Clearwater Paper Corp
false
0001441236
0001441236
2024-05-01
2024-05-01
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 1, 2024
CLEARWATER PAPER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 001-34146 20-3594554
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
601 West Riverside Ave.
,
Suite 1100
Spokane 99201
,
WA
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(509)
344-5900
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the following provisions (see General Instructions A.2. below):
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule
14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading Name of each exchanged
Symbol(s) on which registered
Common Stock, par value $0.0001 per share CLW New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 ((s) 230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 ((s) 240.12b-2
of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act.
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Item 1.01 Entry into a Material Definitive Agreement.
AgWest Credit Agreement
On the Closing Date (as defined below), Clearwater Paper Corporation (the
"Company") entered into an amendment and restatement of its credit agreement,
dated October 27, 2023 by and among the Company, AgWest Farm Credit, PCA, as
administrative agent (the "Agent"), and the lenders party thereto (as amended,
the
"Non-ABL
Credit Agreement").
The credit facility provided under the
Non-ABL
Credit Agreement consists of (i) a term revolver loan commitment in the amount
of $270 million (the "Term Revolver Facility"), $150 million of which was
disbursed on October 27, 2023 and $120 million of which was drawn after giving
effect to the closing of the Transaction (as defined below) (ii) a term loan
commitment in the amount of $400 million (the "Farm Credit Term Loan
Facility"), which was fully drawn after giving effect to the closing of the
Transaction and (iii) a term loan commitment in the amount of $90 million (the
"Commercial Bank Term Loan Facility" and together with the Farm Credit Term
Loan Facility, collectively, the "Term Loan Facilities"), which was fully
drawn after giving effect to the closing of the Transaction. The Company may
also increase commitments under the Term Revolver Facility in an aggregate
principal amount of up to $60 million, subject to obtaining commitments from
any participating lender and certain other conditions. The proceeds from the
Closing Date borrowings under the
Non-ABL
Credit Agreement were used by the Company to finance the Transaction; to pay
fees and expenses in connection with the
Non-ABL
Credit Agreement; and for working capital purposes.
The lending commitment under the Term Revolver Facility is subject to an
annual reduction of 2% of the commitments then in effect. The
Non-ABL
Credit Agreement matures and the lending obligations under the Term Revolver
Facility terminate on the earlier of (i) in the case of the Term Revolver
Facility and the Commercial Bank Term Loan Facility, May 1, 2029, (ii) in the
case of the Farm Credit Term Loan Facility, May 1, 2031 and (iii) and the date
that is 91 days prior to the maturity of the Company's 4.750% senior notes due
2028, unless during such period of time the outstanding principal amount of
such senior notes plus $50 million is less than the sum of the Company's
available borrowing liquidity and unrestricted cash. The obligations of the
Company under the
Non-ABL
Credit Agreement are secured by liens on substantially all of the personal
property assets of the Company and each of its domestic subsidiaries that are
guarantors of the
Non-ABL
Credit Agreement.
The Company may, at its option, prepay and reborrow any borrowings under the
Term Revolver Facility, in whole or in part, at any time and from time to time
without premium or penalty (except in certain circumstances). In addition, the
Company must make mandatory prepayments of principal under the Term Revolver
Facility upon the occurrence of certain asset sales (subject to customary
reinvestment rights). Pursuant to the
Non-ABL
Credit Agreement, the Company is required to repay the aggregate outstanding
principal amount of the borrowings under the Term Loan Facilities in quarterly
installments on the last day of each March, June, September and December,
commencing on the first day of the third full fiscal quarter after the Closing
Date, and ending with the last such day to occur prior to the maturity date,
in an aggregate amount equal to (i) in the case of the Farm Credit Term Loan
Facility, $2.0 million on each such payment date and (ii) in the case of the
Commercial Bank Term Loan Facility, in an amount equal to (x) $562.5 thousand
for any such payment date occurring on or prior to the first anniversary of
the Closing Date, (y) $1.125 million for any such payment date occurring after
the first anniversary of the Closing Date and on or prior to the fourth
anniversary of the Closing Date and (z) $1.6875 million for any such payment
date occurring after the fourth anniversary of the Closing Date. The Company
may, at its option, prepay any borrowings under the Term Loan Facilities, in
whole or in part, at any time and from time to time without premium or
penalty. In addition, the Company must make mandatory prepayments of principal
under the Term Loan Facilities upon the occurrence of certain specified
events, including certain asset sales (subject to customary reinvestment
rights), debt issuances not permitted under the
Non-ABL
Credit Agreement, and of 50% of its quarterly excess cash flows, less any
voluntary prepayments of the Term Loan Facilities. Amounts repaid or prepaid
by the Company with respect to the Term Loan Facilities cannot be reborrowed.
Any remaining outstanding principal balance under the
Non-ABL
Credit Agreement is repayable on the maturity date.
Under the Term Revolver Facility and the Farm Credit Term Loan Facility, loans
generally may bear interest based on SOFR or the Agent's fixed rate, as
applicable, plus, in each case, an applicable margin that (i) prior to
repayment in full of the Term Loan Facilities, may vary between 2.25% per
annum and 4.75% per annum based on the Company's consolidated leverage ratio
(as defined under and calculated in accordance with
Non-ABL
Credit Agreement) and (ii) with respect to the Term Revolver Facility and
after payment in full of the Term Loan Facilities, is 3.65% per annum. In the
case of the $150 million borrowing disbursed under the Term Revolver Facility
on October 27, 2023, the Company previously selected a
one-year
fixed rate loan bearing interest at an
all-in
interest rate of 9.13%. Under the Commercial Bank Term Loan Facility, loans
generally may bear interest based on SOFR or a base rate, as applicable, plus,
in each case, an applicable margin that (x) in the case of SOFR loans, may
vary between 1.75% per annum and 4.25% per annum based on the Company's
consolidated leverage ratio and (y) in the case of base rate loans, may vary
between 0.75% per annum and 3.25% per annum, in each case, based on the
Company's consolidated leverage ratio.
From the Closing Date until the Company's consolidated leverage ratio is less
than or equal to 3.25 to 1.00 and the Company's debt to capitalization ratio
is less than or equal to 60%, in each case, for four consecutive fiscal
quarters (or as of the end of a quarter, if earlier, if a disposition is
consummated which results in indebtedness being reduced by at least $200
million) the Company must
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maintain the following financial covenants: (i) a maximum consolidated
leverage ratio not greater than (x) commencing with the first fiscal quarter
ending at least fifteen (15) months after the Closing Date and until the
fiscal quarter ending immediately prior to the first fiscal quarter ending at
least twenty-four (24) months after the Closing Date, 4.50 to 1.00, and (y)
commencing with the first fiscal quarter ending at least twenty-four (24)
months after the Closing Date and thereafter, 4.00 to 1.00; and (ii) a minimum
current ratio (as defined under and calculated in accordance with
Non-ABL
Credit Agreement) not less than 1.25 to 1.00. In addition, until the
Commercial Bank Term Loan Facility is paid in full, the Company must maintain
a maximum debt to capitalization ratio no greater than (1) commencing with the
first fiscal quarter ending after the Closing Date and until the fiscal
quarter ending immediately prior to the first fiscal quarter ending at least
twenty-four (24) months after the Closing Date, 70%, (2) commencing with the
first fiscal quarter ending at least twenty-four (24) months after the Closing
Date and until the fiscal quarter ending immediately prior to the first fiscal
quarter ending at least forty-eight (48) months after the Closing Date, 65%,
and (3) commencing with the first fiscal quarter ending at least forty-eight
(48) months after the Closing Date and thereafter, 60%.
The
Non-ABL
Credit Agreement contains certain customary representations, warranties, and
affirmative and negative covenants of the Company and its subsidiaries that
restrict the Company's and its subsidiaries' ability to take certain actions,
including, incurrence of indebtedness, creation of liens, mergers or
consolidations, capital expenditures, dispositions of assets, repurchase or
redemption of capital stock and certain types of indebtedness, making certain
investments, entering into certain transactions with affiliates or changing
the nature of the Company's business. The obligations under the
Non-ABL
Credit Agreement may be accelerated or the commitments terminated upon the
occurrence of events of default under the
Non-ABL
Credit Agreement, which include payment defaults, defaults in the performance
of affirmative and negative covenants, the inaccuracy of representations or
warranties, bankruptcy and insolvency related defaults, cross defaults to
other material indebtedness, defaults arising in connection with changes in
control, and other customary events of default.
ABL Credit Agreement
On the Closing Date, the Company also entered into an amendment (the "ABL
Amendment") of its ABL Credit Agreement dated July 26, 2019, among the
Company, as borrower, the several lenders from time to time parties thereto
and JPMorgan Chase Bank, N.A., as administrative agent (as amended, the "ABL
Credit Agreement"), the primary purpose of which was to permit the Transaction
and entry into the
Non-ABL
Credit Agreement. In connection with the ABL Amendment, among other things,
the maximum commitment of the lenders (subject to borrowing base limitations)
under the ABL Credit Agreement was increased from $275 million to $375
million, $120 million of which was outstanding after giving effect to the
closing of the Transaction and $3.7 million of which was utilized for
outstanding but undrawn letters of credit. In addition, pursuant to the ABL
Amendment, the debt, liens and dispositions covenants were amended.
The foregoing description of the
Non-ABL
Credit Agreement and the ABL Amendment are qualified in their entirety by
reference to the
Non-ABL
Credit Agreement which is attached hereto as Exhibit 10.1, and the ABL
Amendment which is attached hereto as Exhibit 10.2, each of which is
incorporated by reference herein.
Item 2.01. Completion of Acquisition or Disposition of Assets.
As previously disclosed in the Company's Current Report on Form
8-K
filed on February 21, 2024, on February 20, 2024, the Company entered into an
Asset Purchase Agreement (the "Purchase Agreement") with Graphic Packaging
International, LLC ("GPK"), a wholly owned subsidiary of Graphic Packaging
Holding Company.
The closing of the transactions contemplated by the Purchase Agreement
occurred on May 1, 2024 (the "Closing Date"). Pursuant to the Purchase
Agreement, on the Closing Date, the Company acquired certain assets of GPK's
consumer packaging business operating out of GPK's paperboard mill and
associated facilities in Augusta, Georgia (the "Mill Facility") composed of
the manufacturing, marketing and/or sale of paperboard produced at the Mill
Facility (such acquisition and related transactions contemplated by the
Purchase Agreement, the "Transaction"). On the Closing Date, the Company paid
approximately $700 million in cash, subject to adjustments for inventory and
other assets.
The foregoing description of the Purchase Agreement and the Transaction does
not purport to be complete and is qualified in its entirety by reference to
the full text of the Purchase Agreement, which was filed as Exhibit 2.1 to the
Company's Current Report on Form
8-K
filed on February 21, 2024 and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance
Sheet Arrangement of a Registrant.
The description set forth under Item 1.01 of this Form
8-K
is incorporated by reference herein in its entirety.
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Item 9.01. Financial Statements and Exhibits.
(a) Financial statements of businesses or funds acquired
The Company intends to file an amendment to this Form
8-K,
to provide the financial statements required pursuant to this Item 9.01(a),
within
seventy-one
(71) calendar days after the date on which this Form
8-K
was required to be filed.
(b) Pro forma financial information
The Company intends to file an amendment to this Form
8-K,
to provide the pro forma financial information required pursuant to this Item
9.01(b), within
seventy-one
(71) calendar days after the date on which this Form
8-K
was required to be filed.
(d) Exhibit Index
Exhibit Description
2.1 Asset Purchase Agreement, dated February 20, 2024,
by and between Graphic Packaging International,
LLC and Clearwater Paper Corporation. Filed as
Exhibit 2.1 to the Company's Current Report on Form
8-K
filed on February 21, 2024 and
incorporated herein by reference.
10.1 Amended and Restated Credit Agreement, dated
May 1, 2024, by and among Clearwater Paper
Corporation, AgWest Farm Credit, PCA, as
administrative agent, and the lenders party thereto.
10.2 Fifth Amendment to ABL Credit Agreement and Omnibus Amendment,
dated May 1, 2024, by and among Clearwater Paper Corporation,
the subsidiary guarantors party thereto, JPMorgan Chase Bank,
N.A., as administrative agent, and the lenders party thereto.
104 Cover Page Interactive Data file
(formatted as Inline XBRL).
4
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May 1, 2024
CLEARWATER PAPER CORPORATION
By: /s/ Michael S. Gadd
Michael S. Gadd, Corporate Secretary
5
Exhibit 10.1
Execution Version
$760,000,000
AMENDED ANDRESTATED CREDIT AGREEMENT
dated as of May 1, 2024,
by and among
CLEARWATER PAPERCORPORATION,
as Borrower,
the Lenders referred to herein,
AGWEST FARM CREDIT, PCA,
as Administrative Agent,
and FarmCredit Facilities Lead Arranger,
and
COOPERATIEVE RABOBANK U.A., NEW YORK BRANCH
,
as Syndication Agent,
andCommercial Bank Term Loan Facility Lead Arranger
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS 1
Section 1.1 Definitions 1
Section 1.2 Other Definitions and Provisions 37
Section 1.3 Accounting Terms 38
Section 1.4 UCC Terms 38
Section 1.5 Rounding 38
Section 1.6 References to Agreement and Laws 38
Section 1.7 Times of Day 38
Section 1.8 Interest Rates 39
Section 1.9 Guarantees 39
Section 1.10 Covenant Compliance Generally 39
Section 1.11 Conforming Changes Relating to Term SOFR 39
Section 1.12 Limited Condition Transactions 39
ARTICLE II. CREDIT FACILITIES 40
Section 2.1 The Credit Facilities 40
Section 2.2 Procedure for Advances of Loans 42
Section 2.3 Repayment and Prepayment of Credit Facilities 43
Section 2.4 Permanent Reduction of the Term Revolver Commitments 47
Section 2.5 Termination of Term Revolver Facility 48
ARTICLE III. GENERAL LOAN PROVISIONS 49
Section 3.1 Interest 49
Section 3.2 Notice and Manner of Conversion or Continuation of Loans 51
Section 3.3 Fees 52
Section 3.4 Manner of Payment 52
Section 3.5 Evidence of Indebtedness 53
Section 3.6 Sharing of Payments by Lenders 53
Section 3.7 Payments Generally; Administrative Agent's Clawback 54
Section 3.8 Inability to Determine Rates 55
Section 3.9 Indemnity 57
Section 3.10 Increased Costs 57
Section 3.11 Taxes 59
Section 3.12 Mitigation Obligations; Replacement of Lenders 62
Section 3.13 Illegality 63
Section 3.14 Defaulting Lenders 64
Section 3.15 Capital Plans 65
ARTICLE IV. CONDITIONS OF CLOSING AND BORROWING 66
Section 4.1 Conditions to Initial Extensions of Credit 66
Section 4.2 Conditions to Extensions of Credit Under the Term Revolver Facility 69
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ARTICLE V. REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES 70
Section 5.1 Financial Condition 70
Section 5.2 No Change 70
Section 5.3 Existence; Compliance with Law 70
Section 5.4 Power; Authorization; Enforceable Obligations 70
Section 5.5 No Legal Bar 71
Section 5.6 Litigation 71
Section 5.7 No Default 71
Section 5.8 Ownership of Property; Liens 71
Section 5.9 Intellectual Property 71
Section 5.10 Taxes 71
Section 5.11 Federal Regulations 71
Section 5.12 Labor Matters 71
Section 5.13 ERISA 72
Section 5.14 Investment Company Act; Other Regulations 72
Section 5.15 Subsidiaries; Capital Stock 73
Section 5.16 Use of Proceeds 73
Section 5.17 Environmental Matters 73
Section 5.18 Accuracy of Information, etc. 73
Section 5.19 Security Documents 74
Section 5.20 Solvency 74
Section 5.21 Anti-Corruption Laws; Anti-Money Laundering and Sanctions 74
Section 5.22 Plan Assets; Prohibited Transactions 74
ARTICLE VI. AFFIRMATIVE COVENANTS 75
Section 6.1 Financial Statements and Budgets 75
Section 6.2 Certificates; Other Reports 76
Section 6.3 Payment of Obligations 77
Section 6.4 Maintenance of Existence; Compliance 77
Section 6.5 Maintenance of Property; Insurance 77
Section 6.6 Inspection of Property; Books and Records; Discussions 77
Section 6.7 Notices 78
Section 6.8 Environmental Laws 78
Section 6.9 Additional Collateral, etc. 78
Section 6.10 Deposit Account Control Agreements 80
Section 6.11 Farm Credit Equity 80
Section 6.12 Post-Closing Matters 80
ARTICLE VII. NEGATIVE COVENANTS 80
Section 7.1 Indebtedness 80
Section 7.2 Liens 83
Section 7.3 Fundamental Changes 86
Section 7.4 Disposition of Property 86
Section 7.5 Restricted Payments 88
Section 7.6 Investments 89
Section 7.7 Optional Payments of Certain Subordinated Debt Instruments 91
Section 7.8 Transactions with Affiliates 91
Section 7.9 Sales and Leasebacks 91
Section 7.10 Swap Agreements 92
Section 7.11 Changes in Fiscal Periods 92
Section 7.12 Negative Pledge Clauses 92
Section 7.13 Lines of Business 93
Section 7.14 Use of Proceeds 93
Section 7.15 Clauses Restricting Subsidiary Distributions 93
Section 7.16 Organizational Documents 94
Section 7.17 Financial Covenants 94
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ARTICLE VIII. DEFAULT AND REMEDIES 94
Section 8.1 Events of Default 94
Section 8.2 Remedies 96
Section 8.3 Rights and Remedies Cumulative; 97
Non-Waiver;
etc.
Section 8.4 Crediting of Payments and Proceeds 97
Section 8.5 Administrative Agent May File Proofs of Claim 98
Section 8.6 Credit Bidding 98
Section 8.7 Lender Action 99
Section 8.8 Intercreditor Agreement 99
ARTICLE IX. THE ADMINISTRATIVE AGENT 99
Section 9.1 Appointment and Authority 99
Section 9.2 Rights as a Lender 100
Section 9.3 Exculpatory Provisions 100
Section 9.4 Reliance by the Administrative Agent 101
Section 9.5 Delegation of Duties 101
Section 9.6 Resignation of Administrative Agent 102
Section 9.7 Non-Reliance 103
on Administrative Agent and Other Lenders
Section 9.8 No Other Duties, Etc. 103
Section 9.9 Collateral and Guaranty Matters 103
Section 9.10 Recovery of Erroneous Payments 104
ARTICLE X. MISCELLANEOUS 104
Section 10.1 Notices 104
Section 10.2 Amendments, Waivers and Consents 107
Section 10.3 Expenses; Indemnity 109
Section 10.4 Right of Setoff 111
Section 10.5 Governing Law; Jurisdiction, Etc. 111
Section 10.6 Waiver of Jury Trial 112
Section 10.7 Reversal of Payments 112
Section 10.8 Successors and Assigns; Participations 112
Section 10.9 Treatment of Certain Information; Confidentiality 117
Section 10.10 Performance of Duties 118
Section 10.11 All Powers Coupled with Interest 118
Section 10.12 Survival 118
Section 10.13 Titles and Captions 119
Section 10.14 Severability of Provisions 119
Section 10.15 Counterparts; Integration; Effectiveness; Electronic Execution 119
Section 10.16 Term of Agreement 120
Section 10.17 USA PATRIOT Act 120
Section 10.18 Independent Effect of Covenants 120
Section 10.19 No Advisory or Fiduciary Responsibility 121
Section 10.20 Inconsistencies with Other Documents 121
Section 10.21 Acknowledgement and Consent to 122
Bail-In
of Affected Financial Institutions
Section 10.22 Amendment and Restatement 122
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EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Assumption
Exhibit - Form of U.S. Tax Compliance Certificate
H-1 (Non-Partnership
Foreign Lenders)
Exhibit - Form of U.S. Tax Compliance Certificate
H-2 (Non-Partnership
Foreign Participants)
Exhibit - Form of U.S. Tax Compliance Certificate (Foreign Participant Partnerships)
H-3
Exhibit - Form of U.S. Tax Compliance Certificate (Foreign Lender Partnerships)
H-4
Exhibit I - Form of New Subsidiary Officer's Certificate
Exhibit J - Form of Guarantee and Collateral Agreement
SCHEDULES
Schedule 1.1(a) - Fixed Rate Schedule
Schedule 1.1(b) - Commitments and Commitment Percentages
Schedule 5.13 - ERISA Plans
Schedule 5.15 - Subsidiaries and Capitalization
Schedule 5.19 - Jurisdictions of Organization
Schedule 6.2 - Excluded Subsidiaries
Schedule 6.12 - Post-Closing Matters
Schedule 7.1 - Existing Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.6 - Existing Investments
Schedule 10.8(d) - Voting Participant Schedule
iv
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 1, 2024, by and among
CLEARWATERPAPER CORPORATION,
a Delaware corporation, as Borrower, the lenders who are party to this
Agreement and the lenders who may become a party to this Agreement pursuant to
the terms hereof, as Lenders, and AGWEST FARM CREDIT, PCA, a federallychartered
production credit association, as Administrative Agent for the Lenders.
STATEMENT OF PURPOSE
WHEREAS, the Borrower is party to that certain Credit Agreement dated as of
October 27, 2023, by and among the Borrower, the lenders fromtime to time
party thereto, and AgWest, as administrative agent (as amended, restated or
otherwise modified from time to time prior to the date hereof, the "
Existing Credit Agreement
");
WHEREAS, the Borrower has requested that the Lenders and the Administrative
Agent amend and restate the Existing Credit Agreement in itsentirety on the
terms and conditions set forth herein and that the Lenders, pursuant to this
Agreement, provide a term revolver credit facility, a farm credit term loan
facility and a commercial bank term loan credit facility to the Borrower; and
WHEREAS, subject to the terms and conditions of this Agreement, the Lenders
and the Administrative Agent are willing to amend and restatethe Existing
Credit Agreement in its entirety on the terms and conditions set forth herein,
and the Lenders, to the extent of their respective Commitment as defined
herein, are willing to provide the credit facilities contemplated herein to
theBorrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by theparties hereto, such
parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section
1.1
Definitions
. The following terms when used in this Agreement shall have the meaningsassigne
d to them below:
"
2028 Notes
" means the Borrower's 4.750% senior notes due 2028 issued pursuant to the
2028Notes Indenture.
"
2028 Notes Indenture
" means the Indenture, dated as of August 18, 2020 by and among the
Borrower,as issuer, certain Subsidiaries of the Borrower party thereto as
guarantors and U.S. Bank National Association, as trustee.
"
ABLAgent
" means the "Administrative Agent" as defined in the ABL Facility.
"
ABL Facility
" means the ABLCredit Agreement dated as of July 26, 2019 among the Borrower,
JP Morgan Chase Bank, N.A., as administrative agent, and the lenders from time
to time party thereto, as amended through the date hereof or as further
amended, restated,supplemented or otherwise modified from time to time in
accordance with the terms of the Intercreditor Agreement.
"
ABL PriorityCollateral
" has the meaning specified in the Intercreditor Agreement.
"
Accordion Increase
" has the meaningassigned thereto in
Section
2.1(d)
.
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"
Acquisition
" means the purchase or other acquisition by the Borrower orany Subsidiary of
all or a majority of the Capital Stock of, or all or substantially all of the
property of, any Person, or of any business or division of any Person.
"
Acquisition Leverage Restricted Period
" means the period commencing on the Closing Date and ending on the date the
Borrowerdelivers financial statements pursuant to
Section
6.1
and an Officer's Compliance Certificate pursuant to
Section
6.2(a)
evidencing that both (a) the Consolidated Leverage Ratio is lessthan or equal
to 3.25 to 1.00 as of the most recently ended fiscal quarter for the fourth
(4th) consecutive fiscal quarter and (b) the Debt to Capitalization Ratio is
less than or equal to 60% as of the most recently ended fiscal quarter forthe
fourth (4th) consecutive fiscal quarter;
provided
,
that
, if a Disposition or other divesture is consummated which results in
Indebtedness of the Credit Parties or their Subsidiaries being reduced by at
least $200,000,000 in theaggregate, the Acquisition Leverage Restricted Period
shall end as of the last day of the fiscal quarter in which such Indebtedness
reduction amount is achieved.
"
Administrative Agent
" means AgWest, in its capacity as Administrative Agent hereunder, and any
successor thereto appointedpursuant to
Section
10.6
.
"
Administrative Agent
'
s Office
" means the officeof the Administrative Agent specified in or determined in
accordance with the provisions of
Section
10.1(c)
.
"
Administrative Questionnaire
" means an administrative questionnaire in a form supplied by the
Administrative Agent.
"
Affected Financial Institution
" means (a) any EEA Financial Institution or (b) any UK Financial Institution.
"
Affiliate
" means as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or isunder common control with, such Person. For
purposes of this definition, "control" of a Person means the power, directly
or indirectly, to direct or cause the direction of the management and policies
of such Person, whether by contract orotherwise.
"
Agent Parties
" has the meaning assigned thereto in
Section
10.1(e)
.
"
Aggregate Commitments
" means the aggregate Commitments of all the Lenders in effect at such time.
"
Agreement
" means this Credit Agreement.
"
AgWest
" means AgWest Farm Credit, PCA, a federally chartered production credit
association.
"
Anti-Corruption Laws
" means all laws, rules and regulations of any jurisdiction applicable to the
Borrower or itsSubsidiaries from time to time concerning or relating to
bribery, corruption, money-laundering, or any financial record keeping and
reporting requirements related thereto.
"
Applicable Law
" means all applicable provisions of constitutions, laws, statutes,
ordinances, rules, treaties, regulations,permits, licenses, approvals,
interpretations and orders of Governmental Authorities and all orders and
decrees of all courts and arbitrators.
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"
Applicable Margin
" means (a) the following percentages per annum,based on the Consolidated
Leverage Ratio as set forth in the most recent Officer's Compliance
Certificate received by the Administrative Agent pursuant to
Section
6.2(a)
:
Pricing Level Consolidated Leverage Ratio Applicable Margin for Applicable Margin for
Farm Credit Facilities Commercial Bank Term
Loan Facility
Term Base Rate
SOFR Loans
Rate
Loans
I < 2.00 to 1.00 2.25 % 1.75 % 0.75 %
II e 2.00 to 1.00 but < 2.50 to 1.00 2.50 % 2.00 % 1.00 %
III e 2.50 to 1.00 but < 3.25 to 1.00 3.00 % 2.50 % 1.50 %
IV e 3.25 to 1.00 but < 4.00 to 1.00 3.75 % 3.25 % 2.25 %
V e 4.00 to 1.00 4.75 % 4.25 % 3.25 %
Any increase or decrease in the Applicable Margin resulting from a change in
the Consolidated Leverage Ratio shall becomeeffective as of the first (1st)
Business Day immediately following the date an Officer's Compliance
Certificate is delivered pursuant to Section 6.2(a); provided, that, if an
Officer's Compliance Certificate is not delivered when duein accordance with
Section 6.2(a), then Pricing Level V shall apply as of the first (1st)
Business Day after the date on which such Officer's Compliance Certificate was
required to have been delivered and shall remain in effect until thefirst
(1st) Business Day immediately following the date on which such Officer's
Compliance Certificate is delivered in accordance with Section 6.2(a),
whereupon the Applicable Margin shall be adjusted based upon the calculation
of theConsolidated Leverage Ratio contained in such Officer's Compliance
Certificate. Notwithstanding anything to the contrary contained in this
definition, (a) the Applicable Margin in effect from the Closing Date to the
first (1st) BusinessDay immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.2(a) for the fiscal quarter
ending June 30, 2024 shall be determined based upon Pricing Level IV, and (b)
if, as a result of anyrestatement of or other adjustment to the financial
statements of the Borrower or for any other reason, the Borrower or the
Lenders determine that (i) the Consolidated Leverage Ratio as calculated by
the Borrower as of any applicable date wasinaccurate and (ii) a proper
calculation of the Consolidated Leverage Ratio would have resulted in higher
pricing for such period, the Borrower shall immediately and retroactively be
obligated to pay to the Administrative Agent for the accountof the applicable
Lenders, promptly on demand by the Administrative Agent (or, after the
occurrence of an actual or deemed entry of an order for relief with respect to
the Borrower under Debtor Relief Laws, automatically and without further
actionby the Administrative Agent or any Lender), an amount equal to the
excess of the amount of interest that should have been paid for such period
over the amount of interest actually paid for such period; and
(b) following the repayment in full of the Term Loan Facilities (including
contingent reimbursement obligations and indemnity obligations),3.65% per
annum.
"
Applicable Reference Period
" means as of any date of determination, the most recently ended period offour
consecutive fiscal quarters of the Borrower (the "
Reference Period
") for which financial statements with respect to each fiscal quarter included
in such Reference Period have been delivered pursuant to
Section
6.1(a)
or
6.1(b)
(or, prior to the delivery of any such financial statements, the Reference
Period ended March 31, 2024).
3
-------------------------------------------------------------------------------
"
Approved Fund
" means any Fund that is administered or managed by(a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
"
Arranger
" means (a) the Farm Credit Facilities Lead Arranger and/or (b) the Commercial
Bank Term Loan FacilityLead Arranger, as the context may require.
"
Assignment and Assumption
" means an assignment and assumption entered intoby a Lender and an Eligible
Assignee (with the consent of any party whose consent is required by
Section
10.8
), and accepted by the Administrative Agent, in substantially the form
attached as
Exhibit
G
or any other form approved by the Administrative Agent.
"
AttributableIndebtedness
" means in respect of any sale and leaseback transaction, as at the time of
determination, the present value (discounted at the implied interest rate in
such transaction compounded annually) of the total obligations of thelessee
for rental payments during the remaining term of the lease included in such
sale and leaseback transaction (including any period for which such lease has
been extended or may, at the option of the lessor, be extended). For the
avoidance ofdoubt, notwithstanding anything to the contrary contained in this
Agreement, obligations for rental payments with respect to a lease arising in
connection with a Tax Incentive Transaction shall not constitute Attributable
Indebtedness.
"
Augusta Acquisition Agreement
" means that certain Asset Purchase Agreement dated as of February 20, 2024,
by andbetween the Borrower and the Seller, as amended, restated, supplemented
or otherwise modified from time to time.
"
Augusta MillAcquisition
" means the Acquisition by the Borrower, directly or indirectly, of assets
from the Seller pursuant to the Augusta Acquisition Agreement and the other
Transaction Agreements (as defined in the Augusta Acquisition Agreement).
"
Available Tenor
" means, as of any date of determination and with respect to the then-current
Benchmark, as applicable,(x) if the then-current Benchmark is a term rate, any
tenor for such Benchmark that is or may be used for determining the length of
an Interest Period or (y) otherwise, any payment period for interest
calculated with reference to suchBenchmark, as applicable, pursuant to this
Agreement as of such date.
"
Bail-In
Action
" means the exercise of any Write-Down and Conversion Powers by the applicable
Resolution Authority in respect of any liability of an Affected Financial
Institution.
"
Bail-In
Legislation
" means, (a) with respect to any EEA Member Countryimplementing Article 55 of
Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law, rule, regulation or requirement for such
EEA Member Country from time to time which is described in theEU
Bail-In
Legislation Schedule, and (b) with respect to the United Kingdom, Part I of
the United Kingdom Banking Act 2009 (as amended from time to time) and any
other law, regulation or rule applicablein the United Kingdom relating to the
resolution of unsound or failing banks, investment firms or other financial
institutions or their affiliates (other than through liquidation,
administration or other insolvency proceedings).
"
Base Rate
" means, for any day, a rate per annum equal to the highest of (i) the Prime
Rate in effect on such day,(ii) the Federal Funds Rate in effect on such day
plus one half of one percent (0.50%) and (iii) one percent greater than the
Term SOFR Rate for an Interest Period of
one-month
effective on suchdate;
4
-------------------------------------------------------------------------------
provided, that, in no event shall the Base Rate be less than 1.00%. For
purposes of this definition of "Base Rate," "Prime Rate" shall mean a variable
rate of interest perannum equal to the rate of interest publicly announced
from time to time by Citibank, N.A. in New York City, New York, as its "prime
rate". If Citibank ceases to quote such rate, the "Prime Rate" shall be the
highest per annuminterest rate published by the Federal Reserve Board in
Federal Reserve Statistical Release H.15(519)(Select Interest Rates) as the
"bank prime loan" rate or, if such rate is no longer quoted therein, any
similar rate quoted therein or anysimilar release by the Federal Reserve Board
(in each case, as determined by the Administrative Agent). Any change in the
prime rate shall take effect at the opening of business on the day specified
in the public announcement of such change.
"
Base Rate Loan
" means any Loan bearing interest at a rate based upon the Base Rate as
provided in
Section
3.1(a)
.
"
Benchmark
" means, initially, Term SOFR or the SOFR Monthly Variable BaseRate, as
applicable; provided, that, if a Benchmark Transition Event has occurred with
respect to any initial Benchmark or any then-current Benchmark, then
"Benchmark" means the applicable Successor Rate for such initial or
then-currentBenchmark to the extent that such Successor Rate has replaced such
prior benchmark rate pursuant to
Section
3.8(b)
. Any reference to a "Benchmark" shall include, as applicable, the published
component used in thecalculation thereof.
"
Benchmark Replacement
" means for any Available Tenor, the sum of (i) the alternate benchmarkrate
and (ii) an adjustment (which may be a positive or negative value or zero), in
each case, that has been selected by the Administrative Agent and the Borrower
as the replacement for such Available Tenor of such Benchmark giving
dueconsideration to (i) any selection or recommendation of a replacement
benchmark rate or the mechanism for determining such a rate by the Relevant
Governmental Body or (ii) any evolving or then-prevailing market convention
for determining abenchmark rate as a replacement for the then-current
Benchmark for Dollar-denominated syndicated credit facilities at such time in
the United States; provided, that, if the Benchmark Replacement as determined
above would be less than the 0.0%, theBenchmark Replacement will be deemed to
be 0.0% for the purposes of this Agreement and the other Loan Documents.
"
BenchmarkTransition Event
" means with respect to any then-current Benchmark, the occurrence of a public
statement or publication of information by or on behalf of the administrator
of the then-current Benchmark, the regulatory supervisor for theadministrator
of such Benchmark, the Board, the Federal Reserve Bank of New York, an
insolvency official with jurisdiction over the administrator for such
Benchmark, a resolution authority with jurisdiction over the administrator for
such Benchmarkor a court or an entity with similar insolvency or resolution
authority over the administrator for such Benchmark, announcing or stating
that (a) such administrator has ceased or will cease on a specified date to
provide all Available Tenors ofsuch Benchmark, permanently or indefinitely,
provided
that, at the time of such statement or publication, there is no successor
administrator that will continue to provide any Available Tenor of such
Benchmark or (b) all Available Tenorsof such Benchmark are or will no longer
be representative of the underlying market and economic reality that such
Benchmark is intended to measure and that representativeness will not be
restored.
"
Board
" means the Board of Governors of the Federal Reserve System of the United
States (or any successor).
"
Borrower
" means Clearwater Paper Corporation, a Delaware corporation.
"
Borrower Materials
" has the meaning assigned thereto in
Section
6.1
.
5
-------------------------------------------------------------------------------
"
Budget
" has the meaning assigned thereto in
Section
6.1(c)
.
"
Business Day
" means any day other than a Saturday, Sunday or other day onwhich commercial
banks are authorized to close under the Applicable Laws of, or are in fact
closed in, New York and in the state where the Administrative Agent's Office
is located (if different) and, if such day relates to any Term SOFR Loan,SOFR
Monthly Variable Base Rate Loan or Daily Simple SOFR Loan, means any such day
that is also a U.S. Government Securities Business Day.
"
Capital Expenditures
" means for any period, with respect to any Person, the aggregate of all
expenditures by such Person andits Subsidiaries for the acquisition or leasing
(pursuant to a capital lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) that is required to be capitalizedunder GAAP on a consolidated
balance sheet of such Person and its Subsidiaries.
"
Capital Lease Obligations
" means as toany Person, the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are
required to be classified andaccounted for as capital leases or financing
leases on a balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined inaccordance with GAAP;
provided, that any lease (or other arrangement) of such Person that is or
would have been treated as an operating lease as determined in accordance with
GAAP immediately prior to the issuance of the Accounting Standards Update
2016-02,
Leases (Topic 842) by the Financial Accounting Standards Board shall not be
treated as a Capital Lease Obligation under this Agreement and the other Loan
Documents, whether or not such obligations were ineffect as of the date such
update was issued and regardless of whether GAAP requires such obligations to
be treated as capitalized lease obligations in the financial statements of
such Person.
"
Capital Stock
" means any and all shares, interests, participations or other equivalents
(however designated) of capitalstock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all
warrants, rights or options to purchase any of the foregoing, but excluding
any debt securities convertible into any of theforegoing.
"
Cash Equivalents
" means (a) marketable direct obligations issued by, or unconditionally
guaranteed by,the United States Government or issued by any agency thereof and
backed by the full faith and credit of the United States, in each case
maturing within two years from the date of acquisition; (b) certificates of
deposit, time deposits,eurodollar time deposits or overnight bank deposits
having maturities of six months or less from the date of acquisition issued by
any Lender or by any commercial bank organized under the laws of the United
States or any state thereof havingcombined capital and surplus of not less
than $250,000,000; (c) commercial paper of an issuer rated at least
A-2
by S&P or
P-2
by Moody's, or carrying anequivalent rating by a nationally recognized rating
agency, if both of the two named rating agencies cease publishing ratings of
commercial paper issuers generally, and maturing within nine months from the
date of acquisition; (d) repurchaseobligations of any Lender or of any
commercial bank satisfying the requirements of
clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the UnitedStates
government; (e) securities with maturities of two years or less from the date
of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, by any political subdivision or taxing
authority of anysuch state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A byMoody's; (f) securities with maturities of six
months or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the requirements
of
clause (b)
of thisdefinition; (g) money market mutual or similar funds that
6
-------------------------------------------------------------------------------
invest exclusively in assets satisfying the requirements of
clauses (a)
through
(f)
of this definition; or (h) money market funds that (i) comply with the
criteriaset forth in SEC Rule
2a-7
under the Investment Company Act of 1940, as amended, (ii) are rated AAA by
S&P and Aaa by Moody's and (iii) have portfolio assets of at least
$5,000,000,000.
"
CFC
" means (a) each Person that is a "controlled foreign corporation" for
purposes of the Code and(b) each Subsidiary of any such Person.
"
CFC Holding Company
" means each Domestic Subsidiary substantially all ofthe assets of which
consist of Capital Stock of one or more (a) CFCs or (b) Persons described in
this definition.
"
Change in Law
" means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption ortaking effect of any law, rule, regulation or
treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation, implementation or application thereof by any
Governmental Authority or (c) the making orissuance of any request, rule,
guideline or directive (whether or not having the force of law) by any
Governmental Authority;
provided
that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall
Street Reform andConsumer Protection Act and all requests, rules, guidelines
or directives thereunder or issued in connection therewith and (ii) all
requests, rules, guidelines or directives promulgated by the Bank for
International Settlements, the BaselCommittee on Banking Supervision (or any
successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed
to be a "Change in Law", regardless of thedate enacted, adopted or issued.
"
Change of Control
" means (a) any "person" or "group" (as suchterms are used in Sections 13(d)
and 14(d) of the Exchange Act, but excluding any employee benefit plan of such
person or its Subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of anysuch plan) becomes
the "beneficial owner" (as defined in Rules
13d-3
and
13d-5
under the Exchange Act, except that a "person" or "group"shall be deemed to
have "beneficial ownership" of all Capital Stock that such "person" or "group"
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time (such right, an"option right")), directly or
indirectly, of more than 40% of the Capital Stock of the Borrower entitled to
vote in the election of members of the board of directors (or equivalent
governing body) of the Borrower or (b) the occurrenceof any "change in
control" (or similar event, however denominated) with respect to the Borrower
under and as defined in any indenture or other agreement or instrument
evidencing or governing the rights of the holders of any MaterialIndebtedness
of the Borrower or any of its Subsidiaries.
