EXHIBIT B
Borrower’s Signature Page
[Attached.]