"
Closing Date
" means May 1, 2024.
"
Closing Date Cost of Funds
" has the meaning set forth in
Section
3.1(e)
.
"
Code
" means the Internal Revenue Code of 1986.
"
Collateral
" means the collateral security for the Obligations pledged or granted
pursuant to the Security Documents (for theavoidance of doubt, excluding in
all cases, the Excluded Assets (as defined in the Guarantee and Collateral
Agreement)).
"
Commercial Bank Lender
" means each Person executing this Agreement as a Commercial Bank Lender on
the Closing Date.
"
Commercial Bank Term Loan
" has the meaning assigned thereto in
Section
2.1(b)
.
7
-------------------------------------------------------------------------------
"
Commercial Bank Term Loan Commitment
" means, as to each Commercial BankLender, its obligation to make its portion
of the Commercial Bank Term Loan to the Borrower pursuant to
Section
2.1(b)
, in the principal amount set forth opposite such Commercial Bank Lender's
name on
Schedule1.1(b)
. The aggregate principal amount of the Commercial Bank Term Loan Commitment
of all of the Commercial Bank Lenders as in effect on the Closing Date is
$90,000,000.
"
Commercial Bank Term Loan Facility
" means the commercial bank term loan credit facility established pursuant to
ArticleII
.
"
Commercial Bank Term Loan Facility Lead Arranger
" means Rabobank, in its capacity as sole lead arranger andsole bookrunner
with respect to the Commercial Bank Term Loan Facility.
"
Commitment
" means as to any Lender, the TermRevolver Commitment, the Farm Credit Term
Loan Commitment and/or the Commercial Bank Term Loan Commitment of such
Lender, as the context may require.
"
Commitment Fee
" has the meaning assigned thereto in
Section
3.3(a)
.
"
Commitment Percentage
" means, with respect to any Lender at any time, (a) with respect to the Term
Revolver Facility,the percentage of the aggregate Term Revolver Commitments as
of such date represented by such Lender's Term Revolver Commitment; provided,
that
, if the Term Revolver Commitments have terminated or expired, the Commitment
Percentagesunder the Term Revolver Facility shall be determined based upon the
Term Revolver Commitments most recently in effect, giving effect to any
assignments, (b) with respect to the Farm Credit Term Loan Facility, (i) if
the Farm Credit TermLoan Commitments remain in effect, the percentage of the
aggregate Farm Credit Term Loan Commitments represented by such Lender's Farm
Credit Term Loan Commitment and (ii) if the Farm Credit Term Loans are
outstanding, the percentage ofthe aggregate outstanding principal amount of
the Farm Credit Term Loans as of such date represented by the outstanding
principal amount of the Farm Credit Term Loans of such Lender and (c) with
respect to the Commercial Bank Term LoanFacility, (i) if the Commercial Bank
Term Loan Commitments remain in effect, the percentage of the aggregate
Commercial Bank Term Loan Commitments represented by such Lender's Commercial
Bank Term Loan Commitment and (ii) if theCommercial Bank Term Loans are
outstanding, the percentage of the aggregate outstanding principal amount of
the Commercial Bank Term Loans as of such date represented by the outstanding
principal amount of the Commercial Bank Term Loans of suchLender. The initial
Commitment Percentage of each Lender with respect to each Credit Facility is
set forth opposite the name of such Lender on
Schedule 1.1(b)
.
"
Commodity Exchange Act
" means the Commodity Exchange Act (7 U.S.C. (s) 1 et seq.).
"
Conforming Changes
" means, with respect to the use, administration of or any conventions
associated with SOFR or anyproposed Successor Rate or Term SOFR, as
applicable, any conforming changes to the definitions of "SOFR Monthly
Variable Base Rate", "SOFR", "Term SOFR" and "Interest Period", the timing and
frequency ofdetermining rates and making payments of interest and other
technical, administrative or operational matters (including, for the avoidance
of doubt, the definitions of "Business Day" and "U.S. Government Securities
Business Day",the timing of borrowing requests or prepayment, conversion or
continuation notices and length of lookback periods) as may be appropriate, in
the discretion of the Administrative Agent, in consultation with the Borrower,
to reflect the adoption andimplementation of such applicable rate(s) and to
permit the administration thereof by the Administrative Agent in a manner
substantially consistent with market practice (or, if the Administrative Agent
determines that adoption of any portion of suchmarket practice is not
administratively feasible or that no market practice for the administration of
such rate exists, in such other manner of administration as the Administrative
Agent determines is reasonably necessary in connection with theadministration
of this Agreement and any other Loan Document).
8
-------------------------------------------------------------------------------
"
Connection Income Taxes
" means Other Connection Taxes that are imposed onor measured by net income
(however denominated) or that are franchise Taxes or branch profits Taxes.
"
Consolidated
"means, when used with reference to financial statements or financial
statement items of any Person, such statements or items on a consolidated
basis in accordance with applicable principles of consolidation under GAAP.
"
Consolidated Capitalization
" means (a) Consolidated Total Debt plus (b) consolidated shareholders' equity
ofthe Borrower and its Subsidiaries (excluding
non-cash
write-downs of goodwill associated with the acquisition and exclusion of the
impacts of other comprehensive income).
"
Consolidated Current Assets
" means at any date, all amounts (other than cash and Cash Equivalents) that
would, in conformitywith GAAP, be reflected in "total current assets" (or any
like caption) on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date.
"
Consolidated Current Liabilities
" means at any date, all amounts that would, in conformity with GAAP, be
reflected in"total current liabilities" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such date,
but excluding (a) the current portion of any Funded Debt of the Borrower and
its Subsidiaries and(b) without duplication of clause (a) above, all
Indebtedness consisting of Term Revolver Loans and loans under the ABL
Facility to the extent otherwise included therein.
"
Consolidated EBITDA
" means, for any period, the sum of the following determined on a Consolidated
basis, withoutduplication, for the Borrower and its Subsidiaries in accordance
with GAAP: (a) Consolidated Net Income for such period
plus
(b) the sum of the following, without duplication and to the extent reflected
as a charge in the statementof such Consolidated Net Income for such period:
(i) income and franchise tax expense, (ii) interest expense (including
interest expense attributable to Capital Lease Obligations and all net payment
obligations pursuant to SwapAgreements), amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with all Indebtedness permitted hereunder, (iii)
depreciation and amortization expense,
(iv) non-cash
charges, losses, expenses, accruals and provisions, including stock-based
compensation or awards and sale of assets not in the ordinary course of
business (but excluding any such
non-cash
charge to the extent that it represents an accrual or reserve for cash
expenses in any future period), (v) amortization of intangibles (including,
but not limited to, impairment of goodwill) andorganization costs, (vi) any
extraordinary, unusual or
non-recurring
expenses or losses, (vii) any fees and expenses incurred during such period in
connection with any Investment (including anyAcquisition permitted hereunder),
Disposition, issuance of all Indebtedness or Capital Stock, or amendment or
modification of any debt instrument, in each case permitted under this
Agreement, including (A) any such transactions undertaken butnot completed and
any transactions consummated prior to the Closing Date and (B) any financial
advisory fees, accounting fees, legal fees and other similar advisory and
consulting fees, in each case paid in cash during such period(collectively, "
Advisory Fees
"), (viii) any fees and expenses incurred in connection with the Transactions,
including Advisory Fees and (solely for purposes of this
clause (viii)
) cash charges in respect of strategic marketreviews, stay or
sign-on
bonuses, integration-related bonuses, restructuring, consolidation, severance
or discontinuance of any portion of operations, employees and/or management,
(ix) the amount of
"run-rate"
cost savings, operating expense reductions, operating improvements and
synergies that are reasonably identifiable, factually supportable and
projected by the Borrower in good faith to berealized as a result of mergers
and other business combinations, Acquisitions permitted hereunder,
divestitures, insourcing initiatives, cost savings initiatives, plant
consolidations, openings and closings, product rationalization and other
similarinitiatives taken or initiated before, on or after the Closing Date, in
each
9
-------------------------------------------------------------------------------
case to the extent not prohibited by this Agreement (collectively, "
Initiatives
") (calculated on a pro forma basis as though such cost savings, operating
expense reductions,operating improvements and synergies had been realized on
the first day of the relevant Reference Period), net of the amount of actual
benefits realized in respect thereof;
provided
that (A) actions in respect of such cost-savings,operating expense reductions,
operating improvements and synergies have been, or will be, taken within 24
months of the applicable Initiative, (B) no cost savings, operating expense
reductions, operating improvements or synergies shall be addedpursuant to this
clause (ix)
to the extent duplicative of any expenses or charges otherwise added to (or
excluded from) Consolidated EBITDA, whether through a pro forma adjustment or
otherwise, for such period, (C) projected amounts(and not yet realized) may no
longer be added in calculating Consolidated EBITDA pursuant to this
clause (ix)
to the extent occurring more than eight full fiscal quarters after the
applicable Initiative, (D) the Borrower mustdeliver to the Administrative
Agent (I) a certificate of a Responsible Officer setting forth such estimated
cost savings, operating expense reductions, operating improvements and
synergies and (II) information and calculations supportingin reasonable detail
such estimated cost savings, operating expense reductions, operating
improvements and synergies and (E) with respect to any Reference Period, the
aggregate amount added back in the calculation of Consolidated EBITDA forsuch
Reference Period pursuant to this
clause (ix)
and
clause (xi)
below shall not exceed 25% of Consolidated EBITDA (calculated prior to giving
effect to any
add-backs
pursuant to this
clause (ix)
and
clause (xi)
below), (x)
non-recurring
cash expenses recognized for restructuring costs, integration costs and
business optimization expenses in connection with anyInitiative, (xi)
recurring cash charges from discontinued operations;
provided
that, with respect to any Reference Period, the aggregate amount added back in
the calculation of Consolidated EBITDA for such Reference Period pursuant
tothis
clause (xi)
and
clause (ix)
above shall not exceed 25% of Consolidated EBITDA (calculated prior to giving
effect to any
add-backs
pursuant to this
clause (xi)
and
clause (ix)
above) and (xii) any
one-time
charges related to a Material Pension Event (including for the avoidance of
doubt any such charges in the nature of a
true-up
taken in a subsequent quarter),
less
(c) to the extent included in the statement of such Consolidated Net Income
for such period, the sum of (i) interest income, (ii) anyextraordinary,
unusual or
non-recurring
income or gains (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, gains
on the salesof assets outside of the ordinary course of business), (iii)
income tax credits (to the extent not netted from income tax expense), (iv)
any other
non-cash
income (other than normal accruals in the ordinarycourse of business for
non-cash
income that represents an accrual for cash income in a future period) and (v)
all net gains pursuant to Swap Agreements and (d) any cash payments made
during suchperiod in respect of items described in
clause (b)(iv)
above subsequent to the fiscal quarter in which the relevant
non-cash
expenses or losses were reflected as a charge in the statement ofConsolidated
Net Income, all as determined on a consolidated basis. For the purposes of
calculating Consolidated EBITDA for any Reference Period pursuant to any
determination of the Consolidated Leverage Ratio, (i) if at any time during
suchReference Period the Borrower or any Subsidiary shall have made any
Material Disposition, the Consolidated EBITDA for such Reference Period shall
be reduced by an amount equal to the Consolidated EBITDA (if positive)
attributable to the propertythat is the subject of such Material Disposition
for such Reference Period or increased by an amount equal to the Consolidated
EBITDA (if negative) attributable thereto for such Reference Period and (ii)
if during such Reference Period theBorrower or any Subsidiary shall have made
an Acquisition permitted hereunder, Consolidated EBITDA for such Reference
Period shall be calculated after giving pro forma effect thereto as if such
Acquisition occurred on the first day of such ReferencePeriod. For purposes of
this Agreement, Consolidated EBITDA shall be adjusted on a Pro Forma Basis.
"
Consolidated LeverageRatio
" means as at the last day of any Reference Period, the ratio of (a)(i)
Consolidated Total Debt on such day less (ii) the aggregate Unrestricted Cash
of the Group Members on such day to (b) Consolidated EBITDA for suchperiod.
10
-------------------------------------------------------------------------------
"
Consolidated Net Income
" means for any period, the consolidated net income(or loss) of the Borrower
and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded: (a) The income (or deficit) of
any Person accrued prior to the date it becomes a Subsidiary ofthe Borrower or
is merged into or consolidated with the Borrower or any of its Subsidiaries,
except to the extent calculated on a Pro Forma Basis; (b) The income (or
deficit) of any Person (other than a Subsidiary of the Borrower) in which
theBorrower or any of its Subsidiaries has an ownership interest, except to
the extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions; (c) The
undistributed earningsof any Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Loan Document) orRequirement of Law
applicable to such Subsidiary; (d) Any income (or loss) for such period
attributable to the early extinguishment of Indebtedness or Swap Obligations;
(e) The cumulative effect of a change in accounting principles andchanges as a
result of the adoption or modification of accounting policies during such
period; and (f) All net
after-tax
gains, losses, expenses and charges attributable to business dispositions and
assetdispositions, including the sale or other disposition of any Capital
Stock of any Person, other than in the ordinary course of business.
"
Consolidated Net Tangible Assets
" means, with respect to any specified Person as of any date of determination,
the sum ofthe amounts that would appear on a Consolidated balance sheet of
such Person and its Consolidated Subsidiaries as the total assets (less
accumulated depreciation and amortization, allowances for doubtful
receivables, other applicable reserves andother properly deductible items) of
such Person and its Subsidiaries, after giving effect to purchase accounting
and after deducting therefrom Consolidated Current Liabilities and, to the
extent otherwise included, the amounts of (withoutduplication):
(a) the excess of cost over fair market value of assets or businesses acquired;
(b) any revaluation or other
write-up
in book value of assets subsequent to the lastday of the fiscal quarter of
such Person immediately preceding the Closing Date as a result of a change in
the method of valuation in accordance with GAAP;
(c) unamortized debt discount and expenses and other unamortized deferred
charges, goodwill, patents, trademarks, servicemarks, trade names, copyrights,
licenses, organization or developmental expenses and other intangible items;
(d) minorityinterests in consolidated Subsidiaries held by Persons other than
the specified Person or any Subsidiary;
(e) treasurystock; and
(f) cash or securities set aside and held in a sinking or other analogous fund
established for the purpose ofredemption or other retirement of capital stock
to the extent such obligation is not reflected in Consolidated Current
Liabilities.
"
Consolidated Total Debt
" means at any date (without duplication), all Capital Lease Obligations,
purchase moneyIndebtedness, Indebtedness for borrowed money and letters of
credit (but only to the extent drawn and not reimbursed), in each case of the
Borrower and its Subsidiaries at such date, determined on a Consolidated basis
in accordance with GAAP.
"
Consolidated Working Capital
" means at any date, the excess of Consolidated Current Assets on such date
over ConsolidatedCurrent Liabilities on such date.
11
-------------------------------------------------------------------------------
"
Contractual Obligation
" means as to any Person, any provision of anysecurity issued by such Person
or of any agreement, instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
"
Credit Facility
" means the Term Revolver Facility, the Farm Credit Term Loan Facility and/or
the Commercial Bank Term LoanFacility established pursuant to
Article II
, as the context may require.
"
Credit Parties
" means, collectively,the Borrower and the Subsidiary Guarantors.
"
Current Ratio
" means, as of any date of determination, the ratio of(a) assets that would be
classified as current assets on the Consolidated balance sheet of the Borrower
and its Subsidiaries to (b) liabilities that would be classified as current
liabilities on the Consolidated balance sheet of theBorrower and its
Subsidiaries, as of such date, in each case as determined in accordance with
GAAP.
"
Daily Simple SOFRLoan
" means a Loan that bears interest at the Daily Simple SOFR Rate plus the
Applicable Margin.
"
Daily Simple SOFRRate
" means, for any day (a "
Daily Simple SOFR Rate Day
"), a rate per annum equal to the greater of (a) SOFR for the day (such day, a "
Daily Simple SOFR Determination Date
") that is five U.S.Government Securities Business Days prior to (i) if such
Daily Simple SOFR Rate Day is a U.S. Government Securities Business Day, such
Daily Simple SOFR Rate Day or (ii) if such Daily Simple SOFR Rate Day is not a
U.S. GovernmentSecurities Business Day, the U.S. Government Securities
Business Day immediately preceding such Daily Simple SOFR Rate Day, in each
case, as such SOFR is published by the SOFR Administrator on the SOFR
Administrator's website, and(b) zero. If, by 5:00 p.m. on the second U.S.
Government Securities Business Day immediately following any Daily Simple SOFR
Determination Date, SOFR in respect of such Daily Simple SOFR Determination
Date has not been published on the SOFRAdministrator's website and a Benchmark
Transition Event with respect to the Daily Simple SOFR Rate has not occurred,
then the SOFR for such Daily Simple SOFR Determination Date will be the SOFR
as published in respect of the first precedingU.S. Government Securities
Business Day for which such SOFR was published on the SOFR Administrator's
website;
provided
that any SOFR determined pursuant to this sentence shall be utilized for
purposes of the calculation of the DailySimple SOFR Rate for no more than
three consecutive Daily Simple SOFR Rate Days.
"
Debt to Capitalization Ratio
" means,as of any date of determination, the ratio of (a) Consolidated Total
Debt as of such date to (b) Consolidated Capitalization as of such date.
"
Debtor Relief Laws
" means the Bankruptcy Code of the United States of America, and all other
liquidation, conservatorship,bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect.
"
Default
" means any of the events specified in
Section
8.1
which with the passage of time, thegiving of notice or both, would constitute
an Event of Default.
"
Defaulting Lender
" means, subject to
Section
3.14(b)
, any Lender that (a) has failed to (i) fund all or any portion of the Loans
required to be funded by it hereunder within two Business Days of the date
such Loans were required to be fundedhereunder unless such Lender notifies the
Administrative Agent and the Borrower in writing that such failure is the
result of such Lender's determination that one or more conditions precedent to
funding (each of which conditions precedent,together with any applicable
default, shall be specifically identified in such writing) has not been
satisfied, or (ii) pay to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within two BusinessDays of the
12
-------------------------------------------------------------------------------
date when due, (b) has notified the Borrower or the Administrative Agent in
writing that it does not intend to comply with its funding obligations
hereunder, or has made a public statementto that effect (unless such writing
or public statement relates to such Lender's obligation to fund a Loan
hereunder and states that such position is based on such Lender's
determination that a condition precedent to funding (whichcondition precedent,
together with any applicable default, shall be specifically identified in such
writing or public statement) cannot be satisfied), (c) has failed, within
three Business Days after written request by the Administrative Agent orthe
Borrower, to confirm in writing to the Administrative Agent and the Borrower
that it will comply with its prospective funding obligations hereunder (
provided
that such Lender shall cease to be a Defaulting Lender pursuant to this
clause (c)
upon receipt of such written confirmation by the Administrative Agent and the
Borrower), (d) has become the subject of a
Bail-in
Action or has a direct or indirect parent company thathas become the subject
of a
Bail-in
Action or (e) has, or has a direct or indirect parent company that has, (i)
become the subject of a proceeding under any Debtor Relief Law, or (ii)
hadappointed for it a receiver, custodian, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or assets, including the FDIC or
any other state orfederal regulatory authority acting in such a capacity;
provided
that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct
or indirect parent companythereof by a Governmental Authority so long as such
ownership interest does not result in or provide such Lender with immunity
from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment onits assets or permit such
Lender (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender. Any determination
by the Administrative Agent that a Lender is a Defaulting Lender underany one
or more of
clauses (a)
through
(d)
above shall be conclusive and binding absent manifest error, and such Lender
shall be deemed to be a Defaulting Lender (subject to
Section
3.14(b)
) upon deliveryof written notice of such determination to the Borrower and
each Lender.
"
Defaulting Voting Participant
" means anyParticipant who would be a Defaulting Lender but for such
Participant's status as a Participant, including, by way of example, in the
event a Participant failed to fund any of its participation obligations or pay
any amount required to be paidby it in connection with such participation
obligation, in each such example with respect to amounts owed by the Lender
that sold the participation pursuant to the Loan Documents.
"
Designated
Non-Cash
Consideration
" means the fair market value of
non-cash
consideration received by the Borrower or one of its Subsidiaries in
connection with a Disposition that is so designated as Designated
Non-Cash
Consideration pursuantto a certificate of a Responsible Officer, setting forth
the basis of such valuation, less the amount of cash and Cash Equivalents
received in connection with a subsequent sale of such Designated
Non-Cash
Consideration within 180 days of receipt thereof.
"
Disposition
" means with respect to any property, any sale, lease,sale and leaseback,
assignment, conveyance, transfer or other disposition (in one transaction or
in a series of transactions) of any property by any Person (including any sale
and leaseback transaction and any issuance of Capital Stock by aSubsidiary of
such Person), including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith. The terms "
Dispose
" and"
Disposed of
" shall have correlative meanings.
"
Disqualified Capital Stock
" means with respect to anyPerson, any Capital Stock of such Person that by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable, either mandatorily or at the option of the holder
thereof), or upon the happening of any eventor condition:
(a) matures or is mandatorily redeemable (other than solely for Capital Stock
of such Person that does notconstitute Disqualified Capital Stock and cash in
lieu of fractional shares of such Capital Stock) whether pursuant to a sinking
fund obligation or otherwise;
13
-------------------------------------------------------------------------------
(b) is convertible or exchangeable, either mandatorily or at the option ofthe
holder thereof, for Indebtedness or Capital Stock (other than solely for
Capital Stock of such Person that does not constitute Disqualified Capital
Stock and cash in lieu of fractional shares of such Capital Stock); or
(c) is redeemable (other than solely for Capital Stock of such Person that
does not constitute Disqualified Capital Stock andcash in lieu of fractional
shares of such Capital Stock) or is required to be repurchased by the Borrower
or any Subsidiary, in whole or in part, at the option of the holder thereof;
in each case, on or prior to the date that is 91 days after the Maturity Date
(determined as of the date of issuance thereof or, in the case of any
suchCapital Stock outstanding on the Closing Date, the Closing Date);
provided
,
however
, that (i) Capital Stock of any Person that would not constitute Disqualified
Capital Stock but for terms thereof giving holders thereof the rightto require
such Person to redeem or purchase such Capital Stock upon the occurrence of an
"asset sale" or a "change of control" (or similar event, however denominated)
shall not constitute Disqualified Capital Stock if any suchrequirement becomes
operative only after repayment in full of all the Loans and all other
Obligations that are accrued and payable and (ii) Capital Stock of any Person
that is issued to any employee or to any plan for the benefit of employeesor
by any such plan to such employees shall not constitute Disqualified Capital
Stock solely because it may be required to be repurchased by such Person or
any of its subsidiaries in order to satisfy applicable statutory or regulatory
obligations oras a result of such employee's termination, death or disability.
"
Disqualified Lenders
" means (a) certainbanks, financial institutions, other institutional lenders
and other Persons that have been specified in writing to the Administrative
Agent by the Borrower prior to the Closing Date, (b) competitors of the
Borrower and its Subsidiaries and anyaffiliate of such competitor, in each
case, that is identified in writing to the Administrative Agent by the
Borrower from time to time and (c) any affiliates of the entities described in
the foregoing
clauses (a)
or
(b)
thatare clearly identifiable as affiliates of such entities solely on the
basis of the similarity of their names (other than affiliates that constitute
bona fide debt funds primarily investing in loans). In no event shall the
designation of any Personas a Disqualified Lender apply (x) to disqualify any
Person until three Business Days after such Person shall have been identified
in writing to the Administrative Agent via electronic mail submitted to
forestproducts@agwestfc.com (or to suchother address as the Administrative
Agent may designate to the Borrower from time to time). For the avoidance of
doubt, with respect to any assignee that becomes a Disqualified Lender after
the applicable Trade Date (including as a result of thedelivery of a notice
pursuant to, and/or the expiration of the notice period referred to in, this
definition) or is otherwise party to a pending trade as of the date of such
notice, (x) such assignee shall not retroactively be disqualified frombecoming
a Lender and (y) the execution by the Borrower of an Assignment and Assumption
with respect to such assignee will not by itself result in such assignee no
longer being considered a Disqualified Lender.
"
Dollars
" or "
$
" means, unless otherwise qualified, dollars in lawful currency of the United
States.
"
Domestic Subsidiary
" means any Subsidiary organized under the laws of any political subdivision
of the United States.
"
EEA Financial Institution
" means (a) any credit institution or investment firm established in any EEA
Member Countrywhich is subject to the supervision of an EEA Resolution
Authority, (b) any entity established in an EEA Member Country which is a
parent of an institution described in
clause
(a)
of this definition, or (c) anyinstitution established in an EEA Member Country
which is a subsidiary of an institution described in
clauses
(a)
or
(b)
of this definition and is subject to consolidated supervision with its parent.
14
-------------------------------------------------------------------------------
"
EEA Member Country
" means any of the member states of the European Union,Iceland, Liechtenstein,
and Norway.
"
EEA Resolution Authority
" means any public administrative authority or any Personentrusted with public
administrative authority of any EEA Member Country (including any delegee)
having responsibility for the resolution of any EEA Financial Institution.
"
Electronic Signature
" means an electronic sound, symbol, or process attached to, or associated
with, a contract or otherrecord and adopted by a Person with the intent to
sign, authenticate or accept such contract or record.
"
EligibleAssignee
" means any Person that meets the requirements to be an assignee under
Section
10.8(b)(iii)
and
(v)
(subject to such consents, if any, as may be required under
Section
10.8(b)(iii)
).
"
Environmental Claims
" means any and all administrative, regulatory orjudicial actions, suits,
demands, demand letters, claims, liens, accusations, allegations, notices of
noncompliance or violation, investigations (other than internal reports
prepared by any Person in the ordinary course of business and not inresponse
to any third party action or request of any kind) or proceedings relating in
any way to any actual or alleged violation of or liability under any
Environmental Law or relating to any permit issued, or any approval given,
under any suchEnvironmental Law, including any and all claims by Governmental
Authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages, contribution, indemnification, cost recovery, compensation
or injunctive relief resultingfrom Hazardous Materials or arising from alleged
injury or threat of injury to public health or the environment.
"
EnvironmentalLaws
" means any and all foreign, Federal, state, local or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law (including common
law)regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may at any
time hereafter be in effect.
"
Environmental Permits
" means any and all permits, licenses, approvals, registrations, notifications,
exemptions and anyother authorization required under any Environmental Law.
"
ERISA
" means the Employee Retirement Income Security Act of1974.
"
ERISA Affiliate
" means any trade or business (whether or not incorporated) that, together
with the Borrower, istreated as a single employer under Section 414(b) or (c)
of the Code or Section 4001(a)(14) of ERISA or, solely for purposes of Section
302 of ERISA and Section 412 of the Code, is treated as a single employer
underSection 414(m) or (o) of the Code.
"
ERISA Event
" means (a) any "reportable event", as definedin Section 4043 of ERISA with
respect to a Plan (other than an event for which the 30 day notice period is
waived); (b) the failure to satisfy the "minimum funding standard" (as defined
in Section 412 of the Code orSection 302 of ERISA), whether or not waived; (c)
the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA
of an application for a waiver of the minimum funding standard with respect to
any Plan; (d) theincurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or
a plan administrator of anynotice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partialwithdrawal of the Borrower or any of
its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt
by the Borrower or any ERISA Affiliate of any notice, or the
15
-------------------------------------------------------------------------------
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of
any notice, concerning the imposition upon the Borrower or any of its ERISA
Affiliates of Withdrawal Liability or adetermination that a Multiemployer Plan
is, or is expected to be, insolvent within the meaning of Title IV of ERISA.
"
EU
Bail-In
Legislation Schedule
" means the EU
Bail-In
Legislation Schedule published by the Loan Market Association (or any
successor person), as in effect from time totime.
"
Event of Default
" means any of the events specified in
Section
8.1
;
provided
that any requirement for passage of time, giving of notice, or any other
condition, has been satisfied.
"
Excess CashFlow
" means for the applicable period, an amount equal to the sum of the following:
(a) the sum of the following for suchperiod, without duplication, for the
Borrower and its Subsidiaries:
(i) Consolidated Net Income for such period,
(ii) the amount of all
non-cash
charges (including depreciation and amortization)deducted in arriving at such
Consolidated Net Income,
(iii) decreases in Consolidated Working Capital for such period,
(iv) the aggregate net amount of
non-cash
loss on the Disposition of property bythe Borrower and its Subsidiaries during
such period (other than sales of inventory in the ordinary course of
business), to the extent deducted in arriving at such Consolidated Net Income,
and
(v) cash gains in respect of Swap Obligations during such period to the extent
not included in arriving at Consolidated NetIncome,
minus
(b) the sum of the following for such period, without duplication, for the
Borrower and its Subsidiaries:
(i) the amount of all
non-cash
income included in arriving at such Consolidated NetIncome,
(ii) without duplication of amounts deducted from Excess Cash Flow in prior
periods, the aggregate amount actuallypaid by the Borrower and its
Subsidiaries in cash during such period on account of Capital Expenditures
(excluding the principal amount of Indebtedness incurred in connection with
such expenditures and any such expenditures financed with theproceeds of any
Reinvestment Deferred Amount or the proceeds of any issuance of Capital Stock
of the Borrower),
(iii)without duplication of amounts deducted from Excess Cash Flow in prior
periods, the aggregate amount of Restricted Payments made by the Borrower in
cash during such period permitted pursuant to
Section
7.5(b)
,
(d)
,
(g)
and
(h)
(excluding the principal amount of Indebtedness (other than extensions of
credit under the Term Revolver Facility, the ABL Facility or any other
revolving credit or similar facility) incurred in connection with
suchRestricted Payments and any Restricted Payments made with proceeds of any
issuance of Capital Stock of the Borrower),
16
-------------------------------------------------------------------------------
(iv) the aggregate amount of all voluntary prepayments of Funded Debt
(otherthan (A) the Loans, (B) the ABL Facility, (C) any other revolving credit
facility to the extent there is not an equivalent permanent reduction in
commitments thereof and (D) any Permitted Pari Passu Indebtedness) of the
Borrower and itsSubsidiaries made during such period (excluding any such
prepayments financed with the proceeds of any issuance of Capital Stock of the
Borrower or the issuance of any Indebtedness),
(v) the aggregate amount of all regularly scheduled principal payments of
Funded Debt (including the Term Loan Facilities) ofthe Borrower and its
Subsidiaries made during such period (other than in respect of any revolving
credit facility to the extent there is not an equivalent permanent reduction
in commitments thereunder),
(vi) increases in Consolidated Working Capital for such period,
(vii) the aggregate net amount of
non-cash
gain on the Disposition of property by theBorrower and its Subsidiaries during
such period (other than sales of inventory in the ordinary course of
business), to the extent included in arriving at such Consolidated Net Income,
(viii) to the extent not otherwise deducted from Consolidated Net Income, the
aggregate amount of all income and similar Taxes,to the extent the same are
payable in cash with respect to such period, paid during such period,
(ix) to the extent nototherwise deducted from Consolidated Net Income,
interest expense and any cash payments in respect of premium, make-whole or
penalty payments in respect of Indebtedness of the Borrower and its
Subsidiaries for such period,
(x) without duplication of amounts deducted from Excess Cash Flow in prior
periods, the aggregate amount of cash considerationpaid by the Borrower and
its Subsidiaries during such period to make Investments permitted by
Section
7.6
(excluding any such Investments (1) financed with the proceeds of any
Reinvestment Deferred Amount or theproceeds or any issuance of Capital Stock
of the Borrower or the issuance of any Indebtedness or (2) that constitute
intercompany investments),
(xi) cash charges included in clauses (a) through (f) of the definition of
"Consolidated Net Income,"
(xii) without duplication of amounts deducted from Excess Cash Flow in prior
periods and, at the option of the Borrower, theaggregate cash consideration
(x) required to be paid by the Borrower and its Subsidiaries pursuant to
binding contracts (the "
Contract Consideration
") entered into prior to or during such period relating to Investmentsanticipate
d to be consummated that are permitted pursuant to
Section
7.6
(other than any intercompany Investments), (y) expected to be paid in
connection with Restricted Payments permitted pursuant to
Section
7.5(b)
,
(d)
,
(g)
and
(h)
("
Planned Distributions
") or (z) expected to be paid in connection with planned Capital Expenditures
of the Borrower and its Subsidiaries (the"
Planned Expenditures
"), in each case during the next fiscal quarter of the Borrower following the
end of the applicable fiscal quarter for which Excess Cash Flow is being
calculated (except to the extent financed with the proceedsof Indebtedness,
the proceeds of any Reinvestment Deferred Amount or the proceeds of any
issuance of Capital Stock of the Borrower);
provided
,
that
, to the extent the aggregate amount of cash actually utilized to finance
suchInvestments, Restricted Payments or Capital Expenditures during such
subsequent period is less than the Contract Consideration, Planned
Distributions and the Planned Expenditures, the amount of such shortfall shall
be added to the calculation ofExcess Cash Flow at the end of such subsequent
period,
17
-------------------------------------------------------------------------------
(xiii) cash expenditures in respect of Swap Obligations during such periodto
the extent not deducted in arriving at such Consolidated Net Income, and
(xiv) any payment of cash to be amortized orexpensed over a future period and
recorded as a long-term asset (so long as any such amortization or expense in
such future period is added back to Excess Cash Flow in such future period)
(excluding the principal amount of Indebtedness incurred inconnection with
such payment and any such payment financed with the proceeds of any
Reinvestment Deferred Amount or the proceeds of any issuance of Capital Stock
of the Borrower).
"
Exchange Act
" means the Securities Exchange Act of 1934.
"
Excluded Account
" has the meaning set forth in the Guarantee and Collateral Agreement.
"
Excluded Subsidiary
" means (a) any Immaterial Subsidiary, (b) any
non-Wholly-Owned
Subsidiary to the extent the organizational documents thereof prohibit it from
guaranteeing the Obligations, (c) any Subsidiary that is prohibited or
restricted by applicable law, rule orregulation or by any contractual
obligation existing on the Closing Date or on the date such Subsidiary was
acquired (so long as such contractual obligation was not entered into in
contemplation of such acquisition) from guaranteeing the Obligationsor which
would require a
non-ministerial
governmental (including regulatory) consent, approval, license or
authorization to provide a guarantee unless such consent, approval, licensor
authorization has beenreceived (the Credit Parties being under no obligation
to obtain such consent, approval or licensor authorization), (d) any CFC or
CFC Holding Company, (e) any Domestic Subsidiary of a Foreign Subsidiary,
(f) not-for-profit
Subsidiaries and captive insurance companies, (g) any Subsidiary whose
provision of a guarantee would have a cost (including tax cost), burden,
difficulty or consequence that isexcessive in relation to the value afforded
thereby as agreed between the Borrower and Administrative Agent, and (h) any
Subsidiary acquired pursuant to an Acquisition permitted hereunder with
Indebtedness permitted to be incurred pursuant tothe Loan Documents as assumed
Indebtedness and any Subsidiary thereof that guarantees such assumed
Indebtedness, in each case to the extent such secured Indebtedness prohibits
such Subsidiary from becoming a Subsidiary Guarantor. Each ExcludedSubsidiary
as of the Closing Date is set forth on
Schedule 6.2
.
"
Excluded Taxes
" means any of the following Taxesimposed on or with respect to a Recipient or
required to be withheld or deducted from a payment to a Recipient, (a) Taxes
imposed on or measured by net income (however denominated), franchise Taxes,
and branch profits Taxes, in each case,(i) imposed as a result of such
Recipient being organized under the laws of, or having its principal office
or, in the case of any Lender, its applicable lending office located in, the
jurisdiction imposing such Tax (or any politicalsubdivision thereof) or (ii)
that are Other Connection Taxes, (b) in the case of a Lender, United States
federal withholding Taxes imposed on amounts payable to or for the account of
such Lender with respect to an applicable interest in aLoan, Note or
Commitment pursuant to a law in effect on the date on which (i) such Lender
acquires such interest in a Loan, Note or Commitment (other than pursuant to
an assignment request by the Borrower under
Section
3.12(b)
) or (ii) such Lender changes its lending office, except in each case to the
extent that, pursuant to
Section
3.11
, amounts with respect to such Taxes were payable either tosuch Lender's
assignor immediately before such Lender became a party hereto or to such
Lender immediately before it changed its lending office, (c) Taxes
attributable to such Recipient's failure to comply with
Section
3.11(g)
and (d) any United States federal withholding Taxes imposed under FATCA.
"
ExistingCredit Agreement
" has the meaning assigned to it in the recitals.
"
Existing Fixed Rate Loan
" means the FixedRate Loan borrowed pursuant to the Existing Credit Agreement.
The principal amount of the Existing Fixed Rate Loan on the Closing Date is
$150,000,000.
18
-------------------------------------------------------------------------------
"
Existing Fixed Rate Loan Prepayment Exception
" has the meaning assignedthereto in
Section
2.3(d)
.
"
Farm Credit Administration
" means that certain agency known as theFarm Credit Administration that
derives its authority from the Farm Credit Act of 1971.
"
Farm Credit Equities
" has themeaning assigned thereto in
Section
6.11
.
"
Farm Credit Facilities
" means the Term RevolverFacility and the Farm Credit Term Loan Facility.
"
Farm Credit Facilities Lead Arranger
" means AgWest, in its capacity assole lead arranger and sole bookrunner with
respect to the Farm Credit Facilities.
"
Farm Credit Facilities Loans
" means(a) the Term Revolver Loans and/or (b) the Farm Credit Term Loans, as
the context may require.
"
Farm CreditLender
" means a lending institution (including any wholly-owned subsidiaries)
organized and existing pursuant to the provisions of the Farm Credit Act of
1971 and under the regulation of the Farm Credit Administration.
"
Farm Credit Term Loan
" has the meaning assigned thereto in
Section
2.1(a)
.
"
Farm Credit Term Loan Commitment
" means, as to each Farm Credit Lender that is a Lender, its obligation to
make its portionof the Farm Credit Term Loan to the Borrower pursuant to
Section
2.1(a)
in the principal amount set forth opposite such Farm Credit Lender's name on
Schedule 1.1(b)
. The aggregate principal amount of the FarmCredit Term Loan Commitments of
all such Farm Credit Lenders as in effect on the Closing Date is $400,000,000.
"
Farm Credit TermLoan Facility
" means the farm credit term loan credit facility established pursuant to
Article II
.
"
FATCA
" means Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor versionthat is substantively comparable
and not materially more onerous to comply with), any current or future
regulations or official interpretations thereof and any agreements entered
into pursuant to Section 1471(b)(1) of the Code and any fiscal orregulatory
legislation, rules or practices adopted pursuant to any intergovernmental
agreement, treaty or convention among Governmental Authorities and
implementing such Sections of the Code.
"
FDIC
" means the Federal Deposit Insurance Corporation or any successor thereto.
"
Federal Funds Rate
" means, for any day, the rate per annum equal to the weighted average of the
rates on overnight federalfunds transactions with members of the Federal
Reserve System on such day (or, if such day is not a Business Day, for the
immediately preceding Business Day), as published by the Federal Reserve Bank
of New York on the Business Day next succeedingsuch day,
provided
that if such rate is not so published for any day which is a Business Day, the
average of the quotation for such day on such transactions received by the
Administrative Agent from three federal funds brokers of recognizedstanding
selected by the Administrative Agent. Notwithstanding the foregoing, if the
Federal Funds Rate shall be less than zero, such rate shall be deemed to be
zero for purposes of this Agreement.
"
Fee Letter
" means the separate fee letter agreement dated February 20, 2024 between the
Borrower, AgWest, CoBank, FCBand Rabobank.
19
-------------------------------------------------------------------------------
"
First Tier Foreign Subsidiary
" means any Foreign Subsidiary the CapitalStock of which is owned directly by
any Credit Party.
"
Fiscal Year
" means the fiscal year of the Borrower and itsSubsidiaries ending on December
31.
"
Fixed Rate
" means, for any Fixed Rate Loan and for the applicable Interest Period,a rate
equal to the applicable Rate Pricing Index, as made available by AgWest
pursuant to procedures and documentation set forth on
Schedule 1.1(a)
hereto.
"
Fixed Rate Loan
" means any Loan bearing interest at a rate based upon a Fixed Rate as
provided in
Section
3.1(a)
.
"
Foreign Benefit Arrangement
" means any employee benefit arrangement mandatedby
non-U.S.
law that is maintained or contributed to by any Group Member, any ERISA
Affiliate or any other entity related to a Group Member on a controlled group
basis.
"
Foreign Lender
" means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S.
Person, and (b) if theBorrower is not a U.S. Person, a Lender that is resident
or organized under the laws of a jurisdiction other than that in which the
Borrower is resident for tax purposes.
"
Foreign Plan
" means each employee benefit plan (within the meaning of Section 3(3) of
ERISA, whether or not such planis subject to ERISA) that is not subject to US
law and is maintained or contributed to by any Group Member, or ERISA
Affiliate or any other entity related to a Group Member on a controlled group
basis.
"
Foreign Plan Event
" means with respect to any Foreign Benefit Arrangement or Foreign Plan, (a)
the failure to make or,if applicable, accrue in accordance with normal
accounting practices, any employer or employee contributions required by
applicable law or by the terms of such Foreign Benefit Arrangement or Foreign
Plan; (b) the failure to register or loss ofgood standing with applicable
regulatory authorities of any such Foreign Benefit Arrangement or Foreign Plan
required to be registered; or (c) the failure of any Foreign Benefit
Arrangement or Foreign Plan to comply with any material provisionsof
applicable law and regulations or with the material terms of such Foreign
Benefit Arrangement or Foreign Plan.
"
ForeignSubsidiary
" means any Subsidiary of the Borrower that is not a Domestic Subsidiary.
"
Fund
" means any Person(other than a natural Person) that is (or will be) engaged
in making, purchasing, holding or otherwise investing in commercial loans,
bonds and similar extensions of credit in the ordinary course of its
activities.
"
Funded Debt
" means as to any Person, all Indebtedness of such Person that matures more
than one year from the date of itscreation or matures within one year from
such date but is renewable or extendible, at the option of such Person, to a
date more than one year from such date or arises under a revolving credit or
similar facility that obligates the lender or lendersto extend credit during a
period of more than one year from such date, including all current maturities
and current sinking fund payments in respect of such Indebtedness whether or
not required to be paid within one year from the date of itscreation and, in
the case of the Borrower, Indebtedness in respect of the Loans and the ABL
Facility.
"
GAAP
" meansgenerally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of theFinancial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as
of the date of determination, consistentlyapplied.
20
-------------------------------------------------------------------------------
"
Governmental Approvals
" means all authorizations, consents, approvals,permits, licenses and
exemptions of, and all registrations and filings with or issued by, any
Governmental Authorities.
"
Governmental Authority
" means the government of the United States or any other nation, or of any
political subdivisionthereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertainingto government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"
GroupMembers
" means the collective reference to the Borrower and its Subsidiaries.
"
Guarantee and CollateralAgreement
" means the Amended and Restated Guarantee and Collateral Agreement, dated as
of the Closing Date, executed and delivered by the Borrower and each
Subsidiary Guarantor, substantially in the form of
Exhibit J
.
"
Guarantee Obligation
" means as to any Person (the "guaranteeing person"), any obligation,
including areimbursement, counterindemnity or similar obligation, of the
guaranteeing Person that guarantees or in effect guarantees, or which is given
to induce the creation of a separate obligation by another Person (including
any bank under any letter ofcredit) that guarantees or in effect guarantees,
any Indebtedness, leases, dividends or other obligations (the "primary
obligations") of any other third Person (the "primary obligor") in any manner,
whether directly orindirectly, including any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds(1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchaseproperty, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless theowner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of anyGuarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a)
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee Obligation is made and (b) the
maximumamount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such
primary obligation and the maximum amount for which such guaranteeing person
may be liable are notstated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"
Hazardous Materials
" means any substances or materials (a) which are defined as hazardous wastes,
hazardous substances,pollutants, contaminants, chemical substances or mixtures
or toxic substances under any Environmental Law, (b) the presence of which
require investigation or remediation under any Environmental Law or common law
or (c) the discharge oremission or release of which requires a permit or
license under any Environmental Law or other Governmental Approval.
"
ImmaterialSubsidiary
" means any Subsidiary that is not a Material Subsidiary and that is
designated by the Borrower in writing to the Administrative Agent as an
"Immaterial Subsidiary";
provided
that if (i) as of the last day ofthe most recently ended fiscal quarter of the
Borrower for which financial statements have been delivered pursuant to
Section
6.1(a)
or
(b)
, the aggregate Consolidated Net Tangible
21
-------------------------------------------------------------------------------
Assets of all Immaterial Subsidiaries, as of the last day of such fiscal
quarter, exceeds 5% of Consolidated Net Tangible Assets of the Borrower and
its Subsidiaries or (ii) the aggregatecontribution of Consolidated EBITDA of
all Immaterial Subsidiaries to Consolidated EBITDA for the Applicable
Reference Period exceeds 7.5% of Consolidated EBITDA of the Borrower and its
Subsidiaries for such Applicable Reference Period, then one ormore
Subsidiaries that are not Material Subsidiaries shall promptly be designated
by the Borrower in writing to the Administrative Agent as a "Material
Subsidiary" until such excess has been eliminated. Each Immaterial Subsidiary
as of theClosing Date is set forth on
Schedule 6.2
.
"
Indebtedness
" means of any Person at any date, without duplication,(a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than (i) trade payables
incurred in the ordinary course of such Person'sbusiness or consistent with
industry or past practice, (ii) deferred compensation payable to directors,
officers or employees of any Group Member, (iii) any purchase price adjustment
or earnout obligation until such adjustment orobligation becomes a liability
on the balance sheet of such Person in accordance with GAAP, (iv) accrued
expenses and liabilities and intercompany liabilities arising in the ordinary
course of such Person's business, and (v) prepaidor deferred revenue arising
in the ordinary course of business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or othertitle
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property),
(e) allCapital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in
respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) theliquidation value of all redeemable preferred
Disqualified Capital Stock of such Person, (h) all Guarantee Obligations of
such Person in respect of obligations of the kind referred to in
clauses (a)
through
(g)
above,(i) all obligations of the kind referred to in
clauses (a)
through
(h)
above secured by (or for which the holder of such obligation has an existing
right, contingent or otherwise, to be secured by) any Lien on property(including
accounts and contract rights) owned by such Person, whether or not such
Person has assumed or become liable for the payment of such obligation (but
only to the extent of the lesser of (i) the amount of such Indebtedness
and(ii) the fair market value of such property), and (j) for the purposes of
Section
8.1(f)
only, after taking into account the effect of any legally enforceable netting
agreement relating to Swap Agreements,(i) for any date on or after the date
such Swap Agreements have been closed out and termination value(s) determined
in accordance therewith, such termination value(s), and (ii) for any date
prior to the date referenced in the immediatelypreceding
clause (i)
, the amount(s) determined as the
mark-to-market
value(s) for such Swap Agreements, as determined based upon one or more
mid-market
or other readily available quotations provided by any recognized dealer in
such Swap Agreements (which may include a Lender or any Affiliate of a
Lender). The Indebtedness of any Person shall include theIndebtedness of any
other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,except
to the extent the terms of such Indebtedness expressly provide that such
Person is not liable therefor. For the avoidance of doubt, notwithstanding
anything to the contrary contained in this Agreement, neither a Tax Incentive
Transaction norany obligations arising in connection therewith shall
constitute Indebtedness.
"
Indemnified Taxes
" means (a) Taxes,other than Excluded Taxes, imposed on or with respect to any
payment made by or on account of any obligation of any Credit Party under any
Loan Document and (b) to the extent not otherwise described in
clause (a)
, Other Taxes.
"
Indemnitee
" has the meaning assigned thereto in
Section
10.3(b)
.
22
-------------------------------------------------------------------------------
"
Intellectual Property
" means the collective reference to all rights,priorities and privileges
relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including copyrights, copyright
licenses, patents, patent licenses, trademarks, trademark licenses,technology,
know-how
and processes, all registrations and applications therefor, and all rights to
sue at law or in equity for any infringement or other impairment thereof,
including the right to receive allproceeds and damages therefrom.
"
Intercreditor Agreement
" means that certain amended and restated intercreditoragreement, dated as of
the date hereof, between the Administrative Agent and the ABL Agent, and
acknowledged by the Credit Parties, as amended, restated, supplemented or
otherwise modified from time to time in accordance with the terms thereof.
"
Interest Period
" means, (a) as to a Fixed Rate Loan, the period of (or approximately) one,
three or five yearscommencing on the date such Fixed Rate Loan is disbursed or
converted to or continued as a Fixed Rate Loan in accordance with the
procedures set forth on
Schedule 1.1(a)
and ending on End Date (as defined in
Schedule 1.1(a)
) and(b) as to each Term SOFR Loan, the period commencing on the date such
Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan
and ending on the date one or three months thereafter, in each case, as
selected by the Borrowerin its Notice of Borrowing or Notice of Conversion/Conti
nuation and subject to availability;
provided
that:
(x) in the case of anyInterest Period for a Term SOFR Loan:
(i) any Interest Period that would otherwise end on a day that is not a
Business Dayshall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is nonumerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
(iii) no Interest Period shall extend beyond the Maturity Date;
(iv) there shall be no more than five Interest Periods in effect at any time
with respect to each Credit Facility; and
(y) in the case of any Interest Period for a Fixed Rate Loan:
(i) such Interest Period shall end on the corresponding
1-,
3-
or
5-year
anniversary of the first day of the month following the Effective Date (as
defined in
Schedule 1.1(a)
) if the Effective Date is not the first day of amonth or the corresponding
anniversary of the Effective Date if such Effective Date is the first day of a
month;
(ii) noInterest Period shall extend beyond Maturity Date;
(iii) there shall be no more than five Interest Periods in effect atany time;
and
(iv) if any Interest Period would otherwise expire on a day that is not a
Business Day, such Interest Periodshall expire on the next succeeding Business
Day.
23
-------------------------------------------------------------------------------
"
Investment
" has the meaning assigned thereto in
Section
7.6
. For the avoidance of doubt, notwithstanding anything to the contrary
contained in this Agreement, a Tax Incentive Transaction shall not constitute
an Investment.
"
IRS
" means the United States Internal Revenue Service.
"
Joint Venture
" means a joint venture, partnership or other similar arrangement entered into
by the Borrower or anySubsidiary, whether in corporate, partnership or other
legal form;
provided
that in no event shall any Subsidiary be considered a Joint Venture.
"
Lender
" means each of the Farm Credit Lenders and the Commercial Bank Lenders
identified on the signature pages hereto andany other Person that shall have
become a party to this Agreement as a Lender pursuant to an Assignment and
Assumption or pursuant to
Section
3.13
, other than any Person that ceases to be a party hereto as a Lender
pursuantto an Assignment and Assumption.
"
Lien
" means, any mortgage, pledge, hypothecation, assignment, deposit
arrangement,encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retentionagreement and any capital lease
having substantially the same economic effect as any of the foregoing).
"
Limited ConditionTransaction
" means any Investment that the Borrower or a Subsidiary is contractually
committed to consummate (it being understood that such commitment may be
subject to conditions precedent, which conditions precedent may be
amended,satisfied or waived in accordance with the applicable agreement)
within 365 days and whose consummation is not conditioned on the availability
or, on obtaining, third party financing.
"
Loan Documents
" means, collectively, this Agreement, each Note, the Security Documents, the
Intercreditor Agreement, and theFee Letter and any amendment, waiver,
supplement or other modification to any of the foregoing.
"
Loans
" means any loanmade to the Borrower pursuant to
Section
2.1
(including as may be converted or continued in accordance with
Article 3)
, and all such loans collectively as the context requires.
"
Margin Stock
" means margin stock within the meaning of Regulations T, U and X, as
applicable.
"
Material Adverse Effect
" means a material adverse change in, or a material adverse effect on, (a) the
business,property, assets, or liabilities (actual or contingent), operations
or financial condition of the Borrower and its Subsidiaries taken as a whole,
(b) the ability of the Credit Parties (taken as a whole) to perform the
obligations under the LoanDocuments to which they are a party or (c) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"
Material Disposition
" means any Disposition of property or series of related Dispositions (other
than Dispositions permittedpursuant to
Section
7.4(m)
) of property that yields gross proceeds to the Credit Parties in excess of
$65,000,000.
"
Material Indebtedness
" means Indebtedness (other than the Loans) of any one or more of the Credit
Parties in an aggregateprincipal amount of $75,000,000 or more;
provided
that any loans under the ABL Facility shall be deemed to be Material
Indebtedness. For purposes of determining Material Indebtedness, the
"principal amount" of any Swap Obligation atany time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower
and/or any Credit Party would be required to pay if the applicable Swap
Agreement were terminated at such time.
24
-------------------------------------------------------------------------------
"
Material Pension Event
" means a withdrawal during the term of thisAgreement by the Borrower from a
single Multiemployer Plan requiring cash payments by the Borrower or its
Subsidiaries which Multiemployer Plan is identified in writing to the
Administrative Agent in the Officer's Compliance Certificaterequired to be
delivered for the fiscal quarter ending after the occurrence thereof.
"
Material Subsidiary
" means, as ofany date of determination, each Subsidiary (a) with tangible
assets (including the value of Capital Stock of its subsidiaries) on such date
of determination equal to or greater than 5.0% of Consolidated Net Tangible
Assets, (b) whosecontribution to Consolidated EBITDA for the Applicable
Reference Period exceeds 7.5% of Consolidated EBITDA for the Applicable
Reference Period or (c) that is designated as a "Material Subsidiary" pursuant
to the definition ofImmaterial Subsidiary.
"
Materials of Environmental Concern
" means any gasoline or petroleum (including crude oil or anyfraction thereof)
or petroleum products, asbestos, polychlorinated biphenyls, urea-formaldehyde
insulation, radioactivity, and any other substances, materials or wastes, that
are regulated pursuant to or that could give rise to liability under
anyEnvironmental Law.
"
Maturity Date
" means the earliest to occur of (a)(i) in the case of the Term Revolver
Facility andthe Commercial Bank Term Loan Facility, May 1, 2029 and (ii) in
the case of the Farm Credit Term Loan Facility, May 1, 2031 (each, a "
Scheduled Maturity Date
"), (b) in the case of the Term Revolver Facility, thedate of termination of
the Term Revolver Facility and the aggregate Term Revolver Commitments by the
Borrower pursuant to
Section
2.4
, (c) the date of termination of the Aggregate Commitments pursuant to
Section
8.2(a)
and (d) 91 days prior to the maturity date in respect of the 2028 Notes unless
as of such 91
st
day and at all times thereafter (i) (A) the sum of(1) Availability (as defined
in the ABL Facility) (2) amounts available to be borrowed under the Credit
Facilities and (3) Unrestricted Cash exceeds (B) the sum of $50,000,000 and
the outstanding principal amount of 2028 Notes(or any indebtedness that
refinanced the 2028 Notes with a maturity that is earlier than 91 days after
the applicable Scheduled Maturity Date) or (ii) the Borrower has received a
binding commitment to refinance the outstanding 2028 Notes on orprior to the
maturity date of the 2028 Notes (subject only to reasonable and customary
conditions acceptable to the Administrative Agent).
"
Moody's
" means Moody's Investors Service, Inc. and any successor thereto.
"
Multiemployer Plan
" means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to
which any Group Member orany ERISA Affiliate (i) makes or is obligated to make
contributions, (ii) during the preceding five plan years, has made or been
obligated to make contributions or (iii) has any actual or contingent
liability.
"
Multiple Employer Plan
" means a Plan which has two or more contributing sponsors (including any
Group Member or any ERISAAffiliate) at least two of whom are not under common
control, as such a Plan is described in Section 4064 of ERISA.
"
NetCash Proceeds
" means in connection with any issuance of Indebtedness, any Disposition or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment
ofprincipal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), net of the
direct costs relating to such issuance of Indebtedness, Disposition or
Recovery Event includingattorneys' fees, accountants' fees, investment banking
fees, sales commissions, amounts required to be applied to the
25
-------------------------------------------------------------------------------
repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset that is the subject of such Disposition or Recovery Event and other
customary fees and expenses actuallyincurred in connection therewith and net
of taxes paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax
sharing arrangements) and any (i) reasonable reservefor adjustment in respect
of the sale price of such asset or assets established in accordance with GAAP;
provided
that upon release of any such reserve, the amount released shall be considered
Net Cash Proceeds and (ii) any reasonablereserve or payment with respect to
any liabilities associated with such asset or assets and retained by the
Borrower after such sale or other disposition thereof, including, severance
costs, pension and other post-employment benefit liabilities andliabilities
related to environmental matters or against any indemnification obligations
associated with such transaction; provided that upon release of any such
reserve, the amount released shall be considered Net Cash Proceeds; and
provided,further that upon reinvestment of any such proceeds in accordance with
Section
2.3(b)
, such proceeds so reinvested shall cease to constitute Net Cash Proceeds
hereunder.
"
New Lender
" has the meaning assigned thereto in
Section
2.01(a)(ii)(C)
.
"
Non-ABL
Priority Collateral
" has the meaning specified in the IntercreditorAgreement.
"
Non-Consenting
Lender
" means any Lender or Voting Participant thatdoes not approve any consent,
waiver, amendment, modification or termination that (a) requires the approval
of all Lenders and Voting Participants or all affected Lenders and Voting
Participants in accordance with the terms of
Section
10.2
and (b) has been approved by the Required Lenders.
"
Non-Defaulting
Lender
" means, at any time, each Lender that is not a DefaultingLender at such time.
"
Note
" means a promissory note made by the Borrower in favor of a Lender evidencing
the Loans madeby such Lender, substantially in the form attached as
Exhibit A
, and any substitutes therefor, and any replacements, restatements, renewals
or extension thereof, in whole or in part.
"
Notice of Account Designation
" has the meaning assigned thereto in
Section
2.2(b)
.
"
Notice of Borrowing
" has the meaning assigned thereto in
Section
2.2(a)
.
"
Notice of Conversion/Continuation
" has the meaning assigned thereto in
Section
3.2
.
"
Notice of Prepayment
" has the meaning assigned thereto in
Section
2.3(d)
.
"
Obligations
" means, in each case, whether now in existence or hereafter arising: (a) the
principal of and interest on(including interest accruing after the filing of
any bankruptcy or similar petition) the Loans and (b) all other fees and
commissions (including reasonable and documented attorneys' fees), charges,
indebtedness, loans, liabilities,financial accommodations, obligations,
covenants and duties owing by the Credit Parties to the Lenders or the
Administrative Agent, in each case under any Loan Document, with respect to
any Loan of every kind, nature and description, direct orindirect, absolute or
contingent, due or to become due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any note and including interest
and fees that accrue after the commencement by or against any Credit Partyof
any proceeding under any Debtor Relief Laws, naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.
"
Officer
'
s Compliance Certificate
" means a certificate of the chief financial officer or the treasurer ofthe
Borrower substantially in the form attached as
Exhibit F
.
26
-------------------------------------------------------------------------------
"
Other Connection Taxes
" means, with respect to any Recipient, Taxesimposed as a result of a present
or former connection between such Recipient and the jurisdiction imposing such
Tax (other than connections arising from such Recipient having executed,
delivered, become a party to, performed its obligations under,received
payments under, received or perfected a security interest under, engaged in
any other transaction pursuant to or enforced any Loan Document, or sold or
assigned an interest in any Loan or Loan Document).
"
Other Taxes
" means all present or future stamp, court, documentary, intangible,
recording, filing or similar Taxes thatarise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, from the
receipt or perfection of a security interest under, or otherwise with respect
to, any Loan Document, except any such Taxes thatare Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant
to
Section
3.12
).
"
Participant
" has the meaning assigned thereto in
Section
10.8(d)
.
"
Participant Register
" has the meaning assigned thereto in
Section
10.8(d)
.
"
PATRIOT Act
" means the USA PATRIOT Act (Title III of Pub. L.
107-56
(signed into lawOctober 26, 2001)).
"
PBGC
" means the Pension Benefit Guaranty Corporation or any successor agency.
"
Pension Plan
" means any employee benefit plan (including a Multiple Employer Plan, but not
including a Multiemployer Plan)that is subject to Title IV of ERISA, Section
412 of the Code or Section 302 of ERISA (i) which is or was sponsored,
maintained or contributed to by, or required to be contributed to by, any
Group Member or any ERISA Affiliate or(ii) with respect to which any Group
Member or any ERISA Affiliate has any actual or contingent liability.
"
Permitted A/RFinance Transaction
" means the bona fide sale for cash by the Borrower or its Subsidiaries to an
unaffiliated third party on an arm's length and
non-recourse
basis (except for customaryrepresentations, warranties, commercial disputes
and other standard recourse or repurchase obligations in customary
transactions of this type) of Receivables and Related Assets pursuant to (i)
the Supplier Agreement, and (ii) such otheragreements which meet the foregoing
criteria in an aggregate amount not to exceed $30,000,000 in face value per
fiscal quarter.
"
Permitted Liens
" means the Liens permitted pursuant to
Section
7.2
.
"
Permitted Pari Passu Indebtedness
" has the meaning assigned thereto in
Section
7.1(q)
.
"
Permitted Refinancing Indebtedness
" means with respect to any Indebtedness of any Person (the "
OriginalIndebtedness
"), any modification, refinancing, refunding, replacement, renewal or
extension of such Indebtedness, in whole or in part;
provided
, that (i) no Person that is not an obligor with respect to the Original
Indebtednessshall be an obligor with respect to such Permitted Refinancing
Indebtedness, (ii) the final maturity of such Indebtedness is no sooner and
weighted average life to maturity of such Indebtedness is no shorter than such
Original Indebtedness,(iii) in the case of any modification, refinancing,
refunding, replacement, renewal or extension of Indebtedness incurred pursuant
to
Section
7.1(b)
, the other material terms and conditions of such Indebtedness aftergiving
effect to such modification, refinancing, refunding, replacement, renewal or
extension, taken as a whole (other than interest rates, rate floors, fees and
optional prepayment or redemption terms), either (x) reflect market terms at
thetime of issuance thereof, as reasonably determined by the Borrower in good
faith, or (y) shall, taken as a whole, not be more favorable to the lenders
providing such Indebtedness than the terms and conditions applicable to the
Original
27
-------------------------------------------------------------------------------
Indebtedness, (iv) (x) in the case of any Original Indebtedness consisting of
a revolving credit facility, the committed amount in respect of the Permitted
Refinancing Indebtedness does notexceed the committed amount in respect of the
Original Indebtedness and (y) otherwise, the principal amount (or accreted
value, if applicable) thereof does not exceed the principal amount (or
accreted value, if applicable) of the OriginalIndebtedness, except in each
case by an amount (such amount, the "
Additional Permitted Amount
") equal to unpaid accrued interest and premium thereon at such time plus
reasonable fees and expenses incurred in connection with suchmodification,
refinancing, refunding, replacement, renewal or extension, (v) for the
avoidance of doubt, the Original Indebtedness is paid down (or, with respect
to revolving credit facilities, commitments in respect thereof are
reduced(together with, if applicable, payments of principal)) on a
dollar-for-dollar
basis by such Permitted Refinancing Indebtedness (other than by the Additional
PermittedAmount), (vi) if the Original Indebtedness shall have been
subordinated to the Obligations, such Permitted Refinancing Indebtedness shall
also be subordinated to the Obligations on terms not less favorable in any
material respect to the Lenders and(vii) such Permitted Refinancing
Indebtedness shall not be secured by any Lien on any asset other than the
assets that secured such Original Indebtedness (or would have been required to
secure such Original Indebtedness pursuant to the termsthereof) or, in the
event Liens securing such Original Indebtedness shall have been contractually
subordinated to any Lien securing the Obligations, by any Lien that shall not
have been contractually subordinated to at least the same extent.
"
Permitted Supply Chain Financing
" means transactions related to accounts payable of the Credit Parties with
respect to theirsupply chain (a)(i) in the ordinary course of business of the
Credit Parties or (ii) consistent with past practices of the Credit Parties on
the Closing Date and (b) that do not constitute or would not have constituted
Indebtedness as ofthe Closing Date.
"
Person
" means any natural person, corporation, limited liability company, trust,
joint venture,association, company, partnership, Governmental Authority or
other entity.
"
Plan
" means any employee pension benefitplan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated,would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"
PlanAsset Regulations
" means 29 CFR (s)
2510.3-101
et seq., as modified by Section 3(42) of ERISA.
"
Platform
" means Debt Domain, Intralinks, SyndTrak or a substantially similar
electronic transmission system.
"
Pro Forma Basis
" means with respect to the calculation of any ratio, test or covenant
hereunder (including, withoutlimitation, the calculation of the Consolidated
Leverage Ratio for purposes of determining the Applicable Margin), such ratio,
test or covenant being calculated after giving effect to (a) any Investment
permitted hereunder (including, for theavoidance of doubt, the Augusta Mill
Acquisition), (b) any Material Disposition, and (c) any assumption,
incurrence, repayment or other Disposition of Indebtedness (all of the
foregoing, including, for the avoidance of doubt, the Augusta MillAcquisition,
"
Applicable Transactions
") using, for purposes of determining such compliance, the historical
financial statements of all entities or assets so designated, acquired or sold
(to the extent available) and the consolidatedfinancial statements of the
Borrower and its Subsidiaries, which shall be reformulated as if all
Applicable Transactions during the Applicable Reference Period, or subsequent
to the Applicable Reference Period and on or prior to the date of
suchcalculation, had been consummated at the beginning of such period (and
shall include, with respect to any Acquisition permitted hereunder or Material
Disposition, any adjustments calculated in accordance with (and subject to the
requirements andlimitations of)
clause (i)
of the last sentence of the definition of "Consolidated EBITDA");
provided
that with respect
28
-------------------------------------------------------------------------------
to any assumption, incurrence, repayment or other Disposition of Indebtedness
(i) if such Indebtedness has a floating rate of interest, the interest expense
on such Indebtedness will becalculated as if the rate in effect on the date of
calculation had been the applicable rate for the entire period (taking into
account any Swap Obligations applicable to such Indebtedness if such Swap
Obligation has a remaining term as at the dateof calculation in excess of 12
months), (ii) interest on Capital Lease Obligations shall be deemed to accrue
at an interest rate reasonably determined by a Responsible Officer to be the
rate of interest implicit in such Capital Lease Obligation inaccordance with
GAAP, (iii) interest on any Indebtedness under a revolving credit facility
shall be based upon the average daily balance of such Indebtedness during the
applicable period and (iv) interest on Indebtedness that may beoptionally
determined at an interest rate based upon a factor of a prime or similar rate,
or other rate, shall be deemed to have been based upon the rate actually
chosen, or, if none, then based upon such optional rate as the Borrower may
designate.
"
Prohibited Transaction
" has the meaning set forth in Section 406 of ERISA and Section 4975(c) of the
Code.
"
Qualified Capital Stock
" means Capital Stock of the Borrower other than Disqualified Capital Stock.
"
Rabobank
" means Cooperatieve Rabobank U.A., New York Branch.
"
Rate Pricing Index
" has the meaning set forth in
Schedule 1.1(a)
.
"
Recovery Event
" means any settlement of or payment in respect of any property or casualty
insurance claim or anycondemnation proceeding relating to any asset of any
Credit Party (other than, while loans under the ABL Facility are outstanding,
assets that constitute ABL Priority Collateral).
"
Receivables and Related Assets
" means (a) accounts receivable (including all rights to payment created by or
arisingfrom the sales of goods, leases of goods or the rendition of services,
no matter how evidenced (including in the form of chattel paper) and whether
or not earned by performance), (b) any interest in such accounts receivable
and all collateralsecuring such accounts receivable, all contracts and
contract rights, purchase orders, security interests, financing statements or
other documentation in respect of such accounts receivable, any guarantees,
indemnities, warranties or otherobligations in respect of such accounts
receivable, any other assets that are customarily transferred or in respect of
which security interests are customarily granted in connection with receivable
purchase arrangements involving receivables similarto such accounts receivable
and any collections or proceeds of any of the foregoing and (c) bank account
or lock box maintained primarily for the purpose of receiving collections of
accounts receivables subject to a Permitted A/R FinanceTransaction.
"
Recipient
" means (a) the Administrative Agent and (b) any Lender, as applicable.
"
Register
" has the meaning assigned thereto in
Section
10.8(c)
.
"
Reinvestment Deferred Amount
" means, with respect to any Specified Disposition or Recovery Event, the
aggregate Net CashProceeds received by any Credit Party in connection
therewith that are not applied to prepay the Loans pursuant to
Section
2.11(b)
and/or
(c)
as a result of the Borrower's determination to reinvest such NetCash Proceeds
in the business of the Borrower or any of its Subsidiaries.
"
Related Parties
" means, with respect to anyPerson, such Person's Affiliates and the partners,
directors, officers, employees, agents, trustees, administrators, managers,
advisors and representatives of such Person and of such Person's Affiliates.
29
-------------------------------------------------------------------------------
"
Relevant Governmental Body
" means the Board and/or the Federal ReserveBank of New York, or a committee
officially endorsed or convened by the Board and/or the Federal Reserve Bank
of New York or any successor thereto.
"
Removal Effective Date
" has the meaning assigned thereto in
Section
9.6(b)
.
"
Required Commercial Bank Term Loan Facility Lenders
" means, at any time, Lenders having outstanding Loans and outstandingparticipat
ions under the Commercial Bank Term Loan Facility representing more than 50%
of the aggregate outstanding Loans under the Commercial Bank Term Loan
Facility of all Lenders. The Total Credit Exposure of any Defaulting Lender
shall bedisregarded in determining Required Commercial Bank Term Loan Facility
Lenders at any time. Notwithstanding the foregoing, "Required Commercial Bank
Term Loan Facility Lenders" shall comprise no fewer than two Lenders that are
notAffiliates of one another, unless (a) all Lenders that are not Defaulting
Lenders are Affiliates of one another or (b) there is only one Lender that is
not a Defaulting Lender.
"
Required Commitment Reduction
" has the meaning assigned thereto in
Section
2.4(a)
.
"
Required Farm Credit Facilities Lenders
" means, at any time, Lenders and, subject to
Section
10.8(d)
, Voting Participants having aggregate Commitments representing more than 50%
of the aggregate Term Revolver Commitments and outstanding Loans under the
Farm Credit Term Loan Facility or outstandingparticipations under the Farm
Credit Term Loan Facility of all Lenders and Voting Participants (in each
case, without duplication, and, for the avoidance of doubt, after taking into
account any reductions in any selling Lender's or VotingParticipant's voting
rights in accordance with
Section
10.8(d)
). The Total Credit Exposure of any Defaulting Lender (or any Defaulting
Voting Participant) shall be disregarded in determining Required Farm
CreditFacilities Lenders at any time. Notwithstanding the foregoing, "Required
Farm Credit Facilities Lenders" shall comprise no fewer than two Lenders that
are not Affiliates of one another, unless (a) all Lenders or Voting
Participantsthat are not Defaulting Lenders (or Defaulting Voting
Participants) are Affiliates of one another or (b) there is only one Lender
that is not a Defaulting Lender, and no Voting Participants at such time. With
respect to any matter requiring theapproval of Required Farm Credit Facilities
Lenders, it is understood that Voting Participants shall have the voting
rights specified in
Section
10.8(d)
as to such matter.
"
Required Lenders
" means, at any time, Lenders and, subject to
Section
10.8(d)
, Voting Participantshaving aggregate Commitments representing more than 50%
of the aggregate Term Revolver Commitments and outstanding Loans under the
Term Loan Facilities or outstanding participations under the Term Loan
Facilities of all Lenders and VotingParticipants (in each case, without
duplication, and, for the avoidance of doubt, after taking into account any
reductions in any selling Lender's or Voting Participant's voting rights in
accordance with
Section
10.8(d)
). The Total Credit Exposure of any Defaulting Lender (or any Defaulting
Voting Participant) shall be disregarded in determining Required Lenders at
any time. Notwithstanding the foregoing, "RequiredLenders" shall comprise no
fewer than two Lenders that are not Affiliates of one another, unless (a) all
Lenders or Voting Participants that are not Defaulting Lenders (or Defaulting
Voting Participants) are Affiliates of one another or(b) there is only one
Lender that is not a Defaulting Lender, and no Voting Participants at such
time. With respect to any matter requiring the approval of Required Lenders,
it is understood that Voting Participants shall have the voting rightsspecified
in
Section
10.8(d)
as to such matter.
"
Required Term Loan Facilities Lenders
" means,at any time, Lenders and, subject to
Section
10.8(d)
, Voting Participants having outstanding Loans and outstanding participations
under the Term Loan Facilities representing more than 50% of the aggregate
outstanding Loansor outstanding participations under the Term Loan Facilities
of all Lenders and Voting Participants (in each case, without duplication,
and, for the avoidance of doubt, after taking into account any reductions in
any selling Lender's or Voting
30
-------------------------------------------------------------------------------
Participant's voting rights in accordance with Section 10.8(d)). The Total
Credit Exposure of any Defaulting Lender (or any Defaulting Voting
Participant) shall be disregarded indetermining Required Term Loan Facilities
Lenders at any time. Notwithstanding the foregoing, "Required Term Loan
Facilities Lenders" shall comprise no fewer than two Lenders that are not
Affiliates of one another, unless (a) allLenders or Voting Participants that
are not Defaulting Lenders (or Defaulting Voting Participants) are Affiliates
of one another or (b) there is only one Lender that is not a Defaulting
Lender, and no Voting Participants at such time. Withrespect to any matter
requiring the approval of Required Term Loan Facilities Lenders, it is
understood that Voting Participants shall have the voting rights specified in
Section
10.8(d)
as to such matter.
"
Required Term Revolver Lenders
" means, at any time, Lenders and, subject to
Section
10.8(d)
,Voting Participants having aggregate Term Revolver Commitments representing
more than 50% of the aggregate Term Revolver Commitments (in each case,
without duplication, and, for the avoidance of doubt, after taking into
account any reductions in anyselling Lender's or Voting Participant's voting
rights in accordance with
Section
10.8(d)
). The Total Credit Exposure of any Defaulting Lender (or any Defaulting
Voting Participant) shall be disregarded indetermining Required Term Revolver
Lenders at any time. Notwithstanding the foregoing, "Required Term Revolver
Lenders" shall comprise no fewer than two Lenders that are not Affiliates of
one another, unless (a) all Lenders or VotingParticipants that are not
Defaulting Lenders (or Defaulting Voting Participants) are Affiliates of one
another or (b) there is only one Lender that is not a Defaulting Lender, and
no Voting Participants at such time. With respect to any matterrequiring the
approval of Required Term Revolver Lenders, it is understood that Voting
Participants shall have the voting rights specified in
Section
10.8(d)
as to such matter.
"
Requirement of Law
" means as to any Person, the Certificate of Incorporation and
By-Laws
or other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitor or a court or other
Governmental Authority, in each case applicableto or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"
RescindableAmount
" has the meaning assigned thereto in
Section
9.10
.
"
Reset Reference Point
" hasthe meaning assigned thereto in
Section
3.1(e)
.
"
Resignation Effective Date
" has the meaningassigned thereto in
Section
9.6(a)
.
"
Resolution Authority
" means an EEA Resolution Authorityor, with respect to any UK Financial
Institution, a UK Resolution Authority.
"
Responsible Officer
" means, as to anyPerson, the chief executive officer, president, chief
financial officer, controller, treasurer or assistant treasurer of such Person
or any other officer of such Person designated in writing by the Borrower and
reasonably acceptable to theAdministrative Agent;
provided
that, to the extent requested thereby, the Administrative Agent shall have
received a certificate of such Person certifying as to the incumbency and
genuineness of the signature of each such officer. Anydocument delivered
hereunder or under any other Loan Document that is signed by a Responsible
Officer of a Person shall be conclusively presumed to have been authorized by
all necessary corporate, partnership and/or other action on the part of
suchPerson and such Responsible Officer shall be conclusively presumed to have
acted on behalf of such Person.
"
RestrictedPayment
" has the meaning assigned thereto in
Section
7.5
.
31
-------------------------------------------------------------------------------
"
Restricted Period
" means the period commencing on the date of delivery offinancial statements
and a compliance certificate pursuant to
Sections 6.1(a)
and
(b)
and
Section
6.2(a)
for any fiscal quarter end or fiscal year end evidencing a Consolidated
Leverage Ratio of greaterthan 3.50 to 1.00 and ending on the date the Borrower
delivers financial statements and a compliance certificate pursuant to
Sections 6.1(a)
and
(b)
and
Section
6.2(a)
evidencing that the ConsolidatedLeverage Ratio is less than or equal to 3.50
to 1.00 as of the most recently ended fiscal quarter or fiscal year;
provided
that, in no event shall a Restricted Period be less than the period of two
consecutive fiscal quarters covered by suchfinancial statements and compliance
certificates.
"
S&P
" means Standard & Poor's Financial ServicesLLC, a subsidiary of S&P Global
Inc., and any successor thereto.
"
Sanctioned Country
" means, at any time, a country,region or territory which is itself the
subject or target of any Sanctions (at the time of this Agreement, the
so-called
Donetsk People's Republic, the
so-called
Luhansk People's Republic, the Crimea Region of Ukraine, Cuba, Iran, North
Korea and Syria).
"
Sanctioned Person
"means, at any time, (a) any Person listed in any Sanctions-related list of
designated Persons maintained by the Office of Foreign Assets Control of the
U.S. Department of the Treasury, the U.S. Department of State, the United
Nations SecurityCouncil, the European Union, any European Union member state,
His Majesty's Treasury of the United Kingdom or other relevant sanctions
authority, (b) any Person operating, organized or resident in a Sanctioned
Country, (c) any Personowned or controlled by any such Person or Persons
described in the foregoing
clauses (a)
or
(b),
or (d) any Person otherwise the subject of any Sanctions.
"
Sanctions
" means all economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to timeby (a) the U.S. government,
including those administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury or by the U.S. Department of State, or (b) the
United Nations Security Council, the European Union, anyEuropean Union member
state, His Majesty's Treasury of the United Kingdom or other relevant
sanctions authority.
"
SEC
" means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principalfunctions.
"
Secured Parties
" means, collectively, the Administrative Agent, the Lenders, each
co-agent
or
sub-agent
appointed by the Administrative Agent from time to time pursuant to
Section
9.5
, any other holder from time to time of any ofany Obligations and, in each
case, their respective successors and permitted assigns.
"
Security Documents
" means thecollective reference to the Guarantee and Collateral Agreement and
each other agreement or writing pursuant to which any Credit Party pledges or
grants a security interest in any property or assets securing the Obligations.
"
Seller
" means Graphic Packaging International, LLC, a Delaware limited liability
company.
"
SOFR
" means the secured overnight financing rate as administered by the Federal
Reserve Bank of New York (or a successoradministrator) on the Federal Reserve
Bank of New York's website.
"
SOFR Administrator
" means CME Group BenchmarkAdministration Limited (CBA) (or a successor
administrator of Term SOFR selected by the Administrative Agent in its
reasonable discretion).
"
SOFR Monthly Variable Base Rate
" means, for any day during a given month, the interest rate calculated based on
clause(b)
of the definition of Term SOFR, rounded up to the nearest .05 percent;
provided that the calculation of the SOFR Monthly Variable Base Rate shall be
made on the first day of each month and remain constant for such month.
32
-------------------------------------------------------------------------------
"
SOFR Monthly Variable Base Rate Loan
" means any Loan bearing interest atthe SOFR Monthly Variable Base Rate as
provided in
Section
3.1(a)
.
"
Solvent
" and"
Solvency
" mean, with respect to any Person on any date of determination, that on such
date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, ofsuch Person,
(b) the present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Persondoes
not intend to incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature, (d) such Person is not engaged in
business or a transaction, and is not about to engage in business or
atransaction, for which such Person's property would constitute an
unreasonably small capital, and (e) such Person is able to pay its debts and
liabilities, contingent obligations and other commitments as they mature in
the ordinary courseof business. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual ormatured liability.
"
Specified Disposition
" means any Disposition pursuant to
Sections 7.4(g)
,
7.4(n)
or
7.4(o)
(other than to the extent such Dispositions constitute ABL Priority Collateral).
"
Specified Acquisition AgreementRepresentations
" means the representations and warranties made by the Seller with respect to
the Seller, the Transferred Assets (as defined in the Augusta Acquisition
Agreement) or the Transferred Business (as defined in the AugustaAcquisition
Agreement) in the Augusta Acquisition Agreement, but only to the extent that
the Borrower (or its Subsidiaries) have the right to terminate the Borrower's
(or such Subsidiaries') obligations under the Augusta AcquisitionAgreement or
decline to consummate the Augusta Mill Acquisition as a result of a breach of
any such representation or warranty in the Augusta Acquisition Agreement.
"
Specified Representations
" means the representations and warranties of the Credit Parties in
Sections 5.3(a)
,
Section
5.4(a)
,
Section
5.5
(as to Requirements of Law and organizational documents only),
Section
5.11
,
Section
5.14
,
Section
5.19
(subject to
Section
4.1(d)
),
Section
5.20
and the last sentence of
Section
5.21
.
"
Subordinated Indebtedness
" means the collective reference to any Indebtedness incurred by the Borrower
or any of itsSubsidiaries that is subordinated in right and time of payment
and with respect to lien priority to the Obligations on terms and conditions
satisfactory to the Administrative Agent.
"
Subsidiary
" means as to any Person, a corporation, partnership, limited liability
company or other entity of which shares ofstock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency)
to elect a majority of the board of directors or other managersof such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through
one or more intermediaries, or both, by such Person. Unless otherwise
qualified, references to"Subsidiary" or "Subsidiaries" herein shall refer to
those of the Borrower.
"
Subsidiary Guarantors
"means, collectively, all direct and indirect Subsidiaries of the Borrower
(other than Foreign Subsidiaries and Excluded Subsidiaries) in existence on
the Closing Date or which become a party to the Guarantee and Collateral
Agreement pursuant to
Section
6.9
.
33
-------------------------------------------------------------------------------
"
Successor Rate
" means initially the Daily Simple SOFR Rate or, if aBenchmark Transition
Event has occurred with respect thereto, the Benchmark Replacement.
"
Supplier Agreement
" means thatcertain Supplier Agreement dated as of June 11, 2019 between the
Borrower and Citibank, N.A and any branch, subsidiary, or affiliate of
Citibank acting as a purchaser thereunder, solely with respect to the Buyer
identified on the pricingschedule thereto on the Closing Date.
"
Swap Agreement
" means any agreement with respect to any swap, forward, future orderivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of
economic,financial or pricing risk or value or any similar transaction or any
combination of these transactions; provided that no phantom stock or similar
plan providing for payments only on account of services provided by current or
former directors,officers, employees or consultants of the Borrower or any of
its Subsidiaries shall be a "Swap Agreement".
"
SwapObligation
" means, with respect to any Person, any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modificationsthere
of and substitutions therefor), under (a) any and all Swap Agreements, and (b)
any and all cancellations, buy backs, reversals, terminations or assignments
of any Swap Agreement transaction.
"
Taxes
" means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding),assessments, fees or other charges
imposed by any Governmental Authority, including any interest, fines,
additions to tax or penalties applicable thereto.
"
Tax Incentive Transaction
" means any arrangement between any Credit Party and a Governmental Authority
or entity (includingany development authority) for the purpose of providing
property tax incentives to such Credit Party structured as a Sale-Leaseback
Transaction whereby such Governmental Authority or entity (a) acquires
property from or on behalf of such CreditParty, (ii) leases such property back
to a Credit Party (and such leasehold interest is pledged to the Administrative
Agent pursuant to documentation in form and substance reasonably satisfactory
to the Administrative Agent), (iii) if and tothe extent such Governmental
Authority issues the bonds to finance such acquisition, 100% of such bonds are
purchased and held by a Credit Party, (iv) the rental payments on the lease
(disregarding any amount that is concurrently repaid to aCredit Party in the
form of debt service on any bonds or otherwise) does not exceed amounts such
Credit Party would have paid in taxes and other amounts had the Sale-Leaseback
Transaction not occurred, (v) the use of any assets by the Borroweror any of
its Subsidiaries is not limited in any material respect in connection with
such transaction, (vi) the aggregate amount of all such bonds and other
obligations of the Borrower and its Subsidiaries shall not exceed $350,000,000
at anyone time outstanding and (vii) such Credit Party has the option to
terminate its lease and reacquire the property for nominal consideration
(disregarding any additional consideration that is concurrently repaid to a
Credit Party in the form ofrepayment of any bonds or otherwise) at any time;
provided
,
that
, if at any time any of the foregoing conditions shall cease to be satisfied,
such transaction shall cease to be a Tax Incentive Transaction. For purposes
of thisdefinition, "Sale-Leaseback Transaction" means any arrangements with
any Person providing for the leasing by a Credit Party or subsidiary of real
or personal property which has been or is to be sold or transferred by such
Credit Party orsuch Subsidiary to such Person or to any other Person to whom
funds have been or are to be advanced by such person in connection therewith.
For the avoidance of doubt, the transactions contemplated by the Augusta Mill
Bond Documents (as defined inthe Augusta Acquisition Agreement) shall
constitute a Tax Incentive Transaction.
"
Term Loan Commitments
" means theaggregate Farm Credit Term Loan Commitments and Commercial Bank
Term Loan Commitments of all the Lenders in effect at such time.
34
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"
Term Loan Facility
" means the Farm Credit Term Loan Facility and/or theCommercial Bank Term Loan
Facility, as the context requires.
"
Term Revolver Commitment
" means, as to each Farm CreditLender that is a Lender, its obligation to make
Term Revolver Loans to the Borrower pursuant to
Section
2.1(c)
, in an aggregate principal amount at any one time outstanding not to exceed
the amount set forth opposite suchFarm Credit Lender's name on
Schedule 1.1(b)
or in the Assignment and Assumption pursuant to which such Farm Credit Lender
becomes a party hereto or in any documentation executed by such Farm Credit
Lender pursuant to
Section
3.13
, as applicable, in each case, as such amount may be adjusted from time to
time in accordance with this Agreement, including as may be reduced pursuant to
Section
2.4
. The aggregateTerm Revolver Commitments as of the Closing Date are
$270,000,000.
"
Term Revolver Credit Facility Outstandings
" means,with respect to Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or
repayments of Loans occurring on such date.
"
Term Revolver Facility
" means the term revolver credit facility established pursuant to
Article II
.
"
Term Revolver Loan
" has the meaning assigned thereto in
Section
2.1(c)
.
"
Term SOFR
" means:
(a) for any Interest Period with respect to a Term SOFR Loan, the rate per
annum equal to the Term SOFR Screen Rate two U.S.Government Securities
Business Days prior to the commencement of such Interest Period with a term
equivalent to such Interest Period;
provided
,
that
, if the rate is not published prior to 11:00 a.m. on such determination date
and aBenchmark Transition Event has not occurred with respect thereto, then
Term SOFR means the Term SOFR Screen Rate on the first U.S. Government
Securities Business Day immediately prior thereto; and
(b) for any interest calculation with respect to a SOFR Monthly Variable Base
Rate Loan on any date, the rate per annum equalto the Term SOFR Screen Rate
two U.S. Government Securities Business Days prior to such date with a term of
one month commencing on that day;
provided
,
that
, if the rate is not published prior to 11:00 a.m. on such determination
dateand a Benchmark Transition Event has not occurred with respect thereto,
then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government
Securities Business Day immediately prior thereto;
provided
that if the Term SOFR determined in accordance with either of the foregoing
provisions (a) or (b) of this definitionwould otherwise be less than zero, the
Term SOFR shall be deemed zero for purposes of this Agreement.
"
Term SOFR Loan
"means a Loan that bears interest based on the Term SOFR Rate as provided in
Section
3.1(a)
.
"
Term SOFRRate
" means the interest rate calculated based on
clause (a)
of the definition of Term SOFR.
"
Term SOFRScreen Rate
" means the forward-looking SOFR term rate administered by the SOFR
Administrator and published on the applicable Reuters screen page (or such
other commercially available source providing such quotations as may be
designated bythe Administrative Agent from time to time).
35
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"
Total Credit Exposure
" means, as to any Lender at any time, sum of theunused Commitment and the
aggregate principal amount of outstanding Loans of such Lender at such time.
"
Total Term RevolverCredit Exposure
" means, as to any Lender at any time, sum of the unused Term Revolver
Commitment and the aggregate principal amount of outstanding Term Revolver
Loans of such Lender at such time.
"
Transactions
" means, collectively, (a) the consummation of the Augusta Mill Acquisition,
(b) the entry into anamendment to the ABL Facility, (c) the entry into this
Agreement, (d) the Loans made or continued on the Closing Date and (e) the
payment of costs, fees, expenses, charges and other amounts incurred in
connection with the foregoing.
"
Transfer Certificate
" means a certificate executed by an officer of AgWest setting forth the name
of the proposedassignee, the amount of the assignment, and any other material
terms relating to the proposed assignment not otherwise set forth in the
documentation required by this Agreement to be submitted to the Borrower in
connection therewith and certifyingto the Borrower that, after reasonable
investigation and due diligence, AgWest has used its commercially reasonable
efforts to identify a Farm Credit Lender and consummate the relevant
assignment with a Farm Credit Lender;
provided
, that,AgWest shall be deemed to have undertaken a reasonable investigation
and due diligence and used its commercially reasonable efforts to comply with
the above if AgWest shall have drawn upon its existing Farm Credit Lender
relationships based upon itscustomary practices in place at such time.
"
UCC
" means the Uniform Commercial Code as in effect in the State of NewYork, as
amended or modified from time to time, unless the context suggests the
application of the Uniform Commercial Code of a different state.
"
UK Financial Institution
" means any BRRD Undertaking (as such term is defined under the PRA Rulebook
(as amended from timeto time) promulgated by the United Kingdom Prudential
Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook
(as amended from time to time) promulgated by the United Kingdom Financial
Conduct Authority, which includes certaincredit institutions and investment
firms, and certain affiliates of such credit institutions or investment firms.
"
UK ResolutionAuthority
" means the Bank of England or any other public administrative authority
having responsibility for the resolution of any UK Financial Institution.
"
United States
" means the United States of America.
"
Unrestricted Cash
" means unrestricted cash and Cash Equivalents owned by any Group Member and
not controlled by or subjectto any Lien or other preferential arrangement in
favor of any creditor (other than Liens created under the Security Documents
or permitted by
Section
7.2(h)(iii)
and
(u)
).
"
U.S. Government Securities Business Day
" means any day except for (a) a Saturday, (b) a Sunday or (c) a dayon which
the Securities Industry and Financial Markets Association recommends that the
fixed income departments of its members be closed for the entire day for
purposes of trading in United States government securities.
"
U.S. Person
" means any Person that is a "United States person" as defined in Section
7701(a)(30) of the Code.
"
U.S. Tax Compliance Certificate
" has the meaning assigned thereto in
Section
3.11(g)
.
36
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"
Voting Participant
" has the meaning specified in
Section
10.8(d)
.
"
Voting Participant Notice
" has the meaning specified in
Section
10.8(d)
.
"
Wholly-Owned Subsidiary
" means as to any Person, any other Person that allof the Capital Stock of
such Person (except for directors' qualifying shares or other shares required
by Applicable Law to be owned by a Person other than the other Person and/or
one or more of its Wholly-Owned Subsidiaries) is, directly orindirectly, owned
or controlled by the other Person and/or one or more of its Wholly-Owned
Subsidiaries .
"
WithdrawalLiability
" means liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.
"
Withholding Agent
" means any Credit Party and the Administrative Agent.
"
Write-Down and Conversion Powers
" means, (a) with respect to any EEA Resolution Authority, the write-down
andconversion powers of such EEA Resolution Authority from time to time under
the
Bail-In
Legislation for the applicable EEA Member Country, which write-down and
conversion powers are described in the EU
Bail-In
Legislation Schedule, and (b) with respect to the United Kingdom, any powers
of the applicable Resolution Authority under the
Bail-In
Legislation to cancel,reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which that
liability arises, to convert all or part of that liability into shares,
securities or obligations of that person or anyother person, to provide that
any such contract or instrument is to have effect as if a right had been
exercised under it or to suspend any obligation in respect of that liability
or any of the powers under that
Bail-In
Legislation that are related to or ancillary to any of those powers.
Section
1.2
Other Definitions and Provisions
. With reference to this Agreement and each other LoanDocument, unless
otherwise specified herein or in such other Loan Document: (a) the definitions
of terms herein shall apply equally to the singular and plural forms of the
terms defined, (b) whenever the context may require, any pronounshall include
the corresponding masculine, feminine and neuter forms, (c) the words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation", (d) theword "will" shall be construed to have the
same meaning and effect as the word "shall", (e) any reference herein to any
Person shall be construed to include such Person's permitted successors and
assigns, (f) the words"herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not
to any particular provision hereof, (g) all references herein to Articles,Sectio
ns, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (h) the term
"documents" includes any and all instruments, documents, agreements,
certificates,notices, reports, financial statements and other writings,
however evidenced, whether in physical or electronic form and (i) in the
computation of periods of time from a specified date to a later specified
date, the word "from" means"from and including;" the words "to" and "until"
each mean "to but excluding;" and the word "through" means "to and including".
For all purposes under the Loan Documents, in connection withany division or
plan of division under Delaware law (or any comparable event under a different
jurisdiction's laws): (a) if any asset, right, obligation or liability of any
Person becomes the asset, right, obligation or liability of a differentPerson,
then it shall be deemed to have been transferred from the original Person to
the subsequent Person, and (b) if any new Person comes into existence, such
new Person shall be deemed to have been organized on the first date of
itsexistence by the holders of its Capital Stock at such time.
37
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Section
1.3
Accounting Terms
. As used herein and inthe other Loan Documents, and any certificate or other
document made or delivered pursuant hereto or thereto, (i) accounting terms
relating to any Group Member not defined in
Section
1.1
and accounting terms partlydefined in
Section
1.1
, to the extent not defined, shall have the respective meanings given to them
under GAAP (provided that all terms of an accounting or financial nature used
herein shall be construed, and allcomputations of amounts and ratios referred
to herein shall be made, without giving effect to (x) any election under
Accounting Standards Codification
825-10-25
(previously referred to as Statement of Financial Accounting Standards 159)
(or any other Accounting Standards Codification or Financial Accounting
Standard having a similar result or effect) to value any Indebtedness or other
liabilities of theBorrower or any Subsidiary at "fair value", as defined
therein and (y) any treatment of Indebtedness in respect of convertible debt
instruments under Accounting Standards Codification
470-20
(orany other Accounting Standards Codification or Financial Accounting
Standard having a similar result or effect) to value any such Indebtedness in
a reduced or bifurcated manner as described therein, and such Indebtedness
shall at all times be valuedat the full stated principal amount thereof), (ii)
the words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation", (iii) the word "incur" shall beconstrued
to mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words "incurred" and "incurrence" shall have correlative
meanings), (iv) the words "asset" and "property"shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights,(v) references to agreements
or other Contractual Obligations shall, unless otherwise specified, be deemed
to refer to such agreements or other Contractual Obligations as amended,
supplemented, restated or otherwise modified from time to timeand (vi) the
concept of "letters of credit" shall be construed to include banker's
acceptances. Each Applicable Transaction by the Borrower and its Subsidiaries
that is consummated during any Reference Period shall, for purposesof
determining compliance with the financial covenants set forth in Section 7.17,
for purposes of determining the Applicable Margin and for purposes of any
other calculation of any other ratio or test hereunder (including the
ConsolidatedLeverage Ratio), be given effect on a Pro Forma Basis as of the
first day of such Reference Period.
Section
1.4
UCC Terms
. Terms defined in the UCC in effect on the Closing Date and not otherwise
defined herein shall, unless the context otherwise indicates, have the
meanings provided by those definitions. Subject to the foregoing, the
term"UCC" refers, as of any date of determination, to the UCC then in effect.
Section
1.5
Rounding
. Any financial ratios required to be maintained pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places
bywhich such ratio or percentage is expressed herein and rounding the result
up or down to the nearest number (with a
rounding-up
if there is no nearest number).
Section
1.6
References to Agreement and Laws
. Unless otherwise expressly provided herein, (a) anydefinition or reference
to formation documents, governing documents, agreements (including the Loan
Documents) and other contractual documents or instruments shall be deemed to
include all subsequent amendments, restatements, extensions, supplementsand
other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not
prohibited by any Loan Document; and (b) any definition or reference to any
Applicable Law,including the Code, the Commodity Exchange Act, ERISA, the
Exchange Act, the PATRIOT Act, the Securities Act of 1933, the UCC, the
Investment Company Act of 1940, the Interstate Commerce Act, the Trading with
the Enemy Act of the United States orany of the foreign assets control
regulations of the United States Treasury Department, shall include all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Applicable Law.
Section
1.7
Times of Day
. Unless otherwise specified, all references herein to times of day shall
bereferences to Eastern time (daylight or standard, as applicable).
38
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Section
1.8
Interest Rates
. The Administrative Agentdoes not warrant, nor accept responsibility, nor
shall the Administrative Agent have any liability with respect to the
administration, submission or any other matter related to any reference rate
referred to herein or with respect to any rate usedto calculate interest
pursuant to
Section
3.1(a)
for purposes of a Base Rate Loan, Term SOFR Loan, a SOFR Monthly Variable Base
Rate Loan or Daily Simple SOFR Loan (including, for the avoidance of doubt,
the selection ofsuch rate and any related spread or other adjustment) that is
an alternative or replacement for or successor to any such rate (including,
without limitation, any Successor Rate) (or any component of any of the
foregoing) or the effect of any of theforegoing, or of any Conforming Changes.
The Administrative Agent and its affiliates or other related entities may
engage in transactions or other activities that affect any reference rate
referred to herein, or any alternative, successor orreplacement rate
(including, without limitation, any Successor Rate) (or any component of any
of the foregoing) or any related spread or other adjustments thereto, in each
case, in a manner adverse to the Borrower. The Administrative Agent mayselect
information sources or services in its reasonable discretion to ascertain any
reference rate referred to herein or any alternative, successor or replacement
rate (including, without limitation, any Successor Rate) (or any component of
any ofthe foregoing), in each case pursuant to the terms of this Agreement,
and shall have no liability to the Borrower, any Lender or any other person or
entity for damages of any kind, including direct or indirect, special,
punitive, incidental orconsequential damages, costs, losses or expenses
(whether in tort, contract or otherwise and whether at law or in equity), for
any error or other action or omission related to or affecting the selection,
determination, or calculation of any rate (orcomponent thereof) provided by
any such information source or service. For the avoidance of doubt, this
Section
1.8
does not alter or impair the rights and obligations of the Administrative
Agent otherwise expressly setforth in this Agreement.
Section
1.9
Guarantees
. Unless otherwise specified, the amount of anyGuarantee shall be the lesser
of the principal amount of the obligations guaranteed and still outstanding
and the maximum amount for which the guaranteeing Person may be liable
pursuant to the terms of the instrument embodying such Guarantee.
Section
1.10
Covenant Compliance Generally
. For purposes of determining compliance under
ArticleVII
, any amount in a currency other than Dollars will be converted to Dollars in
a manner consistent with that used in calculating Consolidated Net Income in
the most recent annual financial statements of the Borrower and its
Subsidiariesdelivered pursuant to
Section
6.1(a)
. Notwithstanding the foregoing, for purposes of determining compliance with
Article VII
, with respect to any amount in a currency other than Dollars, no breach of
any basketcontained in such sections shall be deemed to have occurred solely
as a result of changes in rates of exchange occurring after the time of such
applicable incurrence;
provided
that for the avoidance of doubt, the foregoing provisions of this
Section
1.10
shall otherwise apply to such Sections, including with respect to determining
whether any Indebtedness or Investment may be incurred at any time under such
Sections.
Section
1.11
Conforming Changes Relating to Term SOFR
.
In connection with the use oradministration of Term SOFR, the Administrative
Agent will have the right to make Conforming Changes from time to time and,
notwithstanding anything to the contrary contained herein or in any other Loan
Document, any amendments implementing suchConforming Changes will become
effective without any further action or consent of any other party to this
Agreement or any other Loan Document. The Administrative Agent will promptly
notify the Borrower and the Lenders of the effectiveness ofany Conforming
Changes in connection with the use or administration of Term SOFR.
Section
1.12
LimitedCondition Transactions
. Notwithstanding anything in this Agreement or any Loan Document to the
contrary, when determining the accuracy of any representation or warranty in
connection with a Limited Condition Transaction or whether anyDefault or Event
of Default has occurred, is continuing or would result from any action, the
date of determination of the accuracy of such
39
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representation or warranty (but taking into account any earlier date specified
therein) or whether any Default or Event of Default has occurred, is
continuing or would result therefrom shall, atthe option of the Borrower (the
Borrower's election to exercise such option in connection with any Limited
Condition Acquisition, an "
LCT Election
"), be deemed to be the date the definitive agreements for such Limited
ConditionTransaction are entered into (the "
LCT Test Date
"). Upon such LCT Election, such representations and warranties and absence of
defaults shall be calculated as if such Limited Condition Transaction or other
transactions had occurredat the beginning of the most recent Applicable
Reference Period ending prior to the LCT Test Date for which financial
statements are available and, if, on a Pro Forma Basis after giving effect to
such Limited Condition Transaction and the othertransactions to be entered
into in connection therewith (including any incurrence of Indebtedness and the
use of proceeds thereof), the Borrower could have taken such action on the
relevant LCT Test Date in compliance with the applicable provisions,such
provisions shall be deemed to have been complied with. For the avoidance of
doubt, (i) if any of such representations and warranties or absence of
defaults are breached as a result of a change in facts and circumstances or
other provisionsat or prior to the consummation of the relevant Limited
Condition Transaction, such representations and warranties and absence of
defaults will not be deemed to have been breached, or otherwise failed, as a
result of such changed circumstancessolely for purposes of determining whether
the Limited Condition Transaction and any related transactions is permitted
hereunder and (ii) compliance with such conditions shall not be tested at the
time of consummation of such Limited ConditionTransaction.
ARTICLE II.
CREDIT FACILITIES
Section
2.1
The Credit Facilities
.
(a)
Farm Credit Term Loan Facility
. Subject to the terms and conditions of this Agreement and the other
LoanDocuments, and in reliance upon the representations and warranties set
forth in this Agreement and the other Loan Documents, each applicable Lender
severally agrees to make its portion of a term loan (the "
Farm Credit Term Loan
") tothe Borrower in Dollars on the Closing Date, in an aggregate amount not
to exceed the amount of such Lender's Commitment Percentage of the aggregate
principal amount of the Farm Credit Term Loan. Amounts borrowed under this
Section
2.1(a)
and repaid or prepaid may not be reborrowed. The Farm Credit Term Loan
Commitments shall automatically terminate upon the making of the Farm Credit
Term Loan on the Closing Date.
(b)
Commercial Bank Term Loan Facility
. Subject to the terms and conditions of this Agreement and the other
LoanDocuments, and in reliance upon the representations and warranties set
forth in this Agreement and the other Loan Documents, each applicable Lender
severally agrees to make its portion of a term loan (the "
Commercial Bank TermLoan
") to the Borrower in Dollars on the Closing Date, in an aggregate amount not
to exceed the amount of such Lender's Commitment Percentage of the aggregate
principal amount of the Commercial Bank Term Loan. Amounts borrowed underthis
Section
2.1(b)
and repaid or prepaid may not be reborrowed. The Commercial Bank Term Loan
Commitments shall automatically terminate upon the making of the Commercial
Bank Term Loan on the Closing Date.
(c)
Term Revolver Loans
. Subject to the terms and conditions of this Agreement and the other Loan
Documents, andin reliance upon the representations and warranties set forth in
this Agreement and the other Loan Documents, each applicable Lender severally
agrees to make loans (each such loan, a "
Term Revolver Loan
") to the Borrower in Dollarsfrom time to time from the Closing Date to the
Maturity Date as requested by the Borrower in accordance with the terms
40
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of
Section
2.2
;
provided
that the Term Revolver Credit Facility Outstandings shall not exceed the
aggregate amount of the Term Revolver Commitments of all Lendersand the Total
Term Revolver Credit Exposure of any Lender shall not at any time exceed such
Lender's Term Revolver Commitment. Each Term Revolver Loan by a Lender shall
be in a principal amount equal to such Lender's Commitment Percentageof the
aggregate principal amount of Term Revolver Loans requested on such occasion.
Subject to the terms and conditions hereof, the Borrower may borrow, repay and
reborrow Term Revolver Loans hereunder until the Maturity Date.
(d)
Accordion Option
. (i) The Borrower may from time to time request an increase in the aggregate
amount ofthe Term Revolver Facility (each such increase, an "
Accordion Increase
"), in each case in accordance with this
Section
2.1(d)
;
provided
,
that
, (x) the aggregate principal amount of allAccordion Increases made pursuant
to this
Section
2.1(d)
shall not exceed $60,000,000 (the "
Maximum Aggregate Increase Amount
"), (y) each requested Accordion Increase shall not be less than $20,000,000
or awhole multiple of $1,000,000 in excess thereof or, if less, the entire
remaining unused accordion amount and (z) the aggregate Term Revolver
Commitments after giving effect to any Accordion Increase hereunder shall not
exceed $330,000,000.
(ii)
Increasing Lenders; New Lenders
.
(A)
Offer to Lenders or New Lenders
. The Borrower may offer to one or more Farm Credit Lenders that are Lenders
andVoting Participants, without duplication, or new lenders that would be
Eligible Assignees, the opportunity (but not the obligation), in such amounts
as the Borrower may determine, to participate in the Accordion Increase by
increasing such FarmCredit Lender's Commitment or, in the case of a new
lender, by issuing a Commitment under the Term Revolver Facility. The Borrower
shall first offer such Farm Credit Lenders and Voting Participants, without
duplication, the opportunity toparticipate in any Accordion Increase prior to
making such offer to new lenders, but no such Farm Credit Lender and Voting
Participants, without duplication, shall be obligated to participate in any
such Accordion Increase.
(B)
Increasing Lenders
. Each of the current Lenders increasing its Term Revolver Commitment in
connection with anAccordion Increase (each an "
Increasing Lender
") shall confirm such agreement pursuant to an acknowledgement in a form
reasonably acceptable to the Administrative Agent, signed by it and the
Borrower and delivered to theAdministrative Agent.
(C)
New Lenders
. Each new lender (if any) joining this Agreement to provide a Term
RevolverCommitment in connection with an Accordion Increase (each a "
New Lender
") shall be subject to the approval of the Borrower and the Administrative
Agent (which consent shall not be unreasonably withheld).
(D)
New Lender Joinder
. Each New Lender shall execute a lender joinder in a form reasonably
acceptable to theAdministrative Agent.
(iii)
Facility Increase Notice
. If one or more subscriptions to participate in a requestedAccordion Increase
are obtained, the Administrative Agent shall provide to each applicable Lender
a notice setting forth (i) the amount and terms of the Accordion Increase and,
after giving effect thereto, the aggregate Commitments and(ii) the effective
date of the Accordion Increase.
41
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(iv)
Conditions to and Implementation of an Accordion Increase
. Onthe effective date of an Accordion Increase:
(A)
Notes; Corporate Authorization; Payment of Fees
. The Borrowershall (x) execute and deliver a replacement promissory note for
any Increasing Lender that may require one, and (y) pay to the Administrative
Agent (and, if applicable, the Farm Credit Facilities Lead Arranger) such fees
as may bedescribed in any applicable fee letter, to be retained by the
Administrative Agent (and, if applicable, the Farm Credit Facilities Arranger)
or distributed to other Lenders subscribing to the Accordion Increase, as
provided therein, all of whichshall be conditions to effectiveness of the
Accordion Increase;
(B)
Records
. The Administrative Agent shall recordin the Register the new or adjusted
Term Revolver Commitment and Commitment Percentage of each Lender, after
giving effect to the Accordion Increase;
(C)
Confirmation
. The Administrative Agent shall confirm, in writing, that the Accordion
Increase has become effectiveand that the aggregate Commitments have been
increased by the amount thereof; and
(D)
Borrower Certificate
. As acondition precedent to the effectiveness of an Accordion Increase, the
Borrower shall deliver to the Administrative Agent a certificate of the
Borrower (i) certifying that, immediately before and upon giving effect to the
Accordion Increase,the conditions set forth in
Section
4.2
(but, in the case of a Limited Condition Transaction, subject to
Section
1.12
) are satisfied and (ii) certifying and attaching all necessaryresolutions,
consents and/or approvals of the Borrower approving or consenting to such
Accordion Increase.
(v)
Terms ofAccordion Increase
. For the avoidance of doubt, each commitment increase and/or new commitment
made in connection with an Accordion Increase to the existing Term Revolver
Facility shall constitute an applicable Term Revolver Commitmenthereunder,
each loan made in connection with an Accordion Increase to the existing Term
Revolver Facility shall constitute a Term Revolver Loan hereunder, and each
such commitment and loan shall be subject to the same terms and conditions as
allother Term Revolver Commitments and Term Revolver Loans.
Section
2.2
Procedure for Advances ofLoans
.
(a)
Requests for Borrowing
. The Borrower shall give the Administrative Agent irrevocable priorwritten
notice substantially in the form of
Exhibit
B
(a "
Notice of Borrowing
") not later than 1:00 p.m. (i) on the same Business Day as each SOFR Monthly
Variable Base Rate Loanor Base Rate Loan, (ii) at least three Business Days
before each Term SOFR Loan and (iii) as set forth on
Schedule 1.1(a)
for any Fixed Rate Loan, of its intention to borrow, specifying (A) the date
of such borrowing, whichshall be a Business Day, (B) the amount of such
borrowing, which shall be, (x) with respect to SOFR Monthly Variable Base Rate
Loans and Base Rate Loans in an aggregate principal amount of $3,000,000 or a
whole multiple of $1,000,000 inexcess thereof (if the then aggregate Term
Revolver Commitments are less than $1,000,000, such lesser amount) and (y)
with respect to Term SOFR Loans and Fixed Rate Loans in an aggregate principal
amount of $5,000,000 or a whole multiple of$1,000,000 in excess thereof (if
the then aggregate Term Revolver Commitments are less than $1,000,000, such
lesser amount), (C) whether the Loans are
42
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to be Term SOFR Loans, SOFR Monthly Variable Base Rate Loans, Fixed Rate Loans
or Base Rate Loans and (D) in the case of a Term SOFR Loan or a Fixed Rate
Loan, the duration of the InterestPeriod applicable thereto. If the Borrower
fails to specify a type of Loan in a Notice of Borrowing, then (i) in the case
of Term Revolver Loans or Farm Credit Term Loans, the applicable Loans shall
be made as SOFR Monthly Variable Base RateLoans or (ii) in the case of
Commercial Bank Term Loans, the applicable Loans shall be made as Base Rate
Loans. If the Borrower requests a borrowing of Term SOFR Loans in any such
Notice of Borrowing, but fails to specify an Interest Period, itwill be deemed
to have specified an Interest Period of one month. A Notice of Borrowing
received after 1:00 p.m. shall be deemed received on the next Business Day.
The Administrative Agent shall promptly notify the Lenders of each Notice
ofBorrowing.
(b)
Disbursement of Loans
. Not later than 1:00 p.m. on the proposed borrowing date, each Lenderwill
make available to the Administrative Agent, for the account of the Borrower,
at the Administrative Agent's Office in funds immediately available to the
Administrative Agent, such Lender's Commitment Percentage of the Loans to be
madeon such borrowing date. The Administrative Agent shall promptly disburse
the proceeds received and the Borrower hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section inimmediately available funds by crediting or wiring
such proceeds to the deposit account of the Borrower identified in the most
recent notice substantially in the form attached as
Exhibit C
(a "
Notice of AccountDesignation
") delivered by the Borrower to the Administrative Agent or as may be
otherwise agreed upon by the Borrower and the Administrative Agent from time
to time. Subject to
Section
3.7
hereof, theAdministrative Agent shall not be obligated to disburse the portion
of the proceeds of any Loan requested pursuant to this Section to the extent
that any Lender has not made available to the Administrative Agent its
Commitment Percentage of suchLoan.
Section
2.3
Repayment and Prepayment of Credit Facilit
ies
.
(a)
Repayment
.
(i)
Term Revolver Loans
. The Borrower hereby agrees to repay to the applicable Lenders the
outstanding principal amountof all Term Revolver Loans in full on the
applicable Maturity Date, together with all accrued but unpaid interest
thereon.
(ii)
Farm Credit Term Loans
. Beginning on the first day of the third full fiscal quarter after the
Closing Date, theBorrower shall repay to the applicable Lenders the principal
amount of Farm Credit Term Loans in successive quarterly installments of
principal, payable on the first day of each fiscal quarter, in an amount equal
to $2,000,000. The aggregateprincipal payment due on the applicable Maturity
Date shall be in the amount necessary to pay all remaining unpaid principal on
the Farm Credit Term Loans.
(iii)
Commercial Bank Term Loans
. Beginning on the first day of the third full fiscal quarter after the
Closing Date,the Borrower shall repay to the applicable Lenders the principal
amount of Commercial Bank Term Loans in successive quarterly installments of
principal, payable on the first day of each fiscal quarter, in an amount equal
to (i) $562,500 for any suchpayment date occurring on or prior to the first
anniversary of the Closing Date, (ii) $1,125,000 for any such payment date
occurring after the first anniversary of the Closing Date and on or prior to
the fourth anniversary of the Closing Date and(iii) $1,687,500 for any such
payment date occurring after the fourth anniversary of the Closing Date, in
each case, of the original principal amount of the Commercial Bank Term Loan.
The aggregate principal payment due on the applicable MaturityDate shall be in
the amount necessary to pay all remaining unpaid principal on the Commercial
Bank Term Loans.
43
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(b)
Mandatory Prepayments of the Term Revolver Facility
.
(i) In addition to mandatory prepayments required under
Section
2.4(b)
, if the Consolidated LeverageRatio exceeds 2.50 to 1.00 as of the most
recently ended fiscal quarter, the Borrower shall prepay the Term Revolver
Loans in an amount equal to the lesser of (a) (x) 50% of the Net Cash Proceeds
received by the Credit Parties from SpecifiedDispositions and (y) 100% of the
Net Cash Proceeds of any settlement of or payment in respect of any Recovery
Event (other than assets that constitute ABL Priority Collateral), in each
case, to the extent such proceeds exceed $15,000,000individually or in the
aggregate with respect to any series of related transactions, and (b) the
amount required to reduce the Consolidated Leverage Ratio recomputed on a pro
forma basis as of the end of such fiscal quarter after giving effectto such
prepayment to 2.50 to 1.00; provided, however, that notwithstanding the
foregoing, the Credit Parties may reinvest (or commit to reinvest) such Net
Cash Proceeds in assets used or useful in the business of the Credit Parties
and theirSubsidiaries within (i) twelve (12) months following the receipt of
such Net Cash Proceeds or (ii) eighteen (18) months following the receipt of
such Net Cash Proceeds in the event that the Borrower or any other Credit
Party shall haveentered into a binding commitment within twelve (12) months
following the receipt of such Net Cash Proceeds to reinvest such Net Cash
Proceeds in the business of the Borrower or another Credit Party, it being
understood and agreed that pendingthe reinvestment of such Net Cash Proceeds,
such proceeds shall be held by a Credit Party and available for general
working capital purposes.
(ii) Subject to
Section
2.3(c)(v)
, such prepayments (a) shall be applied to outstanding Loansunder the Term
Revolver Facility as directed by the Borrower, (b) shall be accompanied by a
permanent reduction in the aggregate Term Revolver Commitments, and (c) shall
be accompanied by any amount required to be paid pursuant to
Section
3.9
or
Schedule 1.1(a)
.
(iii) Notwithstanding the foregoing, mandatoryprepayments with respect to Net
Cash Proceeds of Specified Dispositions or a Recovery Event received by
Foreign Subsidiaries shall be limited to the extent that the Borrower
determines that such prepayment would result in material adverse taxconsequences
related to the repatriation of funds or such repatriation would be prohibited
by Applicable Law.
(c)
Mandatory Prepayments of the Term Loan Facilities
.
(i) Upon receipt by any Credit Party or any Subsidiary of theNet Cash Proceeds
of any issuance or incurrence of Indebtedness other than Indebtedness that is
permitted under this Agreement, the Borrower shall prepay the Farm Credit Term
Loans and Commercial Bank Term Loans in an aggregate amount equal to
onehundred percent (100%) of such Net Cash Proceeds. Such prepayment shall be
made within three Business Days after the receipt of any such Net Cash
Proceeds.
(ii) The Borrower shall prepay the Farm Credit Term Loans and the Commercial
Bank Term Loans in an amount equal to 100% of theNet Cash Proceeds received by
the Credit Parties from Specified Dispositions (other than sales of assets
that constitute ABL Priority Collateral) not otherwise applied on account of
Excess Cash Flow,
44
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to the extent such proceeds exceed $15,000,000 individually or in the
aggregate with respect to any series of related transactions;
provided
, however, that notwithstanding the foregoing,the Credit Parties may reinvest
(or commit to reinvest) such Net Cash Proceeds in assets used or useful in the
business of the Credit Parties and their Subsidiaries within (i) twelve (12)
months following the receipt of such Net Cash Proceedsor (ii) eighteen (18)
months following the receipt of such Net Cash Proceeds in the event that the
Borrower or any other Credit Party shall have entered into a binding
commitment within twelve (12) months following the receipt of such NetCash
Proceeds to reinvest such Net Cash Proceeds in the business of the Borrower or
another Credit Party, it being understood and agreed that pending the
reinvestment of such Net Cash Proceeds, such proceeds shall be held by a
Credit Party andavailable for general working capital purposes.
(iii) The Borrower shall prepay the Farm Credit Term Loans and theCommercial
Bank Term Loans in an amount equal to 100% of the Net Cash Proceeds of any
settlement of or payment in respect of any Recovery Event (other than assets
that constitute ABL Priority Collateral) not otherwise applied on account of
ExcessCash Flow, to the extent such proceeds exceed $15,000,000 individually
or in the aggregate with respect to any series of related transactions;
provided
, however, that notwithstanding the foregoing, the Credit Parties may reinvest
(or committo reinvest) such Net Cash Proceeds in assets used or useful in the
business of the Credit Parties and their Subsidiaries within (i) twelve (12)
months following the receipt of such Net Cash Proceeds or (ii) eighteen (18)
months followingthe receipt of such Net Cash Proceeds in the event that the
Borrower or any other Credit Party shall have entered into a binding
commitment within twelve (12) months following the receipt of such Net Cash
Proceeds to reinvest such Net CashProceeds in the business of the Borrower or
another Credit Party, it being understood and agreed that pending the
reinvestment of such Net Cash Proceeds, such proceeds shall be held by a
Credit Party and available for general working capitalpurposes.
(iv) Within five (5) Business Days after each date on which quarterly
financial statements have beendelivered for each of the first three quarterly
periods of each Fiscal Year of the Borrower pursuant to
Section
6.1(b)
and the related Officer's Compliance Certificate has been delivered pursuant to
Section
6.2(a)
commencing with those delivered in respect of the fiscal quarter ending
September 30, 2024, the Borrower shall, if the Consolidated Leverage Ratio
exceeds 3.25 to 1.00 as of such fiscal quarter, prepaythe Farm Credit Term
Loans and the Commercial Bank Term Loans in an aggregate amount equal to (A)
50% of Excess Cash Flow for such fiscal quarter covered by such financial
statements
minus
(B) the amount of any voluntary prepayments,solely to the extent not funded
with the proceeds of Consolidated Total Debt (other than advances under the
Term Revolver Facility that are accompanied by a permanent reduction in the
aggregate Term Revolver Commitments), made on the Term LoanFacilities (such
voluntary prepayments being referred to herein as "
Applicable Prepayments
") during such fiscal quarter (each, an "
Excess Cash Flow Prepayment
"). Further, if, based on the annual financial statementsdelivered pursuant to
Section
6.1(a)
and the related Officer's Compliance Certificate delivered pursuant to
Section
6.2(a)
, the Consolidated Leverage Ratio (after giving effect to anycalculations
required to be made on a Pro Forma Basis based upon such annual financial
statements) exceeds 3.25 to 1.00 as of such Fiscal Year, 50% of Excess Cash
Flow for such Fiscal Year is greater or less than (x) the aggregate amount
paidfor each fiscal quarter in such Fiscal Year
minus
the aggregate amount of Applicable Prepayments for such Fiscal Year is greater
or less than (y) the aggregate amount of Excess Cash Flow Prepayments for each
fiscal quarter in such FiscalYear
minus
the aggregate amount of Applicable Prepayments for each fiscal quarter in such
Fiscal Year pursuant to the first
45
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sentence of this
Section
2.3(c)(iv)
, then the amount due pursuant to this
Section
2.3(c)(iv)
for the next fiscal quarter (and, if necessary,subsequent fiscal quarters)
shall be adjusted up or down to true up such difference; provided, however, it
is understood and agreed that the aggregate Excess Cash Prepayment required
for the Borrower's fiscal year ending December 31, 2024shall be based solely
on the Excess Cash Flow generated by the Borrower during its third and fourth
fiscal quarters ending September 30, 2024 and December 31, 2024, respectively.
(v) Mandatory prepayments received pursuant to this
Section
2.3(c)
, (A) shall be applied tooutstanding Loans under the Term Loan Facilities on a
pro rata basis as directed by the Borrower;
provided
, that, in the case of prepayments pursuant to clauses (c)(ii) and (c)(iii)
above, if a mandatory prepayment is also due pursuant to
Section
2.3(b)
with respect to the Term Revolver Facility, such prepayments shall be applied
to outstanding Loans under all of the Credit Facilities on a pro rata basis to
the principal installments thereof as directed bythe Borrower but only until
the Consolidated Leverage Ratio recomputed on a Pro Forma Basis as of the end
of such fiscal quarter after giving effect to such prepayment has been reduced
to 2.50 to 1.00, at which point the remaining Net Cash Proceedsshall be
applied only to the Term Loan Facilities on a pro rata basis to the principal
installments thereof as directed by the Borrower;
provided
,
further
, that when prepayments are applied to outstanding Term Revolver Loans
asrequired pursuant to the immediately preceding proviso, only 50% of the Net
Cash Proceeds from Specified Dispositions required to be prepaid pursuant to
clause (c)(ii) above shall factor into the calculation of prepayments applied
to the outstandingTerm Revolver Facility Loans (i.e., half of the portion that
would be applied to the Term Revolver Loans if Loans under each Credit
Facility were prepaid on a pro rata basis).
(vi) Such prepayments shall be accompanied by any amount required to be paid
pursuant to
Section
3.9
or
Schedule 1.1(a)
. Notwithstanding any of the other provisions of this
Section
2.3(c)
, so long as no Event of Default shall have occurred and be continuing, if any
prepayment of is required to be made under this
Section
2.3(c)
, prior to the last day of the Interest Period therefor, in lieu of making any
payment pursuant to
Sections 2.3(b)
or
(c)
in respect of any Fixed Rate Loan or Term SOFR Loan prior to thelast day of
the Interest Period therefor, the Borrower may, in its sole discretion,
deposit an amount sufficient to make any such prepayment otherwise required to
be made thereunder together with accrued interest to the last day of such
InterestPeriod into a blocked account at the Administrative Agent until the
last day of such Interest Period, at which time the Administrative Agent shall
be authorized (without any further action or notice to or from the Borrower or
any other Credit Party)to apply such amount to the prepayment of such Loans in
accordance with this
Section
2.3(c)
. Such deposit shall be deemed to be a prepayment of such Loans by the
Borrower for all purposes under this Agreement.
(vii) Notwithstanding the foregoing, mandatory prepayments with respect to Net
Cash Proceeds of Specified Dispositions or aRecovery Event received by Foreign
Subsidiaries or Excess Cash Flow attributable to Foreign Subsidiaries shall be
limited to the extent that the Borrower determines that such prepayment would
result in material adverse tax consequences related tothe repatriation of
funds or such repatriation would be prohibited by Applicable Law.
46
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(d)
Optional Prepayments
. Subject to the Existing Fixed Rate LoanPrepayment Exception, the Borrower
may at any time and from time to time prepay Loans, in whole or in part, with
irrevocable prior written notice to the Administrative Agent substantially in
the form attached as
Exhibit D
(a"
Notice of Prepayment
") given not later than 1:00 p.m. (i) on the same Business Day as each SOFR
Monthly Variable Base Rate Loan, Base Rate Loan or Daily Simple SOFR Loan,
(ii) at least three Business Days before each TermSOFR Loan and (iii) as set
forth on
Schedule 1.1(a)
for any Fixed Rate Loan, specifying the date and amount of prepayment and
whether the prepayment is of Term SOFR Loans, SOFR Monthly Variable Base Rate
Loans, Base Rate Loans, DailySimple SOFR Loans, Fixed Rate Loans or a
combination thereof, and, if a combination thereof, the amount allocable to
each. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Lender. If any such notice is given, theamount specified in such
notice shall be due and payable on the date set forth in such notice. Partial
prepayments shall be in an aggregate amount of $1,000,000 or a whole multiple
of $100,000 in excess thereof. A Notice of Prepayment received after1:00 p.m.
Eastern shall be deemed received on the next Business Day. Each such repayment
shall be accompanied by any amount required to be paid pursuant to
Section
3.9
hereof or
Schedule 1.1(a)
hereto.Notwithstanding the foregoing, any Notice of Prepayment delivered in
connection with any refinancing of all or a portion of the Credit Facilities
with the proceeds of such refinancing or of any incurrence of Indebtedness, or
of the net cash proceedsof a Disposition or the issuance of Capital Stock or
any other transaction specified in such Notice of Prepayment, may be, if
expressly so stated to be, contingent upon the consummation of such
refinancing, incurrence, receipt, issuance or othertransaction and may be
revoked by the Borrower in the event any of the foregoing is not consummated (
provided
that the failure of such contingency shall not relieve the Borrower from its
obligations in respect thereof under
Section
3.9
or
Schedule 1.1(a)
). Notwithstanding anything to the contrary contained herein, the Borrower may
not prepay or repay any portion of the Existing Fixed Rate Loan as to which no
Make-Whole Amount (asdefined in the Existing Credit Agreement) shall have been
paid, reimbursed, or compensated, directly or indirectly (including through
any indemnification payment) for any
out-of-pocket
cost by the Credit Parties in connection with Transactions and such portion of
the Existing Fixed Rate Loan shall remain outstanding in accordance with
Section
10.22
until November 1, 2024 (the "
Existing Fixed Rate Loan Prepayment Exception
"). Prepayments under this
Section
2.3(d)
shall be applied as directed by the Borrower(with respect to both principal
amortization payments and Credit Facility) and shall not be required to be
applied to the outstanding Loans under each Credit Facility on a pro rata
basis.
(e)
Limitation on Prepayment of Term SOFR Loans and Fixed Rate Loans
. The Borrower may not prepay any Term SOFR Loan onany day other than on the
last day of the Interest Period applicable thereto unless such prepayment is
accompanied by any amount required to be paid pursuant to
Section
3.9
hereof or
Schedule 1.1(a)
hereto. TheBorrower may not prepay any Fixed Rate Loan on any day other than
on the last day of the Interest Period applicable thereto unless such
prepayment is accompanied by any amount required to be paid pursuant to
Schedule 1.1(a)
.
(f)
Swap Agreements
. No repayment or prepayment of the Loans pursuant to this Section shall
affect any of theBorrower's obligations under any Swap Agreement entered into
with respect to the Loans.
Section
2.4
Permanent Reduction of the Term Revolver Commitment
s
.
(a)
Mandatory Reduction
.Commencing on the first anniversary of the Closing Date and continuing on
each anniversary thereafter, the aggregate Term Revolver Commitments shall be
permanently reduced on an annual basis by two percent (2%) of the aggregate
Term RevolverCommitments in effect immediately prior thereto (the "
Required Commitment Reduction
").
47
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(b)
Corresponding Payment
. To the extent there are Term RevolverLoans outstanding in excess of the
aggregate Term Revolver Commitments, after giving effect to the Required
Commitment Reduction for any year, the Borrower shall prepay such Term
Revolver Loans and the Administrative Agent shall apply the fundsrequired to
repay those outstanding Term SOFR Loans, SOFR Monthly Variable Base Rate
Loans, Daily Simple SOFR Loans or Fixed Rate Loans ratably to such Term
Revolver Loan to the extent required for the aggregate outstanding Term
Revolver Loans underthe Term Revolver Facility to no longer exceed the
aggregate Term Revolver Commitments after giving effect to such Required
Commitment Reduction, and any such prepayment will not be subject to
Section
3.9
or the payment ofamounts due pursuant to
Schedule 1.1(a)
.
(c)
Optional Reduction
. Borrower shall have the right at any timeand from time to time, upon at
least three Business Days prior irrevocable written notice to the
Administrative Agent, to permanently reduce, without premium or penalty, (i)
the Term Revolver Commitments at any time or (ii) portions of theTerm Revolver
Commitments, from time to time, in an aggregate principal amount not less than
$3,000,000 or any whole multiple of $1,000,000 in excess thereof. Any
reduction of the Term Revolver Commitments shall be applied to the Term
RevolverCommitment of each Lender according to its Commitment Percentage. All
Commitment Fees accrued until the effective date of any termination of the
Term Revolver Commitment shall be paid on the effective date of such
termination. Notwithstanding theforegoing, any notice to reduce the Term
Revolver Commitments delivered in connection with any refinancing of all or a
portion of the Term Revolver Facility with the proceeds of such refinancing or
of any incurrence of Indebtedness, or of the netcash proceeds of a Disposition
or the issuance of Capital Stock or any other transaction specified in such
notice may be, if expressly so stated to be, contingent upon the consummation
of such refinancing or incurrence and may be revoked by theBorrower in the
event such refinancing is not consummated (
provided
that the failure of such contingency shall not relieve the Borrower from its
obligations in respect thereof under
Section
3.9
or
Schedule1.1(a)
).
(d)
Corresponding Payment
. Each permanent reduction permitted pursuant to
Section
2.4(c)
shall be accompanied by a payment of principal sufficient to reduce the
aggregate outstanding Term Revolver Loans after such reduction to the
aggregate Term Revolver Commitments as so reduced. Such prepaymentshall be
applied as directed by the Borrower. Any reduction of the Term Revolver
Commitments to zero shall be accompanied by payment of all outstanding Loans
and shall result in the termination of the Term Revolver Commitments and the
Term RevolverFacility. If the reduction of the Term Revolver Commitments
pursuant to
Section
2.4(c)
requires the repayment of any Term SOFR Loan, such repayment shall be
accompanied by any amount required to be paid pursuant to
Section
3.9
hereof. If the reduction of the Term Revolver Commitments pursuant to
Section
2.4(c)
requires the prepayment of any Fixed Rate Loan, such repayment shall be
accompanied by any amountrequired to be paid pursuant to
Schedule 1.1(a)
.
Section
2.5
Termination of Term RevolverFacility
. The Term Revolver Facility and the aggregate Term Revolver Commitments
thereunder shall terminate on the applicable Maturity Date.
48
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ARTICLE III.
GENERAL LOAN PROVISIONS
Section
3.1
Interest
.
(a)
Interest Rate Options
. Subject to the provisions of this Section, at the election of the Borrower,
(i) FarmCredit Facilities Loans shall bear interest at (A) the SOFR Monthly
Variable Base Rate
plus
the Applicable Margin, (B) Term SOFR Rate
plus
the Applicable Margin (
provided
that Term SOFR Rate shall not be availableuntil three Business Days after the
Closing Date unless the Borrower has delivered to the Administrative Agent a
letter in form and substance reasonably satisfactory to the Administrative
Agent indemnifying the Lenders in the manner set forth in
Section
3.9
of this Agreement) or (C) at the applicable Fixed Rate
plus
the Applicable Margin (
provided
that the Fixed Rate shall not be available until three Business Days after the
Closing Date unlessthe Borrower has delivered to the Administrative Agent a
letter in form and substance reasonably satisfactory to the Administrative
Agent indemnifying the Lenders in the manner set forth in
Section
3.9
of this Agreement or
Schedule 1.1(a)
to this Agreement, as applicable) and (ii) Commercial Bank Term Loans shall
bear interest at (A) Term SOFR Rate
plus
the Applicable Margin (
provided
that Term SOFR Rate shall not be available untilthree Business Days after the
Closing Date unless the Borrower has delivered to the Administrative Agent a
letter in form and substance reasonably satisfactory to the Administrative
Agent indemnifying the Lenders in the manner set forth in
Section
3.9
of this Agreement) or (B) the Base Rate
plus
the Applicable Margin. The Borrower shall select the rate of interest and
Interest Period, if any, applicable to any Loan at the time a Notice
ofBorrowing is given or at the time a Notice of Conversion/Continuation is
given pursuant to
Section
3.2
.
(b)
Default Rate
. Subject to
Section
8.3
, (i) immediately upon the occurrence and duringthe continuance of an Event of
Default under
Section
8.1(a)
or
(g)
, or (ii) at the election of the Required Lenders, upon the occurrence and
during the continuance of any other Event of Default, (A) theBorrower shall no
longer have the option to request Term SOFR Rate with respect to new Term SOFR
Loans, rollovers or repricings, (B) all outstanding Term SOFR Loans shall bear
interest at a rate per annum of two percent in excess of the rate(including
the Applicable Margin) then applicable to such Loans until the end of the
applicable Interest Period and thereafter at a rate equal to two percent in
excess of the rate (including the Applicable Margin) then applicable to, in
the case ofFarm Credit Facilities Loans, SOFR Monthly Variable Base Rate Loans
and, in the case of Commercial Bank Term Loans, Base Rate Loans, (C) all
outstanding SOFR Monthly Variable Base Rate Loans and other Obligations
arising hereunder or under anyother Loan Document (other than Obligations
covered by
clauses (A)
,
(B)
,
(D)
,
(E)
or (
F
)) shall bear interest at a rate per annum equal to two percent in excess of
the rate (including the Applicable Margin) thenapplicable to SOFR Monthly
Variable Base Rate Loans or such other Obligations arising hereunder or under
any other Loan Document, (D) all outstanding Fixed Rate Loans shall bear
interest at a rate per annum equal to two percent in excess of therate
(including the Applicable Margin) then applicable to Fixed Rate Loans, (E) all
outstanding Daily Simple SOFR Loans shall bear interest at a rate per annum of
two percent in excess of the rate (including the Applicable Margin)
thenapplicable to such Loans, (F) all outstanding Base Rate Loans shall bear
interest at a rate per annum equal to two percent in excess of the rate
(including the Applicable Margin) then applicable to such Loans and (G) all
accrued and unpaidinterest shall be due and payable on demand of the
Administrative Agent. Interest shall continue to accrue on the Obligations
after the filing by or against the Borrower of any petition seeking any relief
in bankruptcy or under any Debtor ReliefLaw.
(c)
Interest Payment and Computation
. Interest on each SOFR Monthly Variable Base Rate Loan, Daily Simple
SOFRLoan, Fixed Rate Loan and Base Rate Loan shall be due and payable in
arrears with respect to the previous calendar quarter, on the first day of
each calendar quarter commencing July 1, 2024. Interest on each Term SOFR Loan
shall be due andpayable in arrears on the last day of the Interest Period with
respect thereto. All computations of fees and of interest for (a) Fixed Rate
Loans and (b) Base Rate Loans when the Base Rate is based on the Prime Rate
shall be made on thebasis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest provided
hereunder shall be made on the basis of a
360-day
year and actual dayselapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a
365/366-day
year).
49
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(d)
Maximum Rate
. In no contingency or event whatsoever shall theaggregate of all amounts
deemed interest under this Agreement charged or collected pursuant to the
terms of this Agreement exceed the highest rate permissible under any
Applicable Law which a court of competent jurisdiction shall, in a
finaldetermination, deem applicable hereto. In the event that such a court
determines that the Lenders have charged or received interest hereunder in
excess of the highest applicable rate, the rate in effect hereunder shall
automatically be reduced tothe maximum rate permitted by Applicable Law and
the Lenders shall at the Administrative Agent's option (i) promptly refund to
the Borrower any interest received by the Lenders in excess of the maximum
lawful rate or (ii) apply suchexcess to the principal balance of the
Obligations. It is the intent hereof that the Borrower not pay or contract to
pay, and that neither the Administrative Agent nor any Lender receive or
contract to receive, directly or indirectly in any mannerwhatsoever, interest
in excess of that which may be paid by the Borrower under Applicable Law.
(e)
Rate Reset
. Oneach date that is a two year anniversary of the Closing Date occurring
prior to the Maturity Date (or such other date approximately preceding such
date as the Administrative Agent and the Borrower may agree) (such date, the "
Reset ReferencePoint
"), the Administrative Agent (x) shall determine the difference (in basis
points), if any, between the Current Cost of Funds (as defined below) as of
such Reset Reference Point and the Closing Date Cost of Funds (as defined
below)and (y) thereafter shall promptly notify the Lenders with Commitments or
Loans under the Farm Credit Facilities and the Borrower of such difference by
delivering a certificate in form and substance mutually acceptable to
Administrative Agentand the Borrower. The
all-in
interest rate with respect to the Farm Credit Facilities Loans shall be
increased or decreased, as applicable, by the amount of the difference (in a
like amount of basis points),which increase or decrease shall commence from
and as of such Reset Reference Point and shall remain in effect until either
(i) the next succeeding Reset Reference Point or (ii) solely with respect to
the final Reset Reference Point, theapplicable Maturity Date; provided that it
is acknowledged and agreed that the Administrative Agent will effect such
increase or decrease in the form of an adjustment to the margin above Term
SOFR Rate or the SOFR Monthly Variable Base Rate setforth in the definition of
"Applicable Margin" and applicable to such Loans. Notwithstanding anything to
the contrary herein or in any other Loan Document, such increase or decrease
in the
all-in
interest rate for any interest period shall be automatic and shall not require
an amendment to this Agreement or the consent of any Lender. As used in this
subsection (e)
:
"
Closing Date Cost of Funds
" means, as of the Closing Date, 11 basis points, which is the amount by
which(x) the
all-in
SOFR Floating Note Rate cost of funds differs from (y) the Daily Simple SOFR
Rate, in each case, determined as of the Closing Date but with respect to the
date that is two BusinessDays prior to the Closing Date.
"
Current Cost of Funds
" means, as of any Reset Reference Point, theamount (in basis points), if any,
by which (x) the
all-in
SOFR Floating Note Rate cost of funds exceeds (y) the Daily Simple SOFR Rate,
in each case determined as of the applicable Reset ReferencePoint but with
respect to the date that is two Business Days prior to such Reset Reference
Point.
50
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"
SOFR Floating Note Rate
" means, as of any date ofdetermination, the estimated funding cost (not the
actual sale price), including the applicable "Farm Credit Floating Rate
Funding Index Spread" (for overnight SOFR (reset daily, simple average in
arrears)) and standard underwriting fees,for new
two-year
debt securities indexed to overnight SOFR (reset daily, simple average in
arrears), and issued by The Federal Farm Credit Banks Funding Corporation into
the primary market based on marketobservations on such date indicated at
approximately 9:30 a.m., New York City time; it being understood that such
indications represent The Federal Farm Credit Banks Funding Corporation's best
estimate of the cost of new debt issuances based ona combination of daily
surveys of selected farm credit selling group members (participating bond
dealers) and ongoing monitoring of the fixed income markets for actual,
recent, primary market issuance by other government-sponsors of similar
bondsand notes and pricing within related derivative markets, particularly the
interest rate swap market. Historical information on such funding costs is
available, for the prior week, on The Federal Farm Credit Banks Funding
Corporation's website(
https://www.farmcreditfunding.com/ffcb_live/dataCenter/fundingCostIndex.html
) within the daily and weekly spreadsheet for the desired date. Notwithstanding
the foregoing, if, in connection with the Closing Date or any Reset Reference
Point,new floating rate (indexed to overnight SOFR) debt securities with a two
(2) year term are not then being issued into the primary market by The Federal
Farm Credit Banks Funding Corporation, then "SOFR Floating Note Rate" shall
meanAgWest's best estimate of the cost of such debt securities based on market
observations of synthetic (swaps) floating rate indications for similar debt
securities or such other replacement benchmark as the Administrative Agent and
the Borrowermay mutually agree upon.
By way of example, assuming the Closing Date Cost of Funds is 15 basis points,
(a) if the Current Cost ofFunds as of a Reset Reference Point is 35 basis
points, then the
all-in
interest rate with respect to the Farm Credit Facilities Loans shall be
increased by 20 basis points commencing from and as of such ResetReference
Point, and (b) if the Current Cost of Funds as of a Reset Reference Point is
-5 basis points (i.e., the SOFR Floating Note Rate is 5 basis points less than
the Daily Simple SOFR Rate in each case as of the date that is twoBusiness
Days prior to such Reset Reference Point), then the
all-in
interest rate with respect to the Farm Credit Facilities Loans shall be
decreased (but not below zero) by 20 basis points commencing from andas of
such Reset Reference Point.
Section
3.2
Notice and Manner of Conversion or Continuation ofLoans
. Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time all
or any portion of any outstanding SOFR Monthly Variable Base Rate Loans in
aprincipal amount equal to $1,000,000 or any whole multiple of $1,000,000 in
excess thereof into one or more Term SOFR Loans or Fixed Rate Loans, (b) upon
the expiration of any Interest Period, (i) convert all or any part of its(A)
outstanding Term SOFR Loans that are Farm Credit Term Loans or Term Revolver
Loans in a principal amount equal to $1,000,000 or a whole multiple of
$1,000,000 in excess thereof into SOFR Monthly Variable Base Rate Loans or
Fixed Rate Loansor (B) outstanding Term SOFR Loans that are Commercial Bank
Term Loans in a principal amount equal to $1,000,000 or a whole multiple of
$1,000,000 in excess thereof into Base Rate Loans, (ii) convert all or any
part of its outstandingFixed Rate Loans in a principal amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof into SOFR
Monthly Variable Base Rate Loans or Term SOFR Loans, (iii) convert all or any
part of its outstanding Base Rate Loans in aprincipal amount equal to
$1,000,000 or any whole multiple of $1,000,000 in excess thereof into one or
more Term SOFR Loans, (iv) continue any Term SOFR Loans as Term SOFR Loans or
(v) continue any Fixed Rate Loans as Fixed Rate Loans (solong as the
applicable Interest Period is still available). Whenever the Borrower desires
to convert or continue Loans as provided above, the Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached as
Exhibit
E
(a "
Notice of Conversion/Continuation
") not later than 2:00 p.m. three Business Days before the day on which a
proposed conversion or continuation of such Loan is to beeffective specifying
(A) the
51
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Loans to be converted or continued, and, in the case of any Term SOFR Loan to
be converted or continued, the last day of the Interest Period therefor, (B)
the effective date of suchconversion or continuation (which shall be a
Business Day), (C) the principal amount of such Loans to be converted or
continued, and (D) the Interest Period to be applicable to such converted or
continued Term SOFR Loan. If the Borrowerfails to give a Notice of
Conversion/Continuation within three Business Days prior to the end of the
Interest Period for any Term SOFR Loan, then, so long as no Default or Event
of Default has occurred and is continuing, the applicable Term SOFRLoan shall
be continued as a Term SOFR Loan and will be deemed to have the same Interest
Period as was then in effect prior to the expiration of the previous Interest
Period during which the Borrower failed to give a timely Notice ofConversion/Con
tinuation. Any such automatic continuation of a Term SOFR Loan shall be
effective as of the last day of the Interest Period then in effect with
respect to the applicable Term SOFR Loan. Notwithstanding the foregoing, (x)
if aDefault or Event of Default has occurred and is continuing on the last day
of an Interest Period for any Term SOFR Loan or Fixed Rate Loan, (y) any such
automatic continuation with respect to any Term SOFR Loan shall result in an
InterestPeriod that does not comply with
clause (x)
of the proviso in the definition thereof and (z) if no Notice of Conversion/Cont
inuation is submitted for a Fixed Rate Loan and agreed to pursuant to the
procedures and requirements setforth on
Schedule 1.1(a)
, such Loan shall in each case automatically convert to, in the case of a Farm
Credit Facilities Loan, a SOFR Monthly Variable Base Rate Loan or, in the case
of a Commercial Bank Term Loan, a Base Rate Loan, in eachcase, on the last day
of its Interest Period. If the Borrower requests a conversion to, or
continuation of, Term SOFR Loans, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one month.
TheAdministrative Agent shall promptly notify the affected Lenders of such
Notice of Conversion/Continuation.
Section
3.3
Fees
.
(a)
Commitment Fee
. Commencing on the Closing Date, subject to
Section
3.14(a)(iii)(A)
, theBorrower shall pay to the Administrative Agent, for the account of the
Lenders, a
non-refundable
commitment fee (the "
Commitment Fee
") at a rate per annum equal to 0.25% on the actual dailyunused portion of the
aggregate Term Revolver Commitments of the Lenders (other than the Defaulting
Lenders, if any). The Commitment Fee shall be payable in arrears on the first
day of each calendar quarter during the term of this Agreementcommencing July
1, 2024 and ending on the date upon which all Obligations (other than
contingent indemnification obligations not then due) arising under the Term
Revolver Facility shall have been paid and satisfied in full and the
aggregateTerm Revolver Commitments have been terminated. The Commitment Fee
shall be distributed by the Administrative Agent to the Lenders (other than
any Defaulting Lender)
pro
rata
in accordance with such Lenders' respective CommitmentPercentages with respect
to the Term Revolver Facility.
(b)
Other Fees
. The Borrower shall pay to the Arranger andthe Administrative Agent for their
own respective accounts fees in the amounts and at the times specified in
their Fee Letter. The Borrower shall pay to the Lenders such fees as shall
have been separately agreed upon in writing in the amounts and atthe times so
specified.
Section
3.4
Manner of Payment
. Each payment by the Borrower on account ofthe principal of or interest on
the Loans or of any fee, commission or other amounts payable to the Lenders
under this Agreement shall be made not later than 1:00 p.m. on the date
specified for payment under this Agreement to the AdministrativeAgent at the
Administrative Agent's Office for the account of the Lenders entitled to such
payment in Dollars, in immediately available funds and shall be made without
any set off, counterclaim or deduction whatsoever. Any payment receivedafter
such time but before 2:00 p.m. on such day shall be deemed a payment on such
date for the purposes of
Section
8.1
, but for all other purposes shall be deemed to have been made on the next
succeeding Business Day. Anypayment received after 2:00 p.m. shall be deemed
to have been made on the next succeeding Business Day for all purposes. Upon
receipt by the
52
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Administrative Agent of each such payment, the Administrative Agent shall
distribute to each such Lender at its address for notices set forth herein its
Commitment Percentage in respect of theCredit Facilities (or other applicable
share as provided herein) of such payment and shall wire advice of the amount
of such credit to each Lender. Each payment to the Administrative Agent of
Administrative Agent's fees or expenses shall bemade for the account of the
Administrative Agent and any amount payable to any Lender under
Section
3.9
,
3.10
,
3.11
or
10.3
shall be paid to the Administrative Agent for the account of the applicableLende
r. Subject to the definition of Interest Period, if any payment under this
Agreement shall be specified to be made upon a day which is not a Business
Day, it shall be made on the next succeeding day which is a Business Day and
such extension oftime shall in such case be included in computing any interest
if payable along with such payment. Notwithstanding the foregoing, if there
exists a Defaulting Lender, each payment by the Borrower to such Defaulting
Lender hereunder shall be appliedin accordance with
Section
3.14(a)(ii)
.
Section
3.5
Evidence ofIndebtedness
. The Loans made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by
theAdministrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Loans made by the Lenders to the Borrower and its
Subsidiaries and the interest and payments thereon. Any failure to so record
or any error in doingso shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and theaccounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent,the Borrower shall
execute and deliver to such Lender (through the Administrative Agent) a Note
which shall evidence such Lender's Loans in addition to such accounts or
records. Each Lender may attach schedules to its Notes and endorse thereonthe
date, amount and maturity of its Loans and payments with respect thereto.
Section
3.6
Sharing ofPayments by Lenders
. If any Lender shall, by exercising any right of setoff or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Loans or other obligations hereunder resulting in suchLender's receiving
payment of a proportion of the aggregate amount of its Loans and accrued
interest thereon or other such obligations (other than pursuant to
Section
3.9
,
3.10
,
3.11
or
10.3
)greater than its
pro
rata
share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Administrative Agent of such fact, and (b)
purchase (for cash at face value) participations inthe Loans and such other
obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal ofand
accrued interest on their respective Loans and other amounts owing them;
provided
that:
(a) if any suchparticipations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and
(b) the provisions of this Section shall not be construed to apply to (A) any
payment made by the Borrower pursuant to andin accordance with the express
terms of this Agreement (including the application of funds arising from the
existence of a Defaulting Lender) or (B) any payment obtained by a Lender as
consideration for the assignment of or sale of aparticipation in any of its
Loans to any assignee or participant, other than to the Borrower or any of its
Subsidiaries or Affiliates (as to which the provisions of this Section shall
apply).
Each Credit Party consents to the foregoing and agrees, to the extent it may
effectively do so under Applicable Law, that any Lender acquiring a
participationpursuant to the foregoing arrangements may exercise against each
Credit Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of each Credit
Party in the amount of suchparticipation.
53
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Section
3.7
Payments Generally; AdministrativeAgent
'
s Clawback
.
(a)
Funding by Lenders; Presumption by AdministrativeAgent
. Unless the Administrative Agent shall have received notice from a Lender (i)
in the case of a SOFR Monthly Variable Base Rate Loans or Base Rate Loans, not
later than 12:00 noon on the date of any proposed borrowing and(ii) otherwise,
prior to the proposed date of any borrowing, that such Lender will not make
available to the Administrative Agent such Lender's share of such borrowing,
the Administrative Agent may assume that such Lender has made suchshare
available on such date in accordance with
Section
2.3(b)
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its
share of theapplicable borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from thedate such amount is made available to
the Borrower to the date of payment to the Administrative Agent, at (A) in the
case of a payment to be made by such Lender, the greater of the daily average
Federal Funds Rate and a rate determined by theAdministrative Agent in
accordance with banking industry rules on interbank compensation and (B) in
the case of a payment to be made by the Borrower, the interest rate applicable
to, in the case of Farm Credit Facilities Loans, SOFR MonthlyVariable Base
Rate Loans and, in the case of Commercial Bank Term Loans, Base Rate Loans. If
the Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent
shallpromptly remit to the Borrower the amount of such interest paid by the
Borrower for such period. If such Lender pays its share of the applicable
borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender's Loanincluded in such borrowing. Any payment by the
Borrower shall be without prejudice to any claim the Borrower may have against
a Lender that shall have failed to make such payment to the Administrative
Agent.
(b)
Failure to Satisfy Conditions Precedent
. If any Lender makes available to the Administrative Agent funds for anyLoan
to be made by such Lender as provided in the foregoing provisions of this
Article III
, and such funds are not made available to the Borrower by the Administrative
Agent because the conditions to the Loan set forth in
Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(c)
Obligations of Lenders Several
. The obligations of the Lenders hereunder to make Loans are several and not
joint.The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other
Lender of its corresponding obligation to do so on such date, and no Lender
shall be responsible for the failureof any other Lender to so make its Loan or
to purchase its participation.
(d)
Funding Source
. Nothing herein shallbe deemed to obligate any Lender to obtain the funds for
any Loan in any particular place or manner or to constitute a representation
by any Lender that it has obtained or will obtain the funds for any Loan in
any particular place or manner.
(e)
Insufficient Funds
. If at any time insufficient funds are received by and available to the
Administrative Agent topay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i)
first
, toward payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with theamounts of interest and fees
then due to such parties, and (ii)
second
, toward payment of principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
54
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(f)
Pro Rata Treatment
. Except to the extent otherwise providedherein: (i) each Loan shall be made
from the Lenders, each payment of fees under
Section
3.3
shall be made for account of the Lenders, and each termination or reduction of
the amount of the applicable Commitments shallbe applied to the respective
applicable Commitments of the Lenders, pro rata according to the amounts of
their respective applicable Commitments; (ii) each Loan shall be allocated pro
rata among the Lenders according to the amounts of theirrespective Commitments
(in the case of the making of Loans) or their respective existing Loans that
are to be included in such converted or continued Loan (in the case of
conversions and continuations of Loans); (iii) each payment or prepaymentof
principal of Loans by the Borrower shall be made for account of the Lenders
pro rata in accordance with the respective unpaid principal amounts of the
Loans held by them; and (iv) each payment of interest on Loans by the Borrower
shall bemade for account of the Lenders pro rata in accordance with the
amounts of interest on such Loans then due and payable to the respective
Lenders.
Section
3.8
Inability to Determine Rates
.
(a)
Inability to Determine Rate; Cost
. Subject to
Section
3.8(b)
, if on or prior to thecommencement of any Interest Period (or in the case of
any Benchmark that is not subject to an Interest Period, on any Business Day):
(i) the Administrative Agent determines (which determination shall be
conclusive and binding absent manifest error) that forany reason (other than a
Benchmark Transition Event) that adequate and reasonable means do not exist
for ascertaining any Benchmark;
(ii) the Required Lenders determine that for any reason in connection with any
request for a Loan that is subject to anInterest Period or a conversion
thereto or a continuation thereof, that the Benchmark for any requested
Interest Period with respect to a proposed Loan does not adequately and fairly
reflect the cost to such Lenders of funding or continuing suchLoans, and the
Required Lenders have provided notice of such determination to the
Administrative Agent; or
(iii) theRequired Lenders determine that for any reason in connection with any
request for a Loan that is not subject to an Interest Period or a conversion
thereto or a continuation thereof or the maintaining thereof, that the
Benchmark with respect to aproposed Loan or outstanding Loan does not
adequately and fairly reflect the cost to such Lenders of funding or
maintaining such Loans, and the Required Lenders have provided notice of such
determination to the Administrative Agent,
then the Administrative Agent shall give notice thereof to the Borrower and
the Lenders.
Upon notice thereof by the Administrative Agent to the Borrower,
(1) any obligation of the Lenders to make such Loans that are subject to an
Interest Period, and any right of the Borrower tocontinue such Loans or to
convert to such Loans, shall be suspended (to the extent of the affected
Loans) until the Administrative Agent (with respect to
clause (ii)
, at the instruction of the Required Lenders) revokes such notice;
55
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(2) any obligation of the Lenders to make or maintain such Loans that arenot
subject to an Interest Period (other than Base Rate Loans in the case of the
Commercial Bank Term Loans), and any right of the Borrower to continue such
Loans or to convert to such Loans, shall be suspended (to the extent of the
affected Loans)until the Administrative Agent (with respect to
clause (iii)
, at the instruction of the Required Lenders) revokes such notice;
(3) the Borrower may revoke any pending request for a Loan or conversion to or
continuation of such Loans (to the extent of theaffected Loans or affected
Interest Periods); and
(4) any outstanding affected Loans shall be (A) converted intoDaily Simple
SOFR Loans (or if the Daily Simple SOFR Rate is itself subject to
Section
3.8(a)
, Loans subject to such other then applicable Successor Rate (or, at the
Borrower's election, the Base Rate in the case ofCommercial Bank Term Loans)
at the end of the applicable Interest Period (or if such Loans are not subject
to an Interest Period, immediately) or (B) if the then applicable Successor
Rate (other than for the avoidance of doubt, the Daily SimpleSOFR Rate) is
itself subject to
Section
3.8(a)
, prepaid at the end of the applicable Interest Period (or if such Loans are
not subject to an Interest Period, immediately) (or, at the Borrower's option
in the case ofCommercial Bank Term Loans, converted to Base Rate Loans) and,
upon any such conversion or prepayment, the Borrower shall also pay accrued
interest on the amount so converted or prepaid, together with any additional
amounts required pursuant to
Section
3.9
;
(b)
Benchmark Replacement Setting
. Notwithstanding anything to the contraryherein or in any other Loan Document:
(i)
Replacing Benchmarks
. Upon the occurrence of a Benchmark Transition Eventas to any Benchmark, the
applicable Benchmark Replacement will replace the applicable then-current
Benchmark for all purposes hereunder and under any Loan Document in respect of
any setting of such Benchmark at or after 5:00 p.m. on the fifthBusiness Day
after the date notice of such Benchmark Replacement is provided to the Lenders
without any amendment to, or further action or consent of any other party to,
this Agreement or any other Loan Document so long as the Administrative
Agenthas not received, by such time, written notice of objection to such
Benchmark Replacement from the Required Lenders or from the Borrower
.
Upon and at any time after a Benchmark Transition Event, the Borrower may
revoke any request for aborrowing of, conversion to or continuation of Loans
to be made, converted or continued that would bear interest by reference to
such Benchmark until the Borrower's receipt of notice from the Administrative
Agent that a Benchmark Replacementhas replaced such Benchmark.
(ii)
Conforming Changes
.
In connection with the implementation andadministration of a Benchmark
Replacement, the Administrative Agent will have the right to make Conforming
Changes from time to time and, notwithstanding anything to the contrary herein
or in any other Loan Document, any amendments implementing suchConforming
Changes will become effective without any further action or consent of any
other party to this Agreement.
(iii)
Notices; Standards for Decisions and Determinations
.
The Administrative Agent will promptly notify the Borrower and the Lenders of
(x) any occurrence of a Benchmark Transition Event, (y) the implementation of
any BenchmarkReplacement, and (z) the effectiveness of any Conforming Changes.
The Administrative Agent will promptly notify the Borrower of the removal or
reinstatement of any tenor of
56
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a Benchmark pursuant to
Section
3.8(b)(iv)
. Any determination, decision or election that may be made by the
Administrative Agent or, if applicable, any Lender (or groupof Lenders)
pursuant to this
Section
3.8(b)
, including any determination with respect to a tenor, rate or adjustment or
of the occurrence or
non-occurrence
of an event, circumstanceor date and any decision to take or refrain from
taking any action, will be conclusive and binding absent manifest error and
may be made in its or their sole discretion and without consent from any other
party hereto or any other Loan Document,except, in each case, as expressly
required pursuant to this
Section
3.8(b)
.
(iv)
Unavailability of Tenor of Benchmark
.
At any time (including in connection with the implementation of a Benchmark
Replacement), (x) if the applicable then-current Benchmark is a term rate
(including Term SOFR) and either (A) anytenor for such Benchmark is not
displayed on a screen or other information service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable
discretion or (B) the administrator of such Benchmark hasprovided a public
statement or publication of information announcing that any tenor for such
Benchmark is not or will not be representative, then the Administrative Agent
may remove any tenor of such Benchmark and (y) the Administrative Agentmay
reinstate any such previously removed tenor for such Benchmark (including any
applicable Benchmark Replacement) settings.
Section
3.9
Indemnity
. The Borrower hereby indemnifies each of the Lenders against any loss or
expense(including any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain a Term SOFR Loan or Fixed
Rate Loan or from fees payable to terminate the deposits from which such funds
were obtained) which may ariseor be attributable to each Lender's obtaining,
liquidating or employing deposits or other funds acquired to effect, fund or
maintain any Loan (a) as a consequence of any failure by the Borrower to make
any payment when due of any amountdue hereunder in connection with a Term SOFR
Loan or a Fixed Rate Loan, (b) due to any failure of the Borrower to borrow,
continue or convert on a date specified therefor in a Notice of Borrowing or
Notice of Conversion/Continuation (whethervoluntary, mandatory, automatic, by
reason of acceleration, or otherwise) or (c) due to any payment, prepayment or
conversion of any Term SOFR Loan or Fixed Rate Loan on a date other than the
last day of the Interest Period therefor except asset forth in
Section
2.4
; provided that the foregoing indemnity shall not apply to any loss or expense
suffered by a Lender or resulting from the failure of such Lender to fund any
Loan at a time required hereunder. Theamount of such loss or expense shall be
determined, in the applicable Lender's reasonable discretion, (a) for any Term
SOFR Loans, based upon the assumption that such Lender funded its Commitment
Percentage of the Term SOFR Loans using anyreasonable attribution or averaging
methods which such Lender deems appropriate and practical and (b) for any
Fixed Rate Loans, as set forth on
Schedule 1.1(a)
. A certificate of such Lender setting forth in reasonable detail the basisfor
determining such amount or amounts necessary to compensate such Lender shall
be forwarded to the Borrower through the Administrative Agent and shall be
conclusively presumed to be correct save for manifest error. This covenant
shall survive thetermination of this Agreement and the payment of the Loans
and all other amounts payable hereunder for nine months.
Section
3.10
Increased Costs
.
(a)
Increased Costs Generally
. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirementagainst assets of, deposits with
or for the account of, or advances, loans or other credit extended or
participated in by, any Lender;
57
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(ii) subject any Recipient to any Taxes (other than (A) IndemnifiedTaxes, (B)
Taxes described in
clauses (b)
through
(d)
of the definition of Excluded Taxes and (C) Connection Income Taxes) on its
loans, loan principal, letters of credit, commitments or other obligations, or
itsdeposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender any other condition,cost or expense (other than
Taxes) affecting this Agreement;
and the result of any of the foregoing shall be to increase the cost to such
Lender or suchother Recipient of making, converting to, continuing or
maintaining any Loan (or of maintaining its obligation to make any such Loan),
or to reduce the amount of any sum received or receivable by such Lender or
such other Recipient hereunder(whether of principal, interest or any other
amount) then, upon written request of such Lender or other Recipient, the
Borrower shall promptly, and in any event, within ten Business Days, pay to
any such Lender or other Recipient, as the case maybe, such additional amount
or amounts as will compensate such Lender or other Recipient, as the case may
be, for such additional costs incurred or reduction suffered.
(b)
Capital Requirements
. If any Lender determines that any Change in Law affecting such Lender or any
lending office ofsuch Lender or such Lender's holding company, if any,
regarding capital or liquidity requirements, has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holdingcompany, if any, as a consequence of this Agreement, the
Commitment of such Lender or the Loans made by such Lender, to a level below
that which such Lender or such Lender's holding company could have achieved
but for such Change in Law (takinginto consideration such Lender's policies
and the policies of such Lender's holding company with respect to capital
adequacy and liquidity), then from time to time upon written request of such
Lender, the Borrower shall promptly and in anyevent, within ten Business Days,
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c)
Certificates for Reimbursement
. A certificate of a Lender or such other Recipient setting forth in
reasonable detailthe calculation of the amount or amounts necessary to
compensate such Lender or such other Recipient or any of their respective
holding companies, as the case may be, as specified in
clause (a)
or
(b)
of this Section and deliveredto the Borrower, shall be conclusive absent
manifest error. The Borrower shall pay such Lender or such other Recipient, as
the case may be, the amount shown as due on any such certificate within ten
Business Days after receipt thereof.
(d)
Delay in Requests
. Failure or delay on the part of any Lender or such other Recipient to demand
compensationpursuant to this Section shall not constitute a waiver of such
Lender's or such other Recipient's right to demand such compensation;
provided
that the Borrower shall not be required to compensate any Lender or any other
Recipientpursuant to this Section for any increased costs incurred or
reductions suffered more than nine months prior to the date that such Lender
or such other Recipient, as the case may be, notifies the Borrower of the
Change in Law giving rise to suchincreased costs or reductions, and of such
Lender's or such other Recipient's intention to claim compensation therefor
(except that if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-monthperiod referred to above shall
be extended to include the period of retroactive effect thereof).
(e) The Borrower shallcompensate each Lender for prepayment of Fixed Rate
Loans under the terms and provisions of
Schedule 1.1(a)
hereto, if applicable.
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Section
3.11
Taxes
.
(a)
Defined Terms
. For purposes of this
Section
3.11
, the term "Applicable Law"includes FATCA.
(b)
Payments Free of Taxes
. Any and all payments by or on account of any obligation of any CreditParty
under any Loan Document shall be made without deduction or withholding for any
Taxes, except as required by Applicable Law. If any Applicable Law (as
determined in the good faith discretion of an applicable Withholding Agent)
requires thededuction or withholding of any Tax from any such payment by a
Withholding Agent, then the applicable Withholding Agent shall be entitled to
make such deduction or withholding and shall timely pay the full amount
deducted or withheld to the relevantGovernmental Authority in accordance with
Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by
the applicable Credit Party shall be increased as necessary so that, after
such deduction or withholding has been made(including such deductions and
withholdings applicable to additional sums payable under this Section), the
applicable Recipient receives an amount equal to the sum it would have
received had no such deduction or withholding been made.
(c)
Payment of Other Taxes by the Credit Parties
. The Credit Parties shall timely pay to the relevant GovernmentalAuthority in
accordance with Applicable Law, or at the option of the Administrative Agent
timely reimburse it for the payment of, any Other Taxes.
(d)
Indemnification by the Credit Parties
. The Credit Parties shall jointly and severally indemnify each Recipient,within
ten days after demand therefor, for the full amount of any Indemnified Taxes
(including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section) payable or paid by such Recipient or required to
bewithheld or deducted from a payment to such Recipient and any reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority.A certificate as to the amount of such payment
or liability delivered to the Borrower by a Recipient (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Recipient, shall be conclusive absentmanifest error.
(e)
Indemnification by the Lenders
. Each Lender shall severally indemnify the Administrative Agent,within ten
days after demand therefor, for (i) any Indemnified Taxes attributable to such
Lender (but only to the extent that any Credit Party has not already
indemnified the Administrative Agent for such Indemnified Taxes and without
limitingthe obligation of the Credit Parties
to do so), (ii) any Taxes attributable to such Lender's failure to comply with
the provisions of
Section
10.8(d)
relating to the maintenance of a Participant Register and(iii) any Excluded
Taxes attributable to such Lender, in each case, that are payable or paid by
the Administrative Agent in connection with any Loan Document, and any
reasonable expenses arising therefrom or with respect thereto, whether or
notsuch Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to any Lender by the Administrative Agent shall be
conclusive absent manifesterror. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time
owing to such Lender under any Loan Document or otherwise payable by the
Administrative Agent to the Lender from any other sourceagainst any amount due
to the Administrative Agent under this
Section
3.11(e)
. The agreements in paragraph (i) shall survive the resignation and/or
replacement of the Administrative Agent.
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(f)
Evidence of Payments
. As soon as practicable after any payment ofTaxes any Credit Party to a
Governmental Authority pursuant to this
Section
3.11
, such Credit Party shall deliver to the Administrative Agent the original or
a certified copy of a receipt issued by such GovernmentalAuthority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(g)
Status of Lenders
.
(i) Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under anyLoan Document shall
deliver to the Borrower and the Administrative Agent, at the time or times
reasonably requested by the Borrower or the Administrative Agent, such
properly completed and executed documentation reasonably requested by the
Borroweror the Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any
Lender, if reasonably requested by the Borrower or the Administrative Agent,
shall deliver such otherdocumentation prescribed by Applicable Law or
reasonably requested by the Borrower or the Administrative Agent as will
enable the Borrower or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding orinformation reporting
requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation
(other than such documentation set forth in
Sections
3.11(g)(ii)(A)
,
(ii)(B)
and
(ii)(D)
below) shall not be required if in the Lender's reasonable judgment such
completion, execution or submission would subject such Lender to any
materialunreimbursed cost or expense or would materially prejudice the legal
or commercial position of such Lender.
(ii) Withoutlimiting the generality of the foregoing:
(A) Any Lender that is a U.S. Person shall deliver to the Borrower and
theAdministrative Agent on or prior to the date on which such Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), executed
copies of IRS Form
W-9
certifying that such Lender is exempt from United States federal backup
withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to the Borrower and the AdministrativeAgent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or theAdministrative
Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming thebenefits of an income tax
treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed copies of IRS Form
W-8BEN
or IRS Form
W-8BEN-E
establishing an exemption from, or reduction of, United States federal
withholding Tax pursuant to the "interest" article of such tax treaty and(y)
with respect to any other applicable payments under any Loan Document, IRS
Form IRS Form
W-8BEN
or
W-8BEN-E
establishingan exemption from, or reduction of, United States federal
withholding Tax pursuant to the "business profits" or "other income" article
of such tax treaty;
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(2) executed copies of IRS Form
W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of theexemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of
Exhibit
H-1
to the effect that such Foreign Lender is not a"bank" within the meaning of
Section 881(c)(3)(A) of the Code, a "10 percent shareholder" of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or a "controlled
foreign corporation"described in Section 881(c)(3)(C) of the Code (a "
U.S. Tax Compliance Certificate
") and (y) executed copies of IRS Form
W-8BEN
or IRS Form
W-8BEN-E;
or
(4) to the extent a Foreign Lender is not the beneficial owner,executed copies
of IRS Form
W-8IMY,
accompanied by IRS Form
W-8ECI,
IRS Form
W-8BEN,
IRS Form
W-8BEN-E,
a U.S. Tax Compliance Certificate substantially in the form of
Exhibit H-2
or
Exhibit
H-3
, IRS Form
W-9,
and/or other certification documents from each beneficial owner, as applicable;
provided
that if the Foreign Lender is a partnershipand one or more direct or indirect
partners of such Foreign Lender are claiming the portfolio interest exemption,
such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of
Exhibit
H-4
on behalf of each such direct and indirect partner;
(C) any Foreign Lendershall, to the extent it is legally entitled to do so,
deliver to the Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender underthis Agreement (and from time to time
thereafter upon the reasonable request of the Borrower or the Administrative
Agent), executed copies of any other form prescribed by Applicable Law as a
basis for claiming exemption from or a reduction in UnitedStates federal
withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by Applicable Law to permit the Borrower or
the Administrative Agent to determine the withholding or deduction required to
be made;and
(D) if a payment made to a Lender under any Loan Document would be subject to
United States federal withholding Taximposed by FATCA if such Lender were to
fail to comply with the applicable reporting requirements of FATCA (including
those contained in Section 1471(b) or 1472(b) of the Code, as applicable),
such Lender shall deliver to the Borrower and theAdministrative Agent at the
time or times prescribed by law and at such time or times reasonably requested
by the Borrower or the Administrative Agent such documentation prescribed by
Applicable Law (including as prescribed bySection 1471(b)(3)(C)(i) of the
Code) and such additional documentation reasonably requested by the Borrower
or the Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with their obligations underFATCA and to
determine that such Lender has complied with such Lender's obligations under
FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this
clause (D)
, "FATCA" shall includeany amendments made to FATCA after the date of this
Agreement.
Each Lender agrees that if any form or certification it previouslydelivered
expires or becomes obsolete or inaccurate in any respect, it shall update such
form or certification or promptly notify the Borrower and the Administrative
Agent in writing of its legal inability to do so.
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(h)
Treatment of Certain Refunds
. If any party determines, in itssole discretion exercised in good faith, that
it has received a refund of any Taxes as to which it has been indemnified
pursuant to this
Section
3.11
(including by the payment of additional amounts pursuant to this
Section
3.11
), it shall pay to the indemnifying party an amount equal to such refund (but
only to the extent of indemnity payments made under this Section with respect
to the Taxes giving rise to such refund), net of all
out-of-pocket
expenses (including Taxes) of such indemnified party and without interest
(other than any interest paid by the relevant Governmental Authority with
respect tosuch refund). Such indemnifying party, upon the request of such
indemnified party, shall repay to such indemnified party the amount paid over
pursuant to this
Section
3.11(h)
(plus any penalties, interest or other chargesimposed by the relevant
Governmental Authority) in the event that such indemnified party is required
to repay such refund to such Governmental Authority. Notwithstanding anything
to the contrary in this
Section
3.11(h)
, inno event will the indemnified party be required to pay any amount to an
indemnifying party pursuant to this
Section
3.11(h)
the payment of which would place the indemnified party in a less favorable net
after-Tax
position than the indemnified party would have been in if the Tax subject to
indemnification and giving rise to such refund had not been deducted, withheld
or otherwise imposed and the indemnificationpayments or additional amounts
with respect to such Tax had never been paid. This
Section
3.11(h)
shall not be construed to require any indemnified party to make available its
Tax returns (or any other information relatingto its Taxes that it deems
confidential) to the indemnifying party or any other Person.
(i)
[Reserved.
]
(j)
Survival
. Each party's obligations under this
Section
3.11
shall survive theresignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender, the termination of
the Aggregate Commitments and the repayment, satisfaction or discharge of all
obligations under any LoanDocument.
Section
3.12
Mitigation Obligations; Replacement of Lenders
.
(a)
Designation of a Different Lending Office
. If any Lender requests compensation under
Section
3.10
, or requires the Borrower to pay any Indemnified Taxes or additional amounts
to any Lender or any Governmental Authority for the account of any Lender
pursuant to
Section
3.11
, thensuch Lender shall, at the request of the Borrower, use reasonable
efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches oraffiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to
Section
3.10
or
Section
3.11
, as the case may be, inthe future and (ii) would not subject such Lender to
any unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender in any material respect. The Borrower hereby agrees to pay all
reasonable costs and expensesincurred by any Lender in connection with any
such designation or assignment.
(b)
Replacement of Lenders
. If anyLender requests compensation under
Section
3.10
, or if the Borrower is required to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account of any
Lender pursuant to
Section
3.11
, and, in each case, such Lender has declined or is unable to designate a
different lending office in accordance with
Section
3.12(a)
, or if any Lender or Voting Participant is aDefaulting Lender, Defaulting
Voting Participant or a
Non-Consenting
Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender or Voting Participant and the AdministrativeAgent, require such
Lender or Voting Participate to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by,
Section
10.8
), all of its
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interests, rights (other than its existing rights to payments pursuant to
Section
3.10
or
3.11
) and obligations under this Agreement and the related LoanDocuments to an
Eligible Assignee that shall assume such obligations (which assignee or
replacement Voting Participant may be another Lender or Voting Participant, if
a Lender or Voting Participant accepts such assignment or delegation);
provided
that, in the case of a Voting Participant, the replacement Voting Participant
shall be reasonably acceptable to the Lender that was the seller of the
applicable participation;
provided
,
further
, that:
(i) the Borrower shall have paid to the Administrative Agent the assignment
fee (if any) specified in
Section
10.8
;
(ii) such Lender or Voting Participant, as applicable, shall have received
paymentof an amount equal to the outstanding principal of its Loans (or
participations therein), accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including
any amounts under
Section
3.9
) from the assignee or replacement Voting Participant (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for
compensation under
Section
3.10
or payments required to be made pursuant to
Section
3.11
, such assignment will result in a reduction in such compensation or payments
thereafter;
(iv) such assignment or participation does not conflict with Applicable Law; and
(v) in the case of any assignment or participation resulting from a Lender or
Voting Participant becoming a
Non-Consenting
Lender, the applicable assignee or replacement Voting Participant shall have
consented to the applicable amendment, waiver or consent.
A Lender or Voting Participant shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver bysuch
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
Section
3.13
Illegality
.
If any Lender reasonably determines that any Change in Law has made
itunlawful, or that any Governmental Authority has asserted after the date
hereof that it is unlawful, for any Lender or its applicable lending office to
make, maintain or fund any Loans or to determine or charge interest rates
based upon anyBenchmark, then, upon notice thereof by such Lender to the
Borrower (through the Administrative Agent), any obligation of the Lenders to
make such Loans, and any right of the Borrower to continue such Loans, shall
be suspended until such Lendernotifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, if necessary to avoid
such illegality upon demand from any Lender (with acopy to the Administrative
Agent), (a) convert all such Loans into Daily Simple SOFR Loans (or if the
Daily Simple SOFR Rate is itself subject to such notice, Loans subject to such
other then applicable Successor Rate) or, in the case of CommercialBank Term
Loans, Base Rate Loans, in each case at the end of the applicable Interest
Period or (b) if the then applicable Successor Rate (other than for the
avoidance of doubt, the Daily Simple SOFR Rate) is itself subject to such
notice,prepay all such Loans or, in the case of Commercial Bank Term Loans,
convert all such Loans to Base Rate Loans, in each case, (i) if such Loans are
not subject to an Interest Period, immediately, or, (ii) if such Loans are
subject to anInterest Period, on the last day of the Interest Period therefor,
if all affected Lenders may lawfully continue to maintain such Loans to such
day, or immediately, if any Lender may not lawfully continue to maintain such
Loans to such
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day, in each case until the Administrative Agent is advised in writing by each
affected Lender that it is no longer illegal for such Lender to determine or
charge interest rates based upon suchBenchmark. Upon any such prepayment or
conversion, the Borrower shall also pay accrued and unpaid interest on the
amount so prepaid or converted, together with any additional amounts required
pursuant to
Section
3.9
.
Section
3.14
Defaulting Lenders
.
(a)
Defaulting Lender Adjustments
. Notwithstanding anything to the contrary contained in this Agreement, if any
Lenderbecomes a Defaulting Lender, then, until such time as such Lender is no
longer a Defaulting Lender, to the extent permitted by Applicable Law:
(i)
Waivers and Amendments
. Such Defaulting Lender's right to approve or disapprove any amendment,
waiver orconsent with respect to this Agreement shall be restricted as set
forth in the definition of Required Lenders and
Section
10.2
.
(ii)
Defaulting Lender Waterfall
. Any payment of principal, interest, fees or other amounts received by
theAdministrative Agent for the account of such Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to
Article VIII
or otherwise) or received by the Administrative Agent from a Defaulting Lender
pursuant to
Section
10.4
shall be applied at such time or times as may be determined by the
Administrative Agent as follows:
first
, to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agenthereunder;
second
, as the Borrower may request (so long as no Default or Event of Default
exists), to the funding of any Loan or funded participation in respect of
which such Defaulting Lender has failed to fund its portion thereof asrequired
by this Agreement, as determined by the Administrative Agent;
third
, if so determined by the Administrative Agent and the Borrower, to be held in
a deposit account and released
pro
rata
in order to satisfy suchDefaulting Lender's potential future funding
obligations with respect to Loans and funded participations under this
Agreement;
fourth
, to the payment of any amounts owing to the Lenders as a result of any
judgment of a court of competentjurisdiction obtained by any Lender against
such Defaulting Lender as a result of such Defaulting Lender's breach of its
obligations under this Agreement;
fifth
, so long as no Default or Event of Default exists, to the payment of
anyamounts owing to the Borrower as a result of any judgment of a court of
competent jurisdiction obtained by the Borrower against such Defaulting Lender
as a result of such Defaulting Lender's breach of its obligations under this
Agreement; and
sixth
, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction;
provided
that if (1) such payment is a payment of the principal amount of any Loans in
respect of which such Defaulting Lender has notfully funded its appropriate
share, and (2) such Loans were made at a time when the conditions set forth in
Section
4.2
were satisfied or waived, such payment shall be applied solely to pay the
Loans of all
Non-Defaulting
Lenders on a
pro
rata
basis prior to being applied to the payment of any Loans of such Defaulting
Lender until such time as all Loans are held by the Lenders
pro
rata
inaccordance with the Commitments under the applicable Credit Facility without
giving effect to
Section
3.14(b)
. Any payments, prepayments or other amounts paid or payable to a Defaulting
Lender that are applied (or held) topay amounts owed by a Defaulting Lender
pursuant to this
Section
3.14(a)(ii)
shall be deemed paid to and redirected by such Defaulting Lender, and each
Lender irrevocably consents hereto.
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(iii)
Certain Fees
.
(A) No Defaulting Lender shall be entitled to receive any Commitment Fee for
any period during which that Lender is aDefaulting Lender (and the Borrower
shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Lender).
(B) With respect to any Commitment Fee not required to be paid to any
Defaulting Lender pursuant to
clause(A)
above, the Borrower shall not be required to pay the remaining amount of any
such fee.
(b)
DefaultingLender Cure
. If the Borrower and the Administrative Agent agree in writing that a Lender
is no longer a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such noticeand
subject to any conditions set forth therein, such Lender will, to the extent
applicable, purchase at par that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may determine
to be necessaryto cause the Loans to be held
pro
rata
by the Lenders in accordance with such Lenders' respective Commitment
Percentages, whereupon such Lender will cease to be a Defaulting Lender;
provided
that no adjustments will be maderetroactively with respect to fees accrued or
payments made by or on behalf of the Borrower while that Lender was a
Defaulting Lender; and
provided
,
further
, that except to the extent otherwise expressly agreed by the affected
parties,no change hereunder from Defaulting Lender to Lender will constitute a
waiver or release of any claim of any party hereunder arising from that
Lender's having been a Defaulting Lender.
(c)
Defaulting Participants
. To the extent applicable, the provisions of this
Section
3.14
shall apply to Participants and Defaulting Voting Participants mutatis mutandis.
Section
3.15
CapitalPlans
.
(a) Each party hereto acknowledges that the bylaws and capital plan, as
applicable, of each Farm CreditLender that is a Lender hereunder (as each may
be amended from time to time) shall govern (i) the rights and obligations of
the parties with respect to the Farm Credit Equities and any patronage refunds
or other distributions made on accountthereof or on account of each Borrower's
patronage with such Farm Credit Lender, (ii) each Borrower's eligibility for
patronage distributions from such Farm Credit Lender (in the form of Farm
Credit Equities and cash) and(iii) patronage distributions, if any, in the
event of a sale of a participation interest. Subject to
Section
10.8(d)
, each Farm Credit Lender that is a Lender hereunder reserves the right to
assign or sellparticipations in all or any part of its Commitment or
outstanding Loans hereunder on a
non-patronage
basis.
(b) Each party hereto acknowledges that each Farm Credit Lender that is a
Lender hereunder has a statutory first Lien pursuantto the Farm Credit Act of
1971 (as amended from time to time) on all Farm Credit Equities that any
Borrower may now own or hereafter acquire, which statutory Lien shall be the
sole and exclusive benefit of each such Farm Credit Lender.Notwithstanding
anything herein or in any other Loan Document to the contrary, the Farm Credit
Equities shall not constitute security for the Obligations due to any other
Lender. To the extent that any of the Loan Documents create a Lien on the
FarmCredit Equities or on patronage accrued by any Farm Credit Lender for the
account of the Borrower (including, in each case, proceeds thereof), such Lien
shall be for the sole and exclusive benefit of such Farm Credit Lender and
shall not be subjectto pro rata sharing hereunder. Neither the Farm Credit
Equities nor any accrued patronage shall be offset against the Obligations
except that, in the event of an Event of Default, each Farm Credit Lender that
is a Lender hereunder may elect to applythe cash portion of any patronage
distribution or retirement of equity to amounts due under this Agreement. The
Borrower
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acknowledges that any corresponding income or capital gains tax liability
associated with such application is the sole responsibility of the Borrower.
No Farm Credit Lender shall have anobligation to retire the Farm Credit
Equities upon any Event of Default, Default or any other default by any
Borrower or any other Credit Party, or at any other time, either for
application to the Obligations or otherwise.
ARTICLE IV.
CONDITIONSOF CLOSING AND BORROWING
Section
4.1
Conditions to Initial Extensions of Credit
. Theobligation of the Lenders to make the initial Loans on the Closing Date
is subject to the satisfaction (or waiver in accordance with
Section
10.2
) of each of the following conditions:
(a)
Executed Loan Documents
. This Agreement, a Note in favor of each Lender requesting a Note, the
Security Documentsand the Intercreditor Agreement together with any other
applicable Loan Documents, shall have been duly authorized, executed and
delivered to the Administrative Agent by the parties thereto, in each case in
form and content acceptable to theAdministrative Agent and the Lenders and
shall be in full force and effect.
(b)
ABL Facility
. The AdministrativeAgent shall have received copies of an amendment to the
ABL Facility to permit the Transactions, duly executed by each party thereto,
in form and substance acceptable to the Borrower and the Administrative Agent.
(c)
Closing Certificates; Etc.
The Administrative Agent shall have received each of the following in form and
substancereasonably satisfactory to the Administrative Agent:
(i)
Officer's Certificate
. A certificate from aResponsible Officer of the Borrower to the effect that:
(A) since February 20, 2024, there has not been a Material Adverse Effect (as
defined in the Augusta Acquisition Agreement); (B) the Augusta Mill
Acquisition has been consummated, orsubstantially concurrently with the
initial funding of the applicable Credit Facilities on the Closing Date, shall
be consummated, in all material respects in accordance with the terms of the
Augusta Acquisition Agreement; and (C) theconditions set forth in
Section
4.1(e)
have been satisfied.
(ii)
Certificate of Secretary ofeach Credit Party
. A certificate of a Responsible Officer of each Credit Party certifying as to
the incumbency and genuineness of the signature of each officer of such Credit
Party executing Loan Documents to which it is a party and certifyingthat
attached thereto is a true, correct and complete copy of (A) the articles or
certificate of incorporation or formation (or equivalent), as applicable, of
such Credit Party and all amendments thereto, certified as of a recent date by
theappropriate Governmental Authority in its jurisdiction of incorporation,
organization or formation (or equivalent), as applicable, (B) the bylaws or
other governing document of such Credit Party as in effect on the Closing
Date,(C) resolutions duly adopted by the board of directors (or other
governing body) of such Credit Party authorizing and approving the
transactions contemplated hereunder and the execution, delivery and
performance of this Agreement and the otherLoan Documents to which it is a
party, and (D) each certificate required to be delivered pursuant to
Section
4.1(c)(iii)
.
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(iii)
Certificates of Good Standing
. Certificates as of a recent dateof the good standing of each Credit Party
under the laws of its jurisdiction of incorporation, organization or formation
(or equivalent), as applicable.
(iv)
Opinions of Counsel
. Opinions of counsel to the Credit Parties addressed to the Administrative
Agent and theLenders with respect to the Credit Parties, the Loan Documents
and such other matters as the Administrative Agent shall reasonably request
(which such opinions shall expressly permit reliance by permitted successors
and assigns of the AdministrativeAgent and the Lenders).
(d)
Personal Property Collateral
.
(i)
Filings and Recordings
. The Administrative Agent shall have received all filings and recordations in
the applicableUniform Commercial Code filing offices and in the United States
Copyright Office and United States Patent and Trademark Office that are
necessary to perfect the security interests of the Administrative Agent, on
behalf of the Secured Parties, in theCollateral and the Administrative Agent
shall have received evidence reasonably satisfactory to the Administrative
Agent that upon such filings and recordations such security interests
constitute valid and perfected first priority Liens thereon(subject to the
Intercreditor Agreement and Permitted Liens).
(ii)
Pledged Collateral
. Subject to the IntercreditorAgreement, the Administrative Agent shall have
received (A) original stock certificates or other certificates evidencing the
certificated Capital Stock pledged pursuant to the Security Documents,
together with an undated stock power for eachsuch certificate duly executed in
blank by the registered owner thereof and (B) each original promissory note
pledged and required to be delivered pursuant to the Security Documents
together with an undated allonge for each such promissory noteduly executed in
blank by the holder thereof, to be held pursuant to the Intercreditor
Agreement;
provided
, however, that the delivery of original stock certificates or other
certificates evidencing the certificated Capital Stock pledgedpursuant to the
Security Documents of any Subsidiaries formed or acquired in connection with
the Augusta Mill Acquisition is not able to be provided on the date of the
consummation of the Augusta Mill Acquisition after the Borrower's use
ofcommercially reasonable efforts to do so, then the provision of such
original stock certificates or other certificates shall be required by the
date that is sixty (60) days following the Closing Date (or such later date as
the AdministrativeAgent shall approve in its sole discretion).
(iii)
[Reserved]
.
(iv)
[Reserved]
.
provided
that to the extent the perfection of the security interest in any such
Collateral (other than as set forth in
clause(d)(i)
(but only with respect to filings and recordations in the applicable Uniform
Commercial Code filing offices) and
(d)(ii)
above) is not able to be provided on the Closing Date after the Borrower's use
of commercially reasonableefforts to do so, the perfection of such security
interest in such Collateral will not constitute a condition precedent to the
availability of any borrowing on the Closing Date, but such perfection shall
be required prior to the date sixty(60) days following such date (or such
later date as the Administrative Agent shall approve in its sole discretion).
67
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(e) The Specified Representations and the Specified Acquisition AgreementReprese
ntations are true, correct and complete in all material respects (except to
the extent any such representation and warranty is qualified by materiality or
reference to Material Adverse Effect, in which case, such representation and
warrantyshall be true, correct and complete in all respects).
(f)
Financial Matters
.
(i)
Financial Statements
. The Administrative Agent shall have received (A) the audited Consolidated
balance sheetof the Borrower and its Subsidiaries and the related audited
statements of income and retained earnings and cash flows for setting forth in
comparative form consolidated figures for the Fiscal Year ending December 31,
2023, for the three(3) most recently completed Fiscal Years ended at least 90
days prior to the Closing Date and (B) unaudited pro forma Consolidated
balance sheet of the Borrower and its Subsidiaries and related unaudited
interim statements of income andretained earnings and cash flows as of the
last day of the most recently completed four-fiscal quarter period ended at
least 45 days prior to the Closing Date (or if such period includes the end of
the Borrower's Fiscal Year, at least 90 daysprior to the Closing Date) for
which financial statements of Borrower and its Subsidiaries are available and
provided pursuant to
clause (A)
above, prepared after giving effect to the Transactions on a pro forma basis;
provided
,that, the Administrative Agent and the Lenders confirm that the financial
statements set forth in
clause (A)
above for the Borrower's Fiscal Years ended December 31, 2021 and December 31,
2022 have been delivered;
provided
further
that the Borrower shall be deemed to have satisfied the requirement set forth in
clause (A)
above to the extent that any such financial statements have been filed and are
publicly available electronicallyat
www.sec.gov
(or a successor web site thereto).
(ii) [
Reserved
].
(iii)
Solvency Certificate
. The Borrower shall have delivered to the Administrative Agent a certificate,
in form andsubstance reasonably satisfactory to the Administrative Agent, and
certified as accurate by the chief financial officer of the Borrower, that
after giving effect to the Transactions the Credit Parties, on a Pro Forma
Basis, are Solvent.
(iv)
Payment at Closing
. The Borrower shall have paid or made arrangements to pay contemporaneously
with closing(A) to the Administrative Agent, the Arrangers and the Lenders the
fees set forth or referenced in
Section
3.3(b)
and any other accrued and unpaid fees or commissions due hereunder on and as
of the Closing Date, and(B) all reasonable and documented fees, charges and
disbursements of counsel to the Administrative Agent (directly to such counsel
if requested by the Administrative Agent) required to be paid hereunder to the
extent invoiced to the Borrower atleast three Business Days prior to the
Closing Date.
(g)
Miscellaneous
.
(i)
Notice of Borrowing
. The Administrative Agent shall have received a Notice of Borrowing in
accordance withSection 2.2(a) for the Loans to be made on the Closing Date.
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(ii)
PATRIOT ACT, etc
. The Lenders shall have received in form andsubstance satisfactory to each
Lender: (a) all documentation and other information required by bank
regulatory authorities under applicable "know-your-customer" and anti-money
laundering rules and regulations, including, withoutlimitation, the Patriot
Act, to the extent requested at least ten (10) days prior to the Closing Date;
and (b) to the extent that the Borrower qualifies as a "legal entity customer
under 31 C.F.R. (s)-1010.230, a certificationregarding beneficial ownership
required by the Beneficial Ownership Regulation.
(iii)
Waiver of Borrower Rights
.The Administrative Agent shall have received an executed Waiver of Borrower
Rights letter in substantially the form delivered by the Borrower to the
Administrative Agent on October 31, 2016.
Without limiting the generality of the provisions of
Section
9.3(c)
, for purposes of determining compliance with the conditionsspecified in this
Section
4.1
, the Administrative Agent and each Lender that has signed this Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matterrequired thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed
Closing Date specifying its objection thereto.
Section
4.2
Conditions to Extensions of Credit
Under the Term Revolver Facility
. Theobligations of the Farm Credit Lenders that are Lenders or Participants
to make or participate in any Term Revolver Loan after the Closing Date are
subject to the satisfaction (or waiver in accordance with
Section
10.2
) ofthe following conditions precedent on the relevant borrowing, issuance or
extension date:
(a)
Continuation ofRepresentations and Warranties
. The representations and warranties contained in this Agreement and the other
Loan Documents shall be true and correct in all material respects, except for
any representation and warranty that is qualified bymateriality or reference
to Material Adverse Effect, which such representation and warranty shall be
true and correct in all respects, on and as of such borrowing, issuance or
extension date with the same effect as if made on and as of such date(except
for any such representation and warranty that by its terms is made only as of
an earlier date, which representation and warranty shall remain true and
correct in all material respects as of such earlier date, except for any
representationand warranty that is qualified by materiality or reference to
Material Adverse Effect, which such representation and warranty shall be true
and correct in all respects as of such earlier date).
(b)
No Existing Default
. No Default or Event of Default shall have occurred and be continuing on the
borrowing date withrespect to such Loan or after giving effect to the Loans to
be made on such date.
(c)
Notices
. The AdministrativeAgent shall have received a Notice of Borrowing from the
Borrower in accordance with
Section
2.2(a)
.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents andwarrants to
the Administrative Agent and each Lender that, which representations and
warranties shall be deemed made on the Closing Date and as otherwise set forth
in
Section
4.2
, that:
Section
5.1
Financial Condition
. The audited consolidated balance sheets of the Borrower and itsconsolidated
Subsidiaries as at December 31, 2021, December 31, 2022 and December 31, 2023,
and the related consolidated statements of income, stockholders' equity and
cash flows for the fiscal years ended on such dates, reportedon by and
accompanied by an unqualified report from KPMG LLP, present fairly, in all
material respects, the consolidated financial condition of the Borrower and
its consolidated Subsidiaries as at such date, and the consolidated results of
itsoperations and its consolidated cash flows for the respective fiscal years
then ended. The unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at September 30, 2023, and the related unaudited
consolidatedstatement of income, stockholders' equity and cash flow for the
applicable three-month period ended on such date, present fairly, in all
material respects, the consolidated financial condition of the Borrower and
its consolidated Subsidiariesas at each such date, and the consolidated
results of its operations and its consolidated cash flow for the three-month
period then ended (subject to normal
year-end
audit adjustments). All such financialstatements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by
the aforementioned firm of accountants and disclosed therein),except that the
interim financial statements are subject to
year-end
adjustments and are lacking footnote disclosures.
Section
5.2
No Change
. Since December 31, 2023, there has been no development or event that hashad
or could reasonably be expected to have a Material Adverse Effect.
Section
5.3
Existence; Compliancewith Law
. Each Credit Party (a) is duly organized or formed, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate or similar organizational power and authority, and thelegal
right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is
duly qualified as a foreign corporation or other organization and in good
standingunder the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not, in the
aggregate, reasonably be expected tohave a Material Adverse Effect and (d) is
in compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section
5.4
Power; Authorization; Enforceable Obligations
.
(a) Each Credit Party has thecorporate or similar organizational power and
authority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and, in the case of the Borrower, to obtain
extensions of credit hereunder. Each Credit Party hastaken all necessary
corporate or similar organizational action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrower, to authorize the extensions of credit on the terms
andconditions of this Agreement. Each Loan Document has been duly executed and
delivered on behalf of each Credit Party party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and bindingobligation of each Credit Party party thereto,
enforceable against each such Credit Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar lawsaffecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(b) No consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or anyother Person is required in
connection with the extensions of credit hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the Loan Documents, except (i) consents, authorizations, filingsand notices
that have been obtained or made and are in full force and effect and (ii) the
filings referred to in
Section
5.19
.
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Section
5.5
No Legal Bar
. The execution, deliveryand performance of this Agreement and the other Loan
Documents, the borrowings hereunder and the use of the proceeds thereof will
not violate any Requirement of Law or any Contractual Obligation of any Credit
Party, except for violations that couldnot reasonably be expected to have a
Material Adverse Effect, and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such ContractualObligation (other
than the Liens created by the Security Documents).
Section
5.6
Litigation
. Nolitigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against any Group Member or against any of their respective
properties (a) withrespect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect if determined adversely to any
applicable Group Member.
Section
5.7
No Default
. No Default or Event of Default has occurred and is continuing.
Section
5.8
Ownership of Property; Liens
. Each Group Member has such title in fee simple or validleasehold to the real
property owned or leased by it as is necessary to the conduct of its business
and valid and legal title to all of its personal property owned by it, in each
case, subject to Permitted Liens.
Section
5.9
Intellectual Property
. Except as could not reasonably be expected to have a MaterialAdverse Effect,
each Group Member owns, or is licensed to use, all material Intellectual
Property reasonably necessary for the conduct of its business as currently
conducted, free and clear of all Liens, except as permitted by
Section
7.2
, and to the knowledge of each Credit Party, the use of any such material
Intellectual Property and the conduct of each of the Group Members does not
infringe in any material respect upon the rights of anyPerson. Except as could
not reasonably be expected to have a Material Adverse Effect, no claim has
been asserted or is pending by any Person challenging or questioning the use
of any material Intellectual Property or the validity or effectiveness ofany
material Intellectual Property, nor does the Borrower know of any valid basis
for any such claim.
Section
5.10
Taxes
. Each Credit Party has filed or caused to be filed all Federal, state and
othermaterial Tax returns that are required to be filed and has paid all Taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other Taxes, fees or other charges imposed
on it or any of itsproperty by any Governmental Authority (other than (i) any
the amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided onthe books of the relevant Group Member, or (ii) to
the extent that the failure to file or pay, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect); to the
knowledge of the Borrower, no materialLiens for Taxes have been filed, and, to
the knowledge of the Borrower, no claim is being asserted, with respect to any
such Tax, fee or other charge.
Section
5.11
Federal Regulations
. The Borrower is not engaged and will not engage, principally or asone of its
important activities, in the business of purchasing or carrying Margin Stock,
or extending credit for the purpose of purchasing or carrying Margin Stock,
and no part of the proceeds of any Loan hereunder will be used to buy or carry
anyMargin Stock. Following the application of the proceeds of each Loan, not
more than 25% of the value of the assets (either of the Borrower only or of
the Borrower and its Subsidiaries on a consolidated basis) will be Margin
Stock.
Section
5.12
Labor Matters
. Except as, in the aggregate, could not reasonably be expected to have
aMaterial Adverse Effect: (a) there are no strikes or other labor disputes
against any Group Member pending or, to the knowledge of the Borrower,
threatened; (b) hours worked by and payment made to employees of each Credit
Party have notbeen in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters; and (c) all payments
due from any Credit Party on account of employee health and welfare insurance
have been paid or accruedas a liability on the books of the relevant Credit
Party.
71
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Section
5.13
ERISA
. Except as could not reasonablybe expected, individually or in the aggregate,
to have a Material Adverse Effect: (a) each Group Member and each of their
respective ERISA Affiliates (and in the case of a Pension Plan or a
Multiemployer Plan, each of their respective ERISAAffiliates) are in
compliance with all applicable provisions and requirements of ERISA and the
Code and other federal and state laws and the regulations and published
interpretations thereunder with respect to each Plan and Pension Plan and
haveperformed all their obligations under each Plan and Pension Plan; (b) no
ERISA Event or Foreign Plan Event has occurred or is reasonably expected to
occur, and no ERISA Affiliate is aware of any fact, event or circumstance that
could reasonablybe expected to constitute or result in an ERISA Event; (c)
each Plan or Pension Plan which is intended to qualify under Section 401(a) of
the Code has received a favorable determination letter from the IRS indicating
that such Plan orPension Plan is so qualified and the trust related thereto
has been determined by the Internal Revenue Service to be exempt from federal
income tax under Section 501(a) of the Code or an application for such a
determination is currently pendingbefore the Internal Revenue Service and, to
the knowledge of the Borrower, nothing has occurred subsequent to the issuance
of the most recent determination letter which would cause such Plan or Pension
Plan to lose its qualified status; (d) noliability to the PBGC (other than
required premium payments), the IRS, any Plan or Pension Plan or any trust
established under Title IV of ERISA has been or is reasonably expected to be
incurred by any Group Member or any of their ERISA Affiliates;(e) each of the
Group Members' ERISA Affiliates has complied with the requirements of Section
515 of ERISA with respect to each Multiemployer Plan and is not in "default"
(as defined in Section 4219(c)(5) of ERISA) withrespect to payments to a
Multiemployer Plan; (f) all amounts required by applicable law with respect
to, or by the terms of, any retiree welfare benefit arrangement maintained by
any Group Member or any ERISA Affiliate or to which any GroupMember or any
ERISA Affiliate has an obligation to contribute have been accrued in
accordance with ASC Topic
715-60;
(g) as of the most recent valuation date for each Multiemployer Plan for which
the actuarialreport is available and except as reported in the most recent Form
10-K
filed with the SEC, no Group Member nor any of their respective ERISA
Affiliates has any potential liability for a complete withdrawalfrom such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section
4221(e) ofERISA; (h) there has been no Prohibited Transaction or violation of
the fiduciary responsibility rules with respect to any Plan or Pension Plan
that has resulted or could reasonably be expected to result in a Material
Adverse Effect; and(i) neither any Group Member nor any ERISA Affiliate
maintains or contributes to, or has any unsatisfied obligation to contribute
to, or liability under, any active or terminated Pension Plan other than (i)
on the Closing Date, thoselisted on
Schedule 5.13
hereto and (ii) thereafter, Pension Plans not otherwise prohibited by this
Agreement. Except as disclosed on
Schedule 5.13
, the present value of all accumulated benefit obligations under each Pension
Plan,did not, as of the close of its most recent plan year, exceed by more
than $10,000,000 the fair market value of the assets of such Pension Plan
allocable to such accrued benefits (determined in both cases using the
applicable assumptions forfinancial statement reporting purposes under ASC
Topic 715), and the present value of all accumulated benefit obligations of
all underfunded Pension Plans did not, as of the date of the most recent
financial statements reflecting such amounts,exceed by more than $10,000,000
the fair market value of the assets of all such underfunded Pension Plans
(determined in both cases using the applicable assumptions for financial
statement reporting purposes under ASC Topic 715).
Section
5.14
Investment Company Act; Other Regulations
. No Credit Party is an "investmentcompany", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of
1940, as amended. No Credit Party is subject to regulation under any
Requirement of Law (other thanRegulation X of the Board) that limits its
ability to incur Indebtedness.
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Section
5.15
Subsidiaries; Capital Stock
. As of theClosing Date, (a)
Schedule 5.15
sets forth the name and jurisdiction of incorporation or formation, as
applicable, of each Subsidiary and, as to each such Subsidiary, the percentage
of each class of Capital Stock owned by any CreditParty and (b) there are no
outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options and restricted stock units
granted to employees or directors and directors' qualifyingshares) of any
nature relating to any Capital Stock of the Borrower or any Subsidiary, except
(i) with respect to Capital Stock of Credit Parties, as created by the Loan
Documents and (ii) otherwise, as permitted by this Agreement.
Section
5.16
Use of Proceeds
. The proceeds of the Loans, shall be used to finance the Transactions andin
the case of the Term Revolver Facility, any future available undrawn Term
Revolver Commitments may be used for working capital and general corporate
purposes.
Section
5.17
Environmental Matters
. Except as, individually or in the aggregate, could not reasonablybe expected
to have a Material Adverse Effect:
(a) Materials of Environmental Concern are not present at, on, under, in,or
about any real property now or formerly owned, leased or operated by any Group
Member or at any other location (including, without limitation, any location
to which Materials of Environmental Concern have been sent for
re-use
or recycling or for treatment, storage, or disposal), in amounts or
concentrations or under circumstances that constitute or constituted a
violation of, or could give rise to liability under, anyEnvironmental Law;
(b) no Group Member has received or is aware of any notice of violation,
alleged violation,
non-compliance,
liability or potential liability under or relating to any Environmental Law,
nor does the Borrower have knowledge or reason to believe that any such notice
will be received or is being threatened;
(c) no judicial, arbitral, governmental or administrative litigation,
investigation, proceeding or similar action ispending or, to the knowledge of
the Borrower, threatened, under any Environmental Law to which any Group
Member is or will be named as a party, nor has any Group Member entered into
or agreed to any settlements or other agreements, consent decreesor other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements relating to compliance with or
liability under any Environmental Law that have not been fully and finally
resolved;
(d) each Group Member, is in compliance, and within the period of all
applicable statute of limitation has been in compliance,with all applicable
Environmental Laws; and
(e) no Group Member has assumed or retained, by contract or operation of
law,any liability of any other Person under Environmental Laws or with respect
to any Material of Environmental Concern.
Section
5.18
A
ccuracy of Information, etc
. The statements and information contained inthis Agreement, the other Loan
Documents, and the other material documents, certificates and statements
furnished by or on behalf of any Credit Party to the Administrative Agent or
the Lenders, or any of them, in writing, for use in connection withthe
transactions contemplated by this Agreement or the other Loan Documents (as
modified or supplemented by other information so furnished), taken together as
a whole, did not contain as of the date such written statements, information,
documents orcertificates were so furnished, any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
contained herein or therein not misleading in any material respect. The
projections and any pro
73
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forma or other financial information contained in the materials referenced
above are based upon good faith estimates and assumptions believed by
management of the Borrower to be reasonable at thetime made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from
theprojected results set forth therein by a material amount.
Section
5.19
Security Documents
. TheGuarantee and Collateral Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral described therein and
proceeds thereof. In thecase of the Pledged Collateral required to be
delivered in the Guarantee and Collateral Agreement, when such Pledged
Collateral is delivered (in accordance with the Intercreditor Agreement) to
the Administrative Agent or the ABL Agent (together witha properly completed
and signed undated endorsement), in the case of Collateral consisting of
Deposit Accounts or Securities Accounts, when such Deposit Accounts or
Securities Accounts, as applicable, are subject to an Account Control
Agreement (asdefined in the Guarantee and Collateral Agreement) and in the
case of the other Collateral described in the Guarantee and Collateral
Agreement that can be perfected by the filing of a financing statement or
other filing, when financing statementsand other filings specified on
Schedule 5.19
in appropriate form are filed in the offices specified on
Schedule 5.19
, the Guarantee and Collateral Agreement shall constitute a fully perfected
Lien on, and security interest in, allright, title and interest of the Credit
Parties in such Collateral and the proceeds thereof, as security for the
Obligations (as defined in the Guarantee and Collateral Agreement), in each
case prior and superior in right to the Lien of any otherPerson (except Liens
expressly permitted by this Agreement or the Intercreditor Agreement, in each
case, to be prior to the Liens on the Collateral).
Section
5.20
S
olvency
. As of the Closing Date and after giving effect to theTransactions, the
Borrower and its Subsidiaries, on a consolidated basis, are Solvent.
Section
5.21
Anti-Corruption Laws; Anti-Money Laundering and Sanctions
. The Borrower has implemented and maintains in effect policies and procedures
designed to ensure compliance in all material respects by the Borrower, its
Subsidiaries and theirrespective directors, officers, employees and agents
with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its
Subsidiaries and their respective officers and directors and to the knowledge
of the Borrower its employees and agents,are in compliance with Anti-Corruption
Laws and applicable Sanctions in all material respects. None of (a) the
Borrower, any Subsidiary, any of their respective directors or officers, or
(b) to the knowledge of the Borrower, any employeeor agent of the Borrower or
any Subsidiary that will act in any capacity in connection with or benefit
from the credit facilities established hereby, is a Sanctioned Person. No
Loan, use of proceeds or other transaction contemplated by thisAgreement will
violate any Anti-Corruption Law or applicable Sanctions.
Section
5.22
Plan Assets;Prohibited Transactions
. None of the Borrower or any of its Subsidiaries is an entity deemed to hold
"plan assets" (within the meaning of the Plan Asset Regulations), and neither
the execution, delivery nor performance of thetransactions contemplated under
this Agreement, including the making of any Loan hereunder, will give rise to a
non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of theCode.
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ARTICLE VI.
AFFIRMATIVE COVENANTS
Until all of the Obligations (other than contingent indemnification
obligations not then due) have been paid and satisfied in full in cash andthe
Aggregate Commitments terminated, each Credit Party will, and will cause each
of its Subsidiaries to:
Section
6.1
Financial Statements and Budgets
. Furnish to the Administrative Agent for delivery to eachLender:
(a)
Annual Financial Statements
. As soon as available, but in any event within 90 days after the end ofeach
Fiscal Year of the Borrower, a copy of the audited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of such year
and the related audited consolidated statements of income, stockholders'
equity andcash flows for such year, setting forth in each case in comparative
form the figures for the previous year, reported on without a "going concern"
or like qualification or exception, or qualification arising out of the scope
of the audit,by KPMG, LLP or other independent certified public accountants of
nationally recognized standing acceptable to the Administrative Agent.
(b)
Quarterly Financial Statements
. As soon as available, but in any event not later than 45 days after the end
of eachof the first three quarterly periods of each Fiscal Year of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements ofincome, stockholders' equity and cash
flows for such quarter and/or the portion of the Fiscal Year through the end
of such quarter, as required by applicable SEC rules, setting forth in each
case in comparative form the figures for thecorresponding period or periods of
the previous Fiscal Year (or, in the case of the balance sheet, as of the end
of the previous Fiscal Year), certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal
year-end
audit adjustments and the absence of footnotes).
(c)
Annual Budget
. Assoon as available, and in any event no later than 90 days after the end of
each Fiscal Year of the Borrower, a detailed consolidated budget for the
following Fiscal Year (including a projected consolidated balance sheet of the
Borrower and itsSubsidiaries as of the end of the following fiscal year, the
related consolidated statements of projected cash flow and projected income
and a description of the underlying assumptions applicable thereto
(collectively, the"
Budget
")), which Budget shall in each case be accompanied by a certificate of a
Responsible Officer stating that such Budget is based on reasonable estimates,
information and assumptions and that such Responsible Officer has noreason to
believe that such Budget is incorrect or misleading in any material respect.
All such financial statements shall be completeand correct in all material
respects and shall be prepared in reasonable detail and in accordance with
GAAP applied (except as approved by such accountants or officer, as the case
may be, and disclosed in reasonable detail therein) consistentlythroughout the
periods reflected therein and with prior periods.
Documents required to be delivered pursuant to
Section
6.1(a)
,
(b)
or
(c)
or
Section
6.2
may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date on which (i) such documentsare posted on the
Borrower's behalf on IntraLinks/IntraAgency or another relevant Internet or
intranet website, if any, to which each Lender and the Administrative Agent
have access (whether a commercial, third-party website or whethersponsored by
the Administrative Agent) or (ii) such documents are filed of record with the
SEC; provided that, upon written request by the Administrative Agent, the
Borrower shall deliver paper copies of such documents to the AdministrativeAgent
for further distribution to each Lender until a written request to cease
delivering paper copies is given by the Administrative Agent. The
Administrative Agent shall have no obligation to request the delivery of or to
maintain or deliver toLenders paper copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Borrower with any such request for delivery, and each Lender shall be solely
responsible for timely accessing posteddocuments or requesting delivery of
paper copies of such documents from the Administrative Agent and maintaining
its copies of such documents.
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The Borrower hereby acknowledges that the Administrative Agent and/or the
Arranger will makeavailable to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, "
Borrower Materials
") by posting the Borrower Materials on the Platform.
Section
6.2
Certificates; Other Reports
. Deliver to the Administrative Agent (which shall promptlymake such
information available to the Lenders in accordance with its customary
practice):
(a) concurrently with thedelivery of any financial statements pursuant to
Sections 6.1(a)
and
6.1(b)
, (i) an Officer's Compliance Certificate executed by the applicable
Responsible Officer, which Officer's Compliance Certificate shall(x) include a
statement that, to each such Responsible Officer's knowledge, each Credit
Party during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition contained in this Agreementand
the other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge
of any Default or Event of Default except as specified in such certificate,
(y) in thecase of quarterly or annual financial statements, set forth, in
reasonable detail, the calculation of the Consolidated Leverage Ratio and, for
periods during which each financial covenant set forth in
Section
7.17
isapplicable, the calculation of such financial covenant, in each case of this
clause (y)
for the Reference Period ending as of the last day of the Fiscal Year or
fiscal quarter for which financial statements are being delivered pursuantto
Section
6.1
and (ii) in the case of quarterly or annual financial statements, to the
extent not previously disclosed to the Administrative Agent, (x) a description
of any change in the jurisdiction oforganization of any Credit Party, (y) a
list of any material registered Intellectual Property acquired or created by
any Credit Party and (z) a description of any Person that has become a
Subsidiary, in each case since the date of the mostrecent report delivered
pursuant to this
clause (ii)
(or, in the case of the first such report so delivered, since the Closing Date);
(b) within 45 days after the end of each fiscal quarter of the Borrower (or 90
days, in the case of the fourth fiscal quarterof each fiscal year), a
narrative discussion and analysis of the financial condition and results of
operations of the Borrower and its Subsidiaries for such fiscal quarter and
for the period from the beginning of the then current fiscal year to theend of
such fiscal quarter, as compared to the comparable periods of the previous
year;
(c) promptly after the same aresent, copies of all financial statements and
reports that the Borrower sends to the holders of any class of its public debt
securities or public equity securities and, promptly after the same are filed,
copies of all financial statements and reportsthat the Borrower may make to,
or file with, the SEC;
(d) promptly following receipt thereof, copies of any documentsdescribed in
Section 101(k) or 101(l) of ERISA that any Group Member or any ERISA Affiliate
may request with respect to any Multiemployer Plan or any documents described
in Section 101(f) of ERISA that any Group Member or any ERISAAffiliate may
request with respect to any Pension Plan;
provided,
that if the relevant Group Members or ERISA Affiliates have not requested such
documents or notices from the administrator or sponsor of the applicable
Multiemployer Plans,then, upon reasonable request of the Administrative Agent,
such Group Member or the ERISA Affiliate shall promptly make a request for
such documents or notices from such administrator or sponsor and the Borrower
shall provide copies of suchdocuments and notices to the Administrative Agent
promptly after receipt thereof; and
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(e) promptly, such (x) additional financial and other information asthe
Administrative Agent may from time to time reasonably request and (y)
information and documentation reasonably requested by the Administrative Agent
or any Lender for purposes of compliance with applicable "know your customer"
andanti-money laundering rules and regulations, including the PATRIOT ACT.
Section
6.3
Payment ofObligations
. Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all its material obligations of
whatever nature (including Taxes), except where (a) the amount or
validitythereof is currently being contested in good faith by appropriate
proceedings and reserves to the extent required by GAAP with respect thereto
have been provided on the books of the relevant Group Member or (b) the
failure to make suchpayments, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Section
6.4
Maintenance of
Existence; Compliance
. (a) (i) Preserve, renew and keepin full force and effect its organizational
existence and (ii) take all reasonable action to maintain all rights,
privileges and franchises necessary in the normal conduct of its business,
except, in each case, as otherwise permitted by
Section
7.3
,
Section
7.4
and except, in the case of
clause (ii)
above, to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect;(b) comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect; and (c) maintain in effect andenforce policies and procedures
reasonably designed to ensure compliance in all material respects by the
Borrower, its Subsidiaries and their respective directors, officers, employees
and agents with Anti-Corruption Laws and applicable Sanctions.
Section
6.5
Maintenance of Property; Insurance
. (a) Maintain, with financially sound andreputable insurance companies,
insurance in such amounts and against such risks as are customarily maintained
by companies engaged in the same or similar businesses operating in the same
or similar locations (including hazard and businessinterruption insurance) and
(b) cause, in the case of each property or casualty insurance policy, as
requested by the Administrative Agent, to be endorsed to the benefit of the
Administrative Agent (including, without limitation, by naming theAdministrative
Agent as lender loss payee and/or additional insured). If the Borrower or any
other Credit Party shall fail to maintain insurance in accordance with this
Section
6.5
, or if the Borrower or any other CreditParty shall fail to so endorse and
deliver all policies or certificates with respect thereto, the Administrative
Agent shall have the right (but shall be under no obligation) to procure such
insurance and the Borrower agrees to reimburse theAdministrative Agent for all
reasonable costs and expenses of procuring such insurance.
Section
6.6
Inspection of Property; Books and Records; Discussions
. (a) Keep proper books of records and account in which full, true and correct
(in all material respects) entries in conformity with GAAP and all
Requirements of Law shall bemade of all dealings and transactions in relation
to its business and activities and (b) upon reasonable prior notice, permit
representatives of the Administrative Agent or any Lender to visit and inspect
any of its properties and examine andmake abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired and
to discuss the business, operations, properties and financial and other
condition of the Group Members with officers and employeesof the Group Members
and, accompanied by one or more officers or designees of the Borrower if
requested by the Borrower, with their independent certified public
accountants; provided that excluding any such visits and inspections during
thecontinuation of an Event of Default (x) only the Administrative Agent,
acting individually or on behalf of the Lenders may exercise rights under this
Section
6.6
and (y) the Administrative Agent shall not exerciserights under this
Section
6.6
more often than one time during any calendar year.
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Section
6.7
Notices
. Promptly give notice to theAdministrative Agent, on behalf of each Lender, of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
any Group Member or (ii) litigation,investigation or proceeding that may exist
at any time between any Group Member and any Governmental Authority, that in
either case, if not cured or if adversely determined, as the case may be,
could reasonably be expected to have a Material AdverseEffect;
(c) any litigation or proceeding affecting any Group Member which relates to
any Loan Document;
(d) (i) as soon as reasonably possible upon becoming aware of the occurrence
of or forthcoming occurrence of any material ERISAEvent, a written notice
specifying the nature thereof, what action the Borrower, any of the other
Group Members or any of their respective ERISA Affiliates has taken, is taking
or proposes to take with respect thereto and, when known, any actiontaken or
threatened by the IRS, the Department of Labor or the PBGC with respect
thereto; and (ii) with reasonable promptness, upon the Administrative Agent's
reasonable request, copies of (1) each Schedule SB (Actuarial Information)to
the annual report (Form 5500 Series) filed by the Borrower, any of the other
Group Members or any of their respective ERISA Affiliates with the IRS with
respect to each Pension Plan; (2) all notices received by the Borrower, any of
the otherGroup Members or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning a material ERISA Event; and (3) copies
of such other documents or governmental reports or filings relating to any
Plan or Pension Plan as theAdministrative Agent shall reasonably request; and
(e) any other development or event that has had or could reasonably beexpected
to have a Material Adverse Effect.
Each notice pursuant to this
Section
6.7
shall be accompanied by a statement of aResponsible Officer setting forth
details of the occurrence referred to therein and stating what action the
relevant Group Member proposes to take with respect thereto.
Section
6.8
Environmental Laws
. Comply with, and use reasonable efforts to ensure compliance by alltenants,
subtenants, contractors, subcontractors, and invitees, if any, with, all
applicable Environmental Laws, and obtain and comply with and maintain, and
use reasonable efforts to ensure that all tenants, subtenants, contractors,
subcontractors,and invitees, obtain and comply with and maintain, any and all
Environmental Permits. It being understood that any noncompliance with this
Section
6.8
shall be deemed not to constitute a breach of this covenant providedthat, such
noncompliance with Environmental Laws, individually or in the aggregate, could
not reasonably be expected to give rise to a Material Adverse Effect. Promptly
comply with all lawful orders and directives of all Governmental Authoritiesrega
rding Environmental Laws, other than such orders and directives as to which an
appeal has been timely and properly taken in good faith, and provided that the
pendency of any and all such appeals could not reasonably be expected to give
rise to aMaterial Adverse Effect.
Section
6.9
Additional Collateral, etc
.
(a) With respect to any property acquired after the Closing Date by any Credit
Party (other than (v) any real property,(w) any property described in
Sections 6.9(c)
or
(d)
below, (x) any property subject to a Lien expressly permitted by
Section
7.2(g)
, (y) while the ABL Facility is outstanding, any ABL PriorityCollateral as to
which the Administrative Agent determines, in its reasonable discretion and in
consultation with the Borrower, that the cost of obtaining a security interest
therein is excessive in relation to the value of the security to beafforded
thereby) and (z)
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any Excluded Property (as defined in the Guarantee and Collateral Agreement)
or other property (other than, while the ABL Facility is outstanding, ABL
Priority Collateral) as to which the ABLAgent determines, in its reasonable
discretion and in consultation with the Borrower, that the cost of obtaining a
security interest therein is excessive in relation to the value of the
security to be afforded thereby as to which the AdministrativeAgent, for the
benefit of the Secured Parties, does not have a perfected Lien, promptly (i)
execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement or such other documents as the
AdministrativeAgent deems necessary or reasonably advisable to grant to the
Administrative Agent, for the benefit of the Secured Parties, a security
interest in such property and (ii) take all actions necessary or reasonably
advisable to grant to theAdministrative Agent, for the benefit of the Secured
Parties, a perfected security interest in such property with the priority
required by the Intercreditor Agreement, including the filing of Uniform
Commercial Code financing statements in suchjurisdictions as may be required
by the Guarantee and Collateral Agreement or by law or as may be requested by
the Administrative Agent.
(b)
Additional Domestic Subsidiaries
. With respect to any new Domestic Subsidiary (other than any Excluded
Subsidiary)created or acquired after the Closing Date by any Credit Party
(which, for the purposes of this
Section
6.9(b)
, shall include any (1) existing Subsidiary that becomes a Domestic Subsidiary
that is not an ExcludedSubsidiary and (2) any existing Domestic Subsidiary
that ceases to be an Excluded Subsidiary) within 45 days after the creation or
acquisition of such new Domestic Subsidiary (or such later date as the
Administrative Agent shall agree to in itssole discretion) (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent deems necessary or reasonably
advisable to grant to the Administrative Agent, for thebenefit of the Secured
Parties, a perfected security interest with the priority required by the
Intercreditor Agreement in the Capital Stock of such new Subsidiary that is
owned by any Credit Party, (ii) subject to the Intercreditor Agreement,deliver
to the Administrative Agent the certificates (if any) representing such
Capital Stock, together with undated stock powers, in blank, executed and
delivered by a duly authorized officer of the relevant Credit Party, (iii)
cause such newSubsidiary (A) to become a party to the Guarantee and Collateral
Agreement, (B) to take such actions necessary or reasonably advisable to grant
to the Administrative Agent for the benefit of the Secured Parties a perfected
securityinterest with the priority required by the Intercreditor Agreement in
the Collateral described in the Guarantee and Collateral Agreement with
respect to such new Subsidiary, including the filing of Uniform Commercial
Code financing statements insuch jurisdictions as may be required by the
Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent and (C) subject to the Intercreditor Agreement, to
deliver to the Administrative Agent a certificate ofsuch Subsidiary
substantially in the form of
Exhibit I
with appropriate insertions and attachments, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the mattersdescribed above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(c)
Additional Foreign Subsidiaries
. With respect to any new CFC Holding Company or Foreign Subsidiary created
oracquired after the Closing Date by any Credit Party (which, for the purposes
of this
Section
6.9(c)
, shall include any existing Subsidiary that becomes a CFC Holding Company or
a Foreign Subsidiary), within 60 days afterthe creation or acquisition of such
new CFC Holding Company or Foreign Subsidiary (or such later date as the
Administrative Agent shall agree to in its sole discretion) (i) execute and
deliver to the Administrative Agent such amendments to theGuarantee and
Collateral Agreement as the Administrative Agent deems necessary or reasonably
advisable to grant to the Administrative Agent, for the benefit of the Secured
Parties, a perfected security interest with the priority required by
theIntercreditor Agreement in the Capital Stock of such CFC Holding Company or
Foreign Subsidiary that is owned
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by any such Credit Party (provided that in no event shall more than 65% of the
total outstanding voting Capital Stock of any such CFC Holding Company or
Foreign Subsidiary be required to be sopledged), (ii) subject to the
Intercreditor Agreement, deliver to the Administrative Agent the certificates
representing such pledged Capital Stock, together with undated stock powers,
in blank, executed and delivered by a duly authorized officer ofthe relevant
Credit Party and take such other action as the Administrative Agent deems
necessary or reasonably advisable to perfect the Administrative Agent's
security interest therein.
(d) Notwithstanding anything to the contrary in this Agreement or any other
Loan Document, no Loan Document shall grant theSecured Parties a security
interest in any
fee-owned
or leased real property.
Section
6.10
Deposit Account Control Agreements
. With respect to any new Deposit Account that is notan Excluded Account
opened by a Credit Party after the Closing Date or any Excluded Account that
ceases to be an Excluded Account, within sixty (60) days of such event (or
such later date as agreed by the Administrative Agent in its solediscretion),
deliver to the Administrative Agent any Deposit Account control agreement
required to be delivered pursuant to the Guarantee and Collateral Agreement,
in each case, in form and substance reasonably satisfactory to the
AdministrativeAgent.
Section
6.11
Farm Credit Equity
.
So long as any Farm Credit Lender is a Lenderhereunder, each Borrower will (a)
maintain its status as an entity eligible to borrow from such Farm Credit
Lender and (b) acquire equity in such Farm Credit Lender in such amounts and
at such times as such Farm Credit Lender may requirein accordance with its
bylaws and capital plan, as applicable, (as each may be amended from time to
time), except that the maximum amount of equity that each Borrower may be
required to purchase in each Farm Credit Lender in connection with theLoans
made by such Farm Credit Lender may not exceed the maximum amount permitted by
such Farm Credit Lender's bylaws and the capital plan, as applicable, at the
time this Agreement is entered into. Each Borrower acknowledges receipt of a
copyof (i) each Farm Credit Lender's most recent annual report, and if more
recent, its latest quarterly report, (ii) each Farm Credit Lender's Notice to
Prospective Stockholders (or other applicable notice document) and(iii) each
Farm Credit Lender's bylaws and capital plan, as applicable (and, if
applicable, any related loan or membership application), which describe the
nature of all of each Borrower's stock and other equities in each Farm
CreditLender required in connection with its patronage loan from the Farm
Credit Lenders as well as capitalization requirements (the "
Farm Credit Equities
"), and agrees to be bound by the terms thereof.
Section
6.12
Post-Closing Matters
.
Execute and deliver the documents and complete the tasks setforth on
Schedule 6.12
, in each case within the time limits specified on such schedule.
ARTICLE VII.
NEGATIVE COVENANTS
Untilall of the Obligations (other than contingent, indemnification
obligations not then due) have been paid and satisfied in full in cash and the
Aggregate Commitments terminated, the Credit Parties will not, and will not
permit any of their respectiveSubsidiaries to, directly or indirectly:
Section
7.1
Indebtedness
. Create, issue, incur, assume,become liable in respect of or suffer to exist
any Indebtedness, except:
(a) Indebtedness in respect of the Obligations ofany Group Member under or
secured by this Agreement;
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(b) Indebtedness incurred under or secured by the ABL Facility, theprincipal
amount of loans and letters of credit thereunder (exclusive of any banking
services obligations secured thereby) shall not exceed an aggregate principal
amount of $375,000,000 at any time outstanding (and, with the consent of
theAdministrative Agent (not to be unreasonably withheld or delayed) any
Permitted Refinancing Indebtedness thereof;
provided
that any such Permitted Refinancing Indebtedness is subject to the
Intercreditor Agreement);
(c) Indebtedness of the Borrower or any Subsidiary owing to the Borrower or
any Subsidiary; provided that (x) anyIndebtedness of any Credit Party shall be
unsecured and shall be subordinated in right of payment to the Obligations on
terms customary for intercompany subordinated Indebtedness, as reasonably
determined by the Administrative Agent, (y) anysuch Indebtedness owing to any
Credit Party shall be evidenced by a promissory note which shall have been
pledged pursuant to the Guarantee and Collateral Agreement and (z) any such
Indebtedness owing by any Subsidiary that is not a CreditParty to any Credit
Party shall be incurred in compliance with
Section
7.6
;
(d) GuaranteeObligations incurred by any Group Member of obligations of any
Group Member to the extent such obligations are not prohibited hereunder;
provided that (i) to the extent any such obligations are subordinated to the
Obligations, any such relatedGuarantee Obligations incurred by a Credit Party
shall be subordinated to the guarantee of such Credit Party of the Obligations
on terms no less favorable to the Lenders than the subordination provisions of
the obligations to which such GuaranteeObligation relates and (ii) any
Guarantee Obligations incurred by any Credit Party of obligations of a
Subsidiary that is not a Credit Party shall be permitted to the extent
incurred in compliance with
Section
7.6
;
(e) Indebtedness outstanding on the Closing Date and listed on
Schedule 7.1
and any Permitted RefinancingIndebtedness in respect thereof;
(f) Indebtedness (including Capital Lease Obligations) and Attributable
Indebtedness(which Attributable Indebtedness arises out of a sale and
leaseback transaction permitted under
Section
7.10
) secured by Liens permitted by
Section
7.2(g)
in an aggregate principal amount not toexceed at any one time outstanding the
greater of (i) $75,000,000 and (ii) 5% of Consolidated Net Tangible Assets (as
of the date incurred);
(g) Indebtedness representing deferred compensation to employees or directors
of the Borrower and its Subsidiaries incurred inthe ordinary course of
business;
(h) Indebtedness incurred in the ordinary course of business or that is
consistent withpast practice and owed in respect of any netting services,
overdrafts and related liabilities arising from treasury, depository, credit
or debit card, purchase card or other cash management services or in
connection with any automated clearing-housetransfers of funds, in each case
that does not constitute Indebtedness for borrowed money;
(i) Indebtedness arising underany Swap Agreement permitted by
Section
7.10
;
(j) Indebtedness (other than Indebtedness forborrowed money) that may be
deemed to exist pursuant to any guarantees, warranty or contractual service
obligations, performance, surety, statutory, appeal, bid, prepayment
guarantee, payment (other than payment of Indebtedness) or completion
ofperformance guarantees or similar obligations incurred in the ordinary
course of business;
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(k) Indebtedness in respect of workers' compensation claims, paymentobligations
in connection with health, disability or other types of social security
benefits, unemployment or other insurance obligations, reclamation and
statutory obligations, in each case in the ordinary course of business;
(l) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrumentdrawn against insufficient
funds, so long as such Indebtedness is covered or extinguished within five
Business Days;
(m)Indebtedness consisting of (i) the financing of insurance premiums or
self-insurance obligations or
(ii) take-or-pay
obligations contained in supply or similaragreements in each case in the
ordinary course of business;
(n) Indebtedness in the form of purchase price adjustments(including in
respect of working capital), earnouts, deferred compensation, indemnification
or other arrangements representing acquisition consideration or deferred
payments of a similar nature incurred in connection with any Acquisitions or
otherInvestments permitted under
Section
7.6
or Dispositions permitted under
Section
7.4
(other than Dispositions permitted under
Section
7.4(m)
);
(o) Indebtedness of the Borrower in respect of the 2028 Notes in an aggregate
principal amount at any time outstanding not toexceed $275,000,000 and any
Permitted Refinancing Indebtedness in respect thereof;
(p) Indebtedness of the Borrower or anyof its Subsidiaries arising out of any
Permitted Supply Chain Financing;
(q) Indebtedness of the Borrower and itsSubsidiaries so long as (x) neither
the Acquisition Leverage Restricted Period nor a Restricted Period is
currently in place and (y) (A) the aggregate principal amount of such
Indebtedness does not exceed $30,000,000 (the"
Permitted Pari Passu Indebtedness
") or (B) such Indebtedness is Subordinated Indebtedness and, with respect to
any such Subordinated Indebtedness under this
clause (y)(B)
greater than or equal to $100,000,000, theBorrower has delivered to the
Administrative Agent evidence that, on a Pro Forma Basis after giving effect
to such Subordinated Indebtedness, the Consolidated Leverage Ratio shall be
less than or equal to 3.50 to 1.00 for the fiscal quarter duringwhich such
Subordinated Indebtedness is incurred and for the succeeding four fiscal
quarter period;
(r) GuaranteeObligations incurred by any Group Member of obligations of any
Joint Venture or Subsidiary that is not a Credit Party to the extent permitted
under
Section
7.6;
and
(s) Indebtedness arising under the membership agreement entered into by the
Borrower with any Farm Credit Lender in connectionwith the Borrower's
obligation to acquire equity in any such Farm Credit Lender pursuant to
Section
6.11
.
For purposes of determining compliance with this
Section
7.1
, in the event that an item of Indebtedness meets thecriteria of more than one
of the categories of Indebtedness described in
clauses (a)
through
(s)
above, other than Indebtedness described in
clause (q)
above, the Borrower may, in its sole discretion, divide orclassify or later
divide, classify or reclassify all or a portion of such item of Indebtedness
in a manner that complies with this
Section
7.1
and will only be required to include the amount and type of such Indebtedness(or
any portion thereof) in one or more of the above clauses; provided that all
Indebtedness outstanding under the Loan Documents and ABL Facility and, in
each case, any Permitted Refinancing Indebtedness in respect thereof, will at
all times bedeemed to be outstanding in reliance only on the exception in
Section
7.1(a)
and
Section
7.1(b)
, respectively.
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For the avoidance of doubt, a permitted refinancing in respect of Indebtedness
incurredpursuant to a Dollar-denominated or Consolidated Net Tangible
Assets-governed basket shall not increase capacity to incur Indebtedness under
such Dollar-denominated or Consolidated Net Tangible Assets-governed basket,
and such Dollar-denominated orConsolidated Net Tangible Assets-governed basket
shall be deemed to continue to be utilized by the amount of the original
Indebtedness incurred unless and until the Indebtedness incurred to effect
such permitted refinancing is no longer outstanding.
Section
7.2
Liens
. Create, incur, assume or suffer to exist, any Lien upon any of its
property,whether now owned or hereafter acquired, except:
(a) Liens for Taxes not yet due or that are being contested in good faithby
appropriate proceedings; provided that adequate reserves with respect thereto
are maintained on the books of the Borrower or its Subsidiaries, as the case
may be, to the extent required by GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other
like Liens arising inthe ordinary course of business that are not overdue for
a period of more than 60 days or that are being contested in good faith by
appropriate proceedings;
(c) pledges, deposits or similar Liens in connection with workers'
compensation, unemployment insurance and other socialsecurity legislation;
(d) (i) deposits to secure (x) the performance of bids, supplier and other
trade contracts(including government contracts) (other than for borrowed
money), leases, statutory obligations (other than for borrowed money and other
than any such obligation imposed pursuant to Section 430(k) of the Code or
Sections 303(k) or 4068 ofERISA) and (y) surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case (with respect to
clauses (x)
and
(y)
) incurred in the ordinary course of business and (ii) Liens on cashearnest
money deposits in connection with any letter of intent or purchase agreement
permitted under this Agreement;
(e)easements,
rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business that, in the aggregate, are not substantial in amountand that do not
in any case materially detract from the value of the property subject thereto
or materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the Closing Date listed on
Schedule 7.2
, securing Indebtedness permitted by
Section
7.1(e)
;
provided
that no such Lien is spread to cover any additional property after the Closing
Date and that the amount of Indebtedness secured thereby is not increased
(other than, in the case of PermittedRefinancing Indebtedness, by any
Additional Permitted Amount);
(g) Liens securing Indebtedness of any Group Memberincurred pursuant to
Section
7.1(f)
to finance the acquisition of fixed or capital assets or any sale and
leaseback transaction (and any Permitted Refinancing Indebtedness in respect
thereof); provided that (i) suchLiens shall be created within 180 days of the
acquisition of such fixed or capital assets, (ii) such Liens do not at any
time encumber any property other than the property financed by such
Indebtedness and the proceeds and products thereof and(iii) the amount of
Indebtedness secured thereby is not increased; provided further that in the
event that purchase money obligations are owed to any Person with respect to
financing of more than one purchase of any fixed or capital assets,such Liens
may secure all such purchase money obligations and may apply to all such fixed
or capital assets financed by such Person;
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(h) (i) Liens on the Collateral created pursuant to the Security Documents(or
any
Non-ABL
Security Documents (as defined in the Intercreditor Agreement)), (ii) Liens on
cash granted in favor of any Lenders created as a result of any requirement to
provide cash collateral pursuant tothis Agreement and (iii) Liens created by
the ABL Documents (as defined in the Intercreditor Agreement) or securing the
ABL Facility and any Permitted Refinancing Indebtedness in respect thereof,
provided that the Liens on the Collateralsecuring any such Indebtedness shall
be (a) with respect to the
Non-ABL
Priority Collateral, junior to the Liens on the Collateral securing the
Obligations and (b) subject to the IntercreditorAgreement;
(i) any interest or title of a licensor or lessor under any lease or license
entered into by any Group Memberin the ordinary course of its business and
covering only the assets so leased;
(j) Liens solely on any cash earnest moneydeposits made by the Borrower or any
Subsidiary in connection with any letter of intent or purchase agreement
relating to an Acquisition permitted hereunder;
(k) Liens in favor of any Credit Party so long as (in the case of any Lien
granted by a Credit Party) such Liens are junior tothe Liens created pursuant
to the Security Documents;
(l) Liens arising from filing Uniform Commercial Code or personalproperty
security financing statements (or substantially equivalent filings outside of
the United States) regarding leases;
(m) any option or other agreement to purchase any asset of any Group Member,
the purchase, sale or other disposition of whichis not prohibited by
Section
7.4
;
(n) Liens arising from the rendering of an interim or finaljudgment or order
against any Group Member that does not give rise to an Event of Default;
(o) Liens existing on any assetprior to the Acquisition thereof by the
Borrower or any Subsidiary or existing on any asset of any Person that becomes
a Subsidiary (or of any Person not previously a Subsidiary that is merged or
consolidated with or into a Subsidiary in atransaction permitted hereunder)
after the Closing Date prior to the time such Person becomes a Subsidiary (or
is so merged or consolidated) to the extent the Liens on such assets secure
Indebtedness permitted by
Section
7.1(c)
; provided that (i) such Liens are not created in contemplation of or in
connection with such Acquisition or such Person becoming a Subsidiary (or such
merger or consolidation) and (ii) such Liensattach at all times only to the
same assets or category of assets that such Liens (other than after acquired
property that is affixed or incorporated into the property covered by such
Lien) attached to, and secure only the same Indebtedness orobligations (or any
Permitted Refinancing Indebtedness in respect thereof permitted by
Section
7.1
) that such Liens secured, immediately prior to such Acquisition;
(p) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for sale of goods entered intoby the Borrower or any
other Subsidiary in the ordinary course of business and permitted by this
Agreement;
(q)
non-exclusive
licenses, sublicenses, leases and subleases of Intellectual Property of any
Group Member in the ordinary course of business;
84
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(r) Liens encumbering reasonable and customary initial deposits and
margindeposits and similar Liens attaching to brokerage accounts incurred in
the ordinary course of business and not for speculative purposes;
(s) Liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties inconnection with the importation of
goods in the ordinary course of business;
(t) Liens on premium refunds granted in favorof insurance companies (or their
financing affiliates) in connection with the financing of insurance premiums;
(u)banker's liens, rights of setoff or similar rights and remedies as to
deposit accounts or other funds maintained with depository institutions and
securities accounts and other financial assets maintained with a securities
intermediary; providedthat such deposit accounts or funds and securities
accounts or other financial assets are not established or deposited for the
purpose of providing collateral for any Indebtedness and are not subject to
restrictions on access by the Borrower or anySubsidiary in excess of those
required by applicable banking regulations;
(v) Liens (i) on cash advances in favor ofthe seller of any property to be
acquired in an Investment permitted pursuant to
Section
7.6
to be applied against the purchase price for such Investment or (ii)
consisting of an agreement to dispose of any property ina Disposition
permitted by
Section
7.4
, in each case, solely to the extent such Investment or Disposition, as the
case may be, would have been permitted on the date of the creation of such
Lien;
(w) Liens on any Receivables and Related Assets (i) granted to the provider of
any Permitted A/R Finance Transaction or(ii) that arise or may be deemed to
arise pursuant to any Permitted Supply Chain Financing;
(x) Liens not otherwisepermitted by this Section so long as neither (i) the
aggregate outstanding principal amount of the obligations secured thereby nor
(ii) the aggregate fair market value (determined as of the date such Lien is
incurred) of the assets subjectthereto exceeds (as to all Group Members) the
greater of (i) $100,000,000 or 7.5% of Consolidated Net Tangible Assets (as of
the date incurred);
(y) Liens on property purportedly rented to, or leased by, the Borrower or any
of its Subsidiaries pursuant to a sale andleaseback transaction permitted under
Section
7.9
; provided that (i) such Liens do not encumber any other property of the
Borrower or its Subsidiaries and (ii) such Liens secure only Indebtedness
permitted under
Section
7.1
;
(z) Liens on cash to secure commodity Swap Obligations in an amount not to
exceed$25,000,000 in the aggregate at any one time outstanding;
(aa) Liens on Farm Credit Equities as described in
Section
6.11
;
(bb) Liens arising in connection with any Tax Incentive Transaction;
provided
,
that
, such Liens are subordinated to the Liens of the Administrative Agent on the
Collateral securing the Obligations on terms reasonably acceptable to the
Administrative Agent; and
(cc) Liens securing any Permitted Pari Passu Indebtedness, which Liens may be
pari passu
with the Liens on theCollateral created pursuant to the Security Documents
pursuant to an intercreditor agreement reasonably acceptable to the
Administrative Agent.
85
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For purposes of determining compliance with this
Section
7.2
, in the event that aLien securing an item of Indebtedness (or any portion
thereof) meets the criteria for more than one of the categories of Liens
described in
clauses (a)
through
(aa)
above, the Borrower may, in its sole discretion, divide orclassify or later
divide, classify or reclassify all or a portion of such Lien in a manner that
complies with this
Section
7.2
and will only be required to include the amount and type of such Lien in one
or more of theabove clauses;
provided
that all Liens securing Indebtedness outstanding under the Loan Documents and
the ABL Credit Agreement, and, in each case, any Permitted Refinancing
Indebtedness thereof, will at all times be deemed to be outstandingin reliance
only on the exception in
Section
7.2(h)
.
Section
7.3
FundamentalChanges
. Enter into any merger, consolidation or amalgamation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or Dispose of
all or substantially all of its property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with or into
the Borrower (
provided
that the Borrowershall be the continuing or surviving corporation) or with or
into any other Subsidiary (
provided
, that when any Subsidiary of the Borrower is merging with or into another
Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuingor
surviving corporation or the continuing or surviving corporation shall,
substantially simultaneously with such merger or consolidation, become a
Subsidiary Guarantor);
(b) any Subsidiary may merge, consolidate or amalgamate with any other Person
(other than the Borrower) in order to effect anInvestment permitted pursuant to
Section
7.6
; provided that if such Subsidiary is a Subsidiary Guarantor the continuing or
surviving Person shall be a Subsidiary Guarantor;
(c) any Subsidiary of the Borrower may Dispose of any or all of its assets (i)
to the Borrower or any Subsidiary Guarantor(upon voluntary liquidation or
otherwise) or (ii) pursuant to a Disposition permitted by
Section
7.4
; and
(d) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may (i)
dispose of any or all or substantially allof its assets to any Group Member
(upon voluntary liquidation or otherwise) or (ii) liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in
the best interest of the Borrower and is notmaterially disadvantageous to the
Administrative Agent or the Lenders.
Section
7.4
Disposition ofProperty
.
Dispose of any of its property, whether now owned or hereafter acquired, or,
in the case of any Subsidiary, issue or sell any shares of such Subsidiary's
Capital Stock to any Person, except:
(a) the Disposition of surplus, outdated, obsolete or worn out, or no longer
used or useable property (other than accountsreceivable or inventory) in the
ordinary course of business;
(b) Dispositions of inventory, cash and Cash Equivalents inthe ordinary course
of business;
(c) Dispositions permitted by
Section
7.3(c)(i)
or
Section
7.3(d)(i)
;
(d) the sale or issuance of any Subsidiary's Capital Stock to theBorrower or
any Subsidiary Guarantor;
86
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(e) Dispositions of accounts receivable in connection with the compromise,settle
ment or collection thereof in the ordinary course of business consistent with
past practice and not as part of any accounts receivables financing
transaction;
(f) Dispositions of assets (including as a result of like-kind exchanges) to
the extent that (i) such assets are exchangedfor credit (on a fair market
value basis) against the purchase price of similar or replacement assets or
(ii) such asset is Disposed of for fair market value and the proceeds of such
Disposition are promptly applied to the purchase price ofsimilar or
replacement assets;
(g) Dispositions resulting from any casualty or other insured damage to, or
any takingunder power of eminent domain or by condemnation or similar
proceeding of, any asset of any Group Member;
(h)
non-exclusive
licenses or sublicenses of intellectual property in the ordinary course of
business, to the extent that they do not materially interfere with the
business of the Borrower or any Subsidiary;
(i) the lapse, abandonment, cancellation,
non-renewal
or discontinuance of use ormaintenance of
non-material
intellectual property or rights relating thereto that the Borrower determines
in its reasonable judgment to be desirable to the conduct of its business and
not materiallydisadvantageous to the interests of the Lenders;
(j) licenses, leases or subleases entered into in the ordinary course
ofbusiness, to the extent that they do not materially interfere with the
business of the Borrower or any Subsidiary;
(k)Dispositions to any Group Member; provided that any such Disposition
involving a Subsidiary that is not a Subsidiary Guarantor shall be made in
compliance with
Sections 7.7
and
7.9
;
(l) (i) Dispositions of assets to the extent that such Disposition constitutes
an Investment referred to in and permitted by
Section
7.6
, (ii) Dispositions of assets to the extent that such Disposition constitute a
Restricted Payment referred to in and permitted by
Section
7.5
, and (iii) sale and leasebacktransactions permitted under
Section
7.9
;
(m) Dispositions of Receivables and Related Assets inPermitted A/R Finance
Transactions; and
(n) other Dispositions of (i) assets (including Capital Stock) and/or(ii)
Inventory in connection with the sale of a plant facility permitted by this
Section
7.4
in an aggregate amount not to exceed $30,000,000; provided that (A) in each
case, such Disposition shall be for fairmarket value, (B) at least 75% of the
total consideration for any such Disposition in excess of the greater of (x)
$30,000,000 and (y) 2.5% of Consolidated Net Tangible Assets received by the
Borrower and its Subsidiaries shall be in the formof cash or Cash Equivalents
and Designated
Non-Cash
Consideration, (C) no Event of Default then exists or would result from such
Disposition (except if such Disposition is made pursuant to an agreemententered
into at a time when no Event of Default exists), and (D) the requirements of
Section
2.11(b)
, to the extent applicable, are complied with in connection therewith;
provided, however, that for purposes of
clause (B)
above, the following shall be deemed to be cash: (I) any liabilities (other
than liabilities that are by their terms subordinated to the Obligations) of
the Borrower or any Subsidiary (as shown on such Person's mostrecent balance
sheet (or in the notes thereto), or if the incurrence of such liability took
place
87
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after the date of such balance sheet, that would have been shown on such
balance sheet or in the notes thereto, as determined in good faith by the
Borrower) that are (i) assumed by thetransferee of any such assets and for
which the Borrower and/or its Subsidiaries have been validly released by all
relevant creditors in writing or (ii) otherwise cancelled or terminated in
connection with such Disposition, (II) anysecurities received by the Borrower
or such Subsidiary from such transferee that are converted by the Borrower or
such Subsidiary into cash or Cash Equivalents (to the extent of the cash or
Cash Equivalents received in the conversion) within 180days following the
closing of the applicable Disposition and (III) any Designated
Non-Cash
Consideration received by the Borrower or any of its Subsidiaries in such
Disposition having an aggregate fairmarket value, taken together with all
other Designated
Non-Cash
Consideration received pursuant to this
Section
7.4(n)
that is at that time outstanding, not to exceed the greater of(1) $60,000,000
and (2) 4% of Consolidated Net Tangible Assets (as of the date of such
disposition (or, at the Borrower's election, as of the date of entry into a
binding agreement with respect to such Disposition)) (with the fair market
valueof each item of Designated
Non-Cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value); and
(o) other Dispositions of operating segments, business units, divisions, lines
of business, or the assets or Capital Stock ofany Subsidiary of the Borrower
which individually may comprise an operating segment, business unit, division
or line of business, division, and with respect to which the Board of
Directors of the Borrower has determined are no longer strategic orcore to the
Borrower's business (taken as a whole), in an aggregate sales price for each
such Disposition or related series of Dispositions not to exceed $75,000,000
(exclusive of any earnout consideration payable in connection therewith);provide
d that no more than two (2) such Dispositions or series of related
Dispositions may be consummated prior to the Maturity Date;
(p) the surrender or waiver of contract rights in the ordinary course of
business or the surrender or waiver of litigationclaims or the settlement,
release or surrender of tort or litigation claims of any kind;
(q) the transfer of improvementsor alterations in connection with any lease of
property upon the termination thereof;
(r) any Restricted Payment permittedby
Section
7.5
or Investment permitted by
Section
7.6
;
(s) thetermination of a lease of real or personal property; and
(t) Dispositions arising in connection with any Tax IncentiveTransaction.
Section
7.5
Restricted Payments
. Declare or pay any dividend (other than dividendspayable solely in common
stock of the Person making such dividend) on, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of,
anyCapital Stock of any Group Member, whether now or hereafter outstanding, or
make any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of any Group Member
(collectively,"
Restricted Payments
"), except that:
(a) any Subsidiary may make Restricted Payments ratably to itsequity holders
(or if not ratably, on a basis more favorable to the Borrower and the other
Credit Parties);
88
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(b) so long as no Event of Default shall have occurred and be continuing,the
Borrower may purchase its common stock or common stock options from present or
former officers or employees of any Group Member upon the death, disability or
termination of employment of such officer or employee, provided, that the
aggregateamount of payments under this
Section
7.5(b)
after the Closing Date (net of any proceeds received by the Borrower after the
Closing Date in connection with resales of any common stock or common stock
options so purchased)shall not exceed $5,000,000;
(c) the Borrower may declare and pay dividends with respect to its Capital
Stock payablesolely in shares of Qualified Capital Stock;
(d) the Borrower may make cash payments in lieu of the issuance of
fractionalshares representing insignificant interests in the Borrower in
connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Capital Stock in the Borrower;
(e) the Borrower may acquire its Capital Stock upon the exercise of stock
options for such Capital Stock of the Borrower ifsuch Capital Stock represents
a portion of the exercise price of such stock options or in connection with
tax withholding obligations arising in connection with the exercise of options
by, or the vesting of restricted Capital Stock or similar equityawards held
by, any current or former director, officer or employee of any Group Member;
(f) the Borrower may convert orexchange any of its Capital Stock for or into
Qualified Capital Stock;
(g) the Borrower may declare and pay dividends andmake other Restricted
Payments related to offsetting the dilution of share issuances related to
employee programs; and
(h)make any other Restricted Payments so long as neither the Acquisition
Leverage Restricted Period nor a Restricted Period is in place;
provided
,
that
, if the Acquisition Leverage Restricted Period is not in place but a
Restricted Periodis in place, then no more than $15,000,000 of Restricted
Payments may be made in any Fiscal Year (it being understood and agreed that
it shall not constitute a breach of this
Section
7.5(h)
if, prior to a Restricted Periodbeing in place during any Fiscal Year, the
Borrower shall have made more than $15,000,000 of Restricted Payments).
Section
7.6
Investments
. Make any advance, loan, extension of credit (by way of guaranty or
otherwise)or capital contribution to, or purchase any Capital Stock, bonds,
notes, debentures or other debt securities of, or any assets constituting a
business unit of, or make any other investment in, any other Person (all of
the foregoing,"
Investments
") or (solely for purposes of
Section
7.6(r)
Capital Expenditure (other than
non-financed
Capital Expenditures), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in cash and Cash Equivalents;
(c) Guarantee Obligations of any Group Member in respect of Indebtedness or
other obligations not prohibited by this Agreement;
(d) loans and advances to directors, officers and employees of any Group
Member in the ordinary course of business(including for travel, entertainment
and relocation expenses) in an aggregate amount for the Borrower and its
Subsidiaries not to exceed $5,000,000 at any one time outstanding;
89
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(e) Investments made by any Group Member to another Group Member;
provided
that Investments by any Credit Party in a Subsidiary that is not a Credit
Party shall not exceed $10,000,000 at any one time outstanding;
(f) promissory notes and other
non-cash
consideration received in connection withDispositions permitted by
Section
7.4
;
(g) Investments acquired as a result of the purchase orother acquisition by
any Group Member in connection with an Acquisition otherwise permitted
pursuant to this
Section
7.6
; provided, that such Investments were not made in contemplation of such
Acquisition and were inexistence at the time of such Acquisition;
(h) Investments existing on the Closing Date and set forth on
Schedule7.6
and any modification, refinancing, renewal, refunding, replacement or
extension thereof; provided that the amount of any Investment permitted
pursuant to this
Section
7.6(h
) is not increased from the amount of suchInvestment on the Closing Date;
(i) Investments received in connection with the bankruptcy or reorganization
of, orsettlement of delinquent accounts and disputes with, customers and
suppliers, in each case in the ordinary course of business;
(j) Investments of a Subsidiary acquired after the Closing Date or of a
corporation merged into the Borrower or merged orconsolidated with any
Subsidiary, in each case in accordance with
Section
7.3
after the Closing Date, to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger orconsolidation
and were in existence on the date of such acquisition, merger or consolidation;
(k) guarantees by theBorrower or any Subsidiary of leases (other than Capital
Lease Obligations) or of other obligations that do not constitute
Indebtedness, in each case entered into in the ordinary course of business;
(l) Investments made to effect the pledges and deposits described in, and
permitted under,
Section
7.2
;
(m) Investments by the Borrower or any Subsidiary that result solely from
thereceipt by the Borrower or such Subsidiary from any of its Subsidiaries of
a dividend or other Restricted Payment in the form of Capital Stock, evidences
of Indebtedness or other securities (but not any additions thereto made after
the date of thereceipt thereto);
(n) mergers and consolidations permitted under
Section
7.3
that do not involveany Person other than the Borrower and Subsidiaries that
are Wholly-Owned Subsidiaries;
(o) Investments constituting theextension of credit made to any purchaser of
Receivables and Related Assets in connection with any Permitted A/R Finance
Transaction relating to the balance of the purchase price payable therefor by
such purchaser;
(p) Investments by the Borrower in Farm Credit Lenders in connection with the
Borrower's obligation to acquire Farm CreditEquities pursuant to
Section
6.11
; and
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(q) other Investments (including Acquisitions) and Capital Expenditures;
provided
,
that
, (i) if and for so long as the Acquisition Leverage Restricted Period is in
place, the Borrower and its Subsidiaries shall not make additional Investments
or Capital Expenditures (other than
non-financed
Capital Expenditures) in an aggregate amount for such Capital Expenditures in
excess of $180,000,000 during any Fiscal Year and (ii) if and for so long as a
Restricted Period is in place, theBorrower and its Subsidiaries shall not make
additional Investments or Capital Expenditures (other than
non-financed
Capital Expenditures) if the aggregate amount of all such Investments and such
CapitalExpenditures made prior to such Restricted Period going into effect
plus the aggregate amount of such additional Investments and such additional
Capital Expenditures made after such Restricted Period goes into effect would
exceed $185,000,000 in theaggregate in any Fiscal Year in which such
Restricted Period is in effect.
For the avoidance of doubt, the Augusta Mill Acquisition ispermitted hereunder.
Section
7.7
Optional Payments of Certain Subordinated Debt Instruments
. Makeor offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of or otherwise optionally or voluntarily defease or
segregate funds with respect to any Indebtedness incurred pursuant to
Section
7.1(q)(y)(B)
except to the extent permitted by the applicable subordination agreement.
Section
7.8
Transactions with Affiliates
. Enter into any transaction, including any purchase, sale,lease or exchange
of property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than (x) transactions
between or among the Credit Parties and (y) transactions between oramong the
Borrower and its Subsidiaries consistent with past practices and made in the
ordinary course of business) unless such transaction is (a) otherwise
permitted under this Agreement and (b) upon fair and reasonable terms no
lessfavorable to the relevant Group Member than it would obtain in a
comparable arm's length transaction with a Person that is not an Affiliate as
determined in good faith by the board of directors of the Borrower; provided
that the foregoingrestriction in
clause (b)
shall not apply to (i) transactions permitted under
Section
7.5
; (ii) the payment of customary directors' fees and indemnification and
reimbursement of expenses to directors,officers or employees; (iii) any
issuance of securities or other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of, employment agreements, stock
options and stock ownership plans approved by theBorrower's Board of
Directors; (iv) employment, retention, severance and similar arrangements
(including equity or equity based incentive plans, stock ownership plans,
compensation or incentive plans and arrangements and employee benefitplans and
arrangements) and indemnification arrangements entered into in the ordinary
course of business between the Borrower or any Subsidiary and any employee,
officer or director thereof; (v) intercompany transactions undertaken in
goodfaith (as certified by a Responsible Officer) for the purpose of improving
the consolidated tax efficiency of the Group Members; (vi) Investments
permitted by
Section
7.6(d)
; (vii) payment of customary fees andreasonable out of pocket costs to, and
indemnities for the benefit of, directors, officers and employees of the
Borrower and its Subsidiaries in the ordinary course of business to the extent
attributable to the ownership or operation of the Borrowerand its
Subsidiaries; and (viii) transactions disclosed in the Borrower's SEC filings
made prior to the Closing Date.
Section
7.9
Sales and Leasebacks
. Except in connection with any Tax Incentive Transaction, enter intoany
arrangement with any Person providing for the leasing by any Group Member of
real or personal property that has been or is to be sold or transferred by
such Group Member to such Person or to any other Person to whom funds have
been or are to beadvanced by such Person on the security of such property or
rental obligations of such Group Member, unless (a) the Disposition of the
property subject to such transaction is permitted by
Section
7.4
and the Borroweror the applicable Subsidiary would be entitled to incur Liens
with respect to such transaction pursuant to
Section
7.2
and Indebtedness in an amount equal to the Attributable Indebtedness with
respect to such transactionpursuant to
Section
7.1
and (b) the Net Cash Proceeds received by the applicable Group Member in
connection with such transaction are at least equal to the fair market value
(as determined by the board of directors ofthe Borrower or a member of the
senior management of the Borrower) of such property; provided that the
aggregate amount of consideration paid to the Group Members (and the aggregate
principal amount of any Attributable Indebtedness) in respect oftransactions
permitted under this
Section
7.9
shall not exceed the greater of (i)$75,000,000 and (ii) 5% of Consolidated Net
Tangible Assets (as of the date of consummation of such arrangement).
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Section
7.10
Swap Agreements
. Enter into any SwapAgreement, except (a) Swap Agreements entered into to
hedge or mitigate risks to which any Group Member has actual exposure (other
than those in respect of Capital Stock), (b) Swap Agreements entered into in
order to effectively cap, collar orexchange interest rates (from fixed to
floating rates, from one floating rate to another floating rate or otherwise)
with respect to any interest-bearing liability or investment of any Group
Member and (c) Swap Agreements in existence as of theClosing Date and
reflected in the Borrower's filings with the SEC.
Section
7.11
Changes in FiscalPeriods
. Change Borrower's fiscal year end or change the Borrower's method of
determining fiscal quarters (without the consent of the Administrative Agent)
except as permitted by GAAP and recommended by Borrower's auditors orrequired
by GAAP.
Section
7.12
Negative Pledge Clauses
. Enter into or suffer to exist or becomeeffective any agreement that
prohibits or limits the ability of any Group Member to create, incur, assume
or suffer to exist any Lien upon any of its property or revenues, whether now
owned or hereafter acquired to secure its obligations under theLoan Documents
to which it is a party other than (a) (i) this Agreement, the other Loan
Documents, the 2028 Notes and the ABL Facility, (ii) agreements related to
other Indebtedness permitted by this Agreement to the extent thatencumbrances
or restrictions imposed by such other Indebtedness are not more restrictive on
the Credit Party or any of its applicable Subsidiaries than the encumbrances
and restrictions contained in this Agreement as determined by the
chiefexecutive officer or the chief financial officer of the Borrower in good
faith and (iii) any agreement governing any Permitted Refinancing Indebtedness
in respect of the Loans, the 2028 Notes or the ABL Facility, in each case,
with respect tothis
clause (iii)
, so long as any such agreement is not more restrictive than the Loan
Documents, the Loan Documents (as defined in the ABL Facility) or the
documents governing the Indebtedness being refinanced, as applicable, (b)
anyagreements governing any purchase money Liens, Attributable Indebtedness or
Capital Lease Obligations otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed
thereby), (c) anyagreement in effect at the time any Subsidiary becomes a
Subsidiary of the Borrower, so long as such prohibition or limitation applies
only to such Subsidiary (and, if applicable, its Subsidiaries) and such
agreement was not entered into incontemplation of such Person becoming a
Subsidiary of the Borrower, as such agreement may be amended, restated,
supplemented, modified, extended, renewed or replaced, so long as such
amendment, restatement, supplement, modification, extension,renewal or
replacement does not expand in any material respect the scope of any
restriction contemplated by this
Section
7.12
contained therein, (d) customary provisions restricting assignments,
subletting,sublicensing, pledging or other transfers contained in leases,
subleases, licenses or sublicenses, so long as such restrictions are limited
to the property or assets subject to such leases, subleases, licenses or
sublicenses, as the case may be,(e) customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary or any assets
pending such sale; provided that such restrictions or conditions apply only to
the Subsidiary or assets that is to be sold andsuch sale is permitted
hereunder, (f) restrictions imposed by applicable law or regulation or license
requirements; (g) customary provisions restricting assignment of any
agreement, which provisions are entered into in the ordinary courseof
business; (h) any customary restriction pursuant to any document, agreement or
instrument governing or relating to any Lien permitted under
Section
7.2
and (i) customary provisions contained in joint ventureagreements, shareholder
agreements and other similar agreements applicable to joint ventures permitted
hereunder and applicable solely to such joint venture (and its assets or
Capital Stock issued by such Person) entered into in the ordinary courseof
business.
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Section 7.13
Lines of Business
. Enter into any business, either directlyor through any Subsidiary, except
for those businesses in which the Group Members were engaged on the Closing
Date or that are reasonably related, ancillary or complementary thereto.
Section
7.14
Use of Proceeds
. Request any Loan, and the Borrower shall not use, and shall procure thatits
Subsidiaries and its or their respective directors, officers, employees and
agents shall not use, the proceeds of any Loan, (a) in furtherance of an
offer, payment, promise to pay, or authorization of the payment or giving of
money, oranything else of value, to any Person in violation of any
Anti-Corruption Laws, (b) for the purpose of funding, financing or
facilitating any activities, business or transaction of or with any Sanctioned
Person, or in any Sanctioned Country, tothe extent that such activities,
businesses or transaction would be prohibited by Sanctions if conducted by a
corporation incorporated in the United States or a European Union member state
or (c) in any manner that would result in the violationof any Sanctions
applicable to any party hereto.
Section
7.15
Clauses Restricting SubsidiaryDistributions
.
Enter into or suffer to exist or become effective any consensual encumbrance
or restriction on the ability of any Subsidiary of the Borrower to (a) make
Restricted Payments in respect of any Capital Stock of suchSubsidiary held by,
or pay any Indebtedness owed to, any Group Member, (b) make loans or advances
to, or other Investments in, any Group Member or (c) transfer any of its
assets to any Group Member, except for (i) any encumbrances orrestrictions
existing under (A) this Agreement, the other Loan Documents, the 2028 Notes
and the Loan Documents (as defined in the ABL Facility), (B) any agreement
governing Indebtedness incurred pursuant to
Section
7.1
so long as such encumbrance or restriction is customary in agreements
governing Indebtedness of such type and is no more restrictive than the Loan
Documents or (C) any agreement governing PermittedRefinancing Indebtedness in
respect of the Loans, the ABL Facility or any other Indebtedness incurred
pursuant to
Section
7.1
, in each case so long as any such agreement is not more restrictive than the
Loan Documents, theLoan Documents (as defined in the ABL Facility) or the
documents governing the Indebtedness being refinanced, as applicable, (ii) any
encumbrances or restrictions with respect to a Subsidiary imposed pursuant to
an agreement that has beenentered into in connection with the Disposition of
all or substantially all of the Capital Stock or assets of such Subsidiary,
(iii) any encumbrance or restriction applicable to a Subsidiary (and, if
applicable, its Subsidiaries) under anyagreement of such Subsidiary in effect
at the time such Person becomes a Subsidiary of the Borrower, so long as such
agreement was not entered into in contemplation of such Person becoming a
Subsidiary of the Borrower, as such agreement may beamended, restated,
supplemented, modified extended renewed or replaced, so long as such
amendment, restatement, supplement, modification, extension, renewal or
replacement does not expand in any material respect the scope of any
restrictioncontemplated by this
Section
7.15
contained therein, (iv) customary provisions restricting assignments,
subletting, sublicensing, pledging or other transfers contained in leases,
subleases, licenses or sublicenses, solong as such restrictions are limited to
the property or assets subject to such leases, subleases, licenses or
sublicenses, as the case may be, (v) customary restrictions and conditions
contained in agreements relating to the sale of aSubsidiary or any assets
pending such sale, provided that such restrictions or conditions apply only to
the Subsidiary or assets that is to be sold and such sale is permitted
hereunder, (vi) restrictions of the nature referred to in
clause(c)
above under the agreements governing purchase money liens, Attributable
Indebtedness or Capital Lease Obligations otherwise permitted hereby, which
restrictions are only effective against the assets financed thereby, (vii)
anyapplicable law, rule or regulation (including applicable currency control
laws and applicable state corporate statutes restricting the payment of
dividends in certain circumstances), (viii) agreements related to other
Indebtedness permitted by thisAgreement to the extent that encumbrances or
restrictions imposed by such other Indebtedness (x) are (A) customary for
financing arrangements of their type or (B) not, when taken as a whole,
materially more restrictive on the Credit Partyor any of its applicable
Subsidiaries than the restrictions contained in this Agreement as determined
by the chief executive officer or the chief financial officer of the Borrower
in good faith and (y) will not materially affect the CreditParties' ability to
satisfy their obligations hereunder or under the other Loan Documents, or (ix)
customary provisions contained in joint venture agreements, shareholder
agreements and other similar agreements applicable to joint venturespermitted
hereunder and applicable solely to such joint venture (and its assets or
Capital Stock issued by such Person) entered into in the ordinary course of
business.
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Section
7.16
Organizational Documents
. Change itsname or jurisdiction of organization without providing written
notice to the Administrative Agent within 15 days after such change (or such
shorter period of time as agreed to by the Administrative Agent).
Section 7.17
Financial Covenants.
(a)
Consolidated Leverage Ratio
. During the Acquisition Leverage Restricted Period, permit the Consolidated
LeverageRatio as of the end of each fiscal quarter, for the then Applicable
Reference Period, to be greater than (x) commencing with the first fiscal
quarter ending at least fifteen (15) months after the Closing Date and until
the fiscal quarterending immediately prior to the first fiscal quarter ending
at least twenty-four (24) months after the Closing Date, 4.50 to 1.00 and (y)
commencing with the first fiscal quarter ending at least twenty-four (24)
months after theClosing Date and thereafter, 4.00 to 1.00.
(b)
Current Ratio
. During the Acquisition Leverage Restricted Period andcommencing with the
first fiscal quarter ending at least fifteen (15) months after the Closing
Date, permit the Current Ratio of the Borrower and its Subsidiaries as of the
end of each fiscal quarter to be less than 1.25 to 1.00.
(c)
Debt to Capitalization Ratio
. Solely with respect to the Commercial Bank Term Loan Facility and only until
such timeas the Commercial Bank Term Loan Facility is repaid in full (other
than contingent obligations for which no claim has been asserted), permit the
Debt to Capitalization Ratio as of the end of each fiscal quarter, for the
then Applicable ReferencePeriod, to be greater than (x) commencing with the
first fiscal quarter ending after the Closing Date and until the fiscal
quarter ending immediately prior to the first fiscal quarter ending at least
twenty-four (24) months after theClosing Date, 70%, (y) commencing with the
first fiscal quarter ending at least twenty-four (24) months after the Closing
Date and until the fiscal quarter ending immediately prior to the first fiscal
quarter ending at least forty-eight(48) months after the Closing Date, 65%,
and (z) commencing with the first fiscal quarter ending at least forty-eight
(48) months after the Closing Date and thereafter, 60%.
ARTICLE VIII.
DEFAULTAND REMEDIES
Section
8.1
Events of Default
. Each of the following shall constitute an Eventof Default:
(a) the Borrower shall fail to pay any principal of any Loan when due in
accordance with the terms hereof; orthe Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder or under any other
Loan Document, within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Credit Party
herein or in any other Loan Document or that iscontained in any certificate,
document or financial or other statement furnished by it at any time under or
in connection with this Agreement or any such other Loan Document shall prove
to have been inaccurate in any material respect on or as of thedate made or
deemed made; or
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(c) any Credit Party shall default in the observance or performance of
anyagreement contained in
clause (i)
or
(ii)
of
Section
6.4(a)
(with respect to the Borrower only),
Section
6.7(a)
or
Section
7
of this Agreement orSection 5.13 of the Guarantee and Collateral Agreement;
provided
,
that
, a default in the observance or performance of the covenant contained in
Section
7.17(c)
shall result in an Event of Default underthe Farm Credit Facilities; or
(d) [reserved]; or
(e) any Credit Party shall default in the observance or performance of any
other agreement contained in this Agreement or anyother Loan Document (other
than as provided in
clauses (a)
through
(c)
of this Section), and such default shall continue unremedied for a period of
30 days after notice to the Borrower from the Administrative Agent or the
RequiredLenders; or
(f) any Credit Party or any Subsidiary thereof shall (i) default in the
payment of any MaterialIndebtedness (including the ABL Facility) for borrowed
money (other than the Loans), beyond the period of grace if any, provided in
the instrument or agreement under which such Material Indebtedness for
borrowed money was created, or(ii) default in the observance or performance of
any other agreement or condition relating to any such Material Indebtedness
(including the ABL Facility) for borrowed money (other than the Loans)
contained in any instrument or agreementevidencing, securing or relating
thereto or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Material Indebtedness for borrowed money (ora trustee or agent
on behalf of such holder or holders) to cause, with the giving of notice
and/or lapse of time, if required, any such Material Indebtedness for borrowed
money to become due prior to its stated maturity (any applicable grace
periodhaving expired); or
(g) (i) any Group Member shall commence any case, proceeding or other action
(A) under anyexisting or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt orinsolvent, or seeking reorganization, arrangement,
adjustment,
winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver,trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets; or (ii) there shall be commenced against any Group Member
any case, proceeding or other action of a nature referred to in
clause (i)
above that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed or undischarged for a
period of 60 days; or (iii) there shall be commenced againstany Group Member
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any
such reliefthat shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) any Group Member
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescencein, any of the acts set forth in
clause (i)
,
(ii)
, or
(iii)
above; or (v) any Group Member shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due;
or(vi) or any Group Member shall make a general assignment for the benefit of
its creditors; or
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(h) (i) an ERISA Event and/or a Foreign Plan Event shall have occurred;(ii) a
trustee shall be appointed by a United States district court to administer any
Pension Plan; (iii) the PBGC shall institute proceedings to terminate any
Pension Plan; (iv) any Group Member or any of their respective ERISAAffiliates
shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred or will be assessed Withdrawal Liability to such Multiemployer Plan
and such entity does not have reasonable grounds for contesting such
WithdrawalLiability or is not contesting such Withdrawal Liability in a timely
and appropriate manner; or (v) any other event or condition shall occur or
exist with respect to a Plan, a Foreign Benefit Arrangement, or a Foreign
Plan; and in each case in
clauses (i)
through
(v)
above, such event or condition, together with all other such events or
conditions, if any, would reasonably be expected to result in a Material
Adverse Effect; or
(i) one or more judgments or decrees shall be entered against any Group Member
involving in the aggregate a liability (not paidor fully covered by insurance
as to which the relevant insurance company has not disputed coverage) of
$75,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, satisfied, stayed or bonded, as applicable,pending appeal
within 30 days from the entry thereof; or
(j) any of the Security Documents or the Intercreditor Agreementshall cease,
for any reason, to be in full force and effect (other than pursuant to the
terms hereof or the Intercreditor Agreement, respectively), or any Credit
Party or any Affiliate of any Credit Party shall so assert, or any Lien
created by anyof the Security Documents shall cease to be enforceable and of
the same effect and priority purported to be created thereby (and, for the
avoidance of doubt, as required by the Intercreditor Agreement), except to the
extent that such cessationresults from the failure of the Administrative Agent
to maintain possession of certificates representing securities pledged or to
file continuation statements under the Uniform Commercial Code of any
applicable jurisdiction; or
(k) the guarantee contained in Article II of the Guarantee and Collateral
Agreement shall cease, for any reason, to be in fullforce and effect or any
Credit Party shall so assert; or
(l) the subordination provisions contained in any SubordinatedIndebtedness
with an aggregate principal amount in excess of $30,000,000 shall cease, for
any reason, to be in full force and effect, or any Credit Party or any
Subsidiary of any Credit Party shall so assert; or
(m) a Change of Control shall occur.
Section
8.2
Remedies
. Upon the occurrence and during the continuance of an Event of Default, with
theconsent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower, take one or more of the following actions:
(a)
Acceleration; Termination of Credit Facilities
. Terminate the Aggregate Commitments and declare the principal of andinterest
on the Loans at the time outstanding, and all other amounts owed to the
Lenders and to the Administrative Agent under this Agreement or any of the
other Loan Documents and all other Obligations, to be forthwith due and
payable, whereuponthe same shall immediately become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by each Credit Party, anything in this Agreement or the other
Loan Documents to the contrarynotwithstanding, and terminate the Credit
Facilities and any right of the Borrower to request borrowings thereunder;
provided
that, upon the occurrence of an Event of Default specified in
Section
8.1(h)
or
(i)
, the Credit Facilities shall be automatically terminated and all Obligations
shall automatically become due and payable without presentment, demand,
protest or other notice of any kind, all of which are expressly waived by each
CreditParty, anything in this Agreement or in any other Loan Document to the
contrary notwithstanding.
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(b)
General Remedies
. Exercise on behalf of the Secured Parties allof its other rights and
remedies under this Agreement, the other Loan Documents and Applicable Law, in
order to satisfy all of the Obligations.
Section
8.3
Rights and Remedies Cumulative;
Non-Waiver;
etc
.
(a) The enumeration of the rights and remedies of the Administrative Agent and
the Lenders set forth in this Agreement isnot intended to be exhaustive and
the exercise by the Administrative Agent and the Lenders of any right or
remedy shall not preclude the exercise of any other rights or remedies, all of
which shall be cumulative, and shall be in addition to anyother right or
remedy given hereunder or under the other Loan Documents or that may now or
hereafter exist at law or in equity or by suit or otherwise. No delay or
failure to take action on the part of the Administrative Agent or any Lender
inexercising any right, power or privilege shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power orprivilege or shall be construed to be a waiver of any Event of
Default. No course of dealing between the Borrower, the Administrative Agent
and the Lenders or their respective agents or employees shall be effective to
change, modify or discharge anyprovision of this Agreement or any of the other
Loan Documents or to constitute a waiver of any Event of Default.
(b)Notwithstanding anything to the contrary contained herein or in any other
Loan Document, the authority to enforce rights and remedies hereunder and
under the other Loan Documents against the Credit Parties or any of them shall
be vested exclusivelyin, and all actions and proceedings at law in connection
with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with
Section
8.2
for the benefit of all the Lenders;
provided
that the foregoing shall not prohibit (i) the Administrative Agent from
exercising on its own behalf the rights and remedies that inure to its benefit
(solely in its capacity as Administrative Agent) hereunder and under theother
Loan Documents, (ii) any Lender from exercising setoff rights in accordance
with
Section
10.4
(subject to the terms of
Section
3.6
), or (iii) any Lender from filing proofs of claimor appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to
any Credit Party under any Debtor Relief Law; and
provided
,
further
, that if at any time there is no Person acting as AdministrativeAgent
hereunder and under the other Loan Documents, then (x) the Required Lenders
shall have the rights otherwise ascribed to the Administrative Agent pursuant
to
Section
8.2
and (y) in addition to the matters setforth in
clauses (ii)
and
(iii)
of the preceding proviso and subject to
Section
3.6
, any Lender may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and asauthorized by the Required Lenders.
Section
8.4
Crediting of Payments and Proceeds
. In the eventthat the Obligations have been terminated pursuant to
Section
8.2
or the Administrative Agent or any Lender has exercised any remedy set forth
in this Agreement or any other Loan Document, all payments received on
accountof the Obligations and all net proceeds from the enforcement of the
Obligations shall, subject to the Intercreditor Agreement, be applied by the
Administrative Agent as follows:
First
, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts, including attorneyfees, payable to
the Administrative Agent in its capacity as such;
Second
, to payment of that portion of the Obligationsconstituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders
under the Loan Documents, including attorney fees, ratably among the Lenders
in proportion to the respective amounts described in this clause
Second
payable to them;
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Third
, to payment of that portion of the Obligations constituting accrued and
unpaidinterest on the Loans, ratably among the Lenders in proportion to the
respective amounts described in this clause
Third
payable to them;
Last
, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrower or as otherwise requiredby Applicable Law.
Section
8.5
Administrative Agent May File Proofs of Claim
. In case of thependency of any proceeding under any Debtor Relief Law or any
other judicial proceeding relative to any Credit Party, the Administrative
Agent (irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or bydeclaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered (but not obligated) by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans andall other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim for the reasonable compensation, expenses,disbursemen
ts and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and the
Administrative Agent under
Sections 3.3
and
10.3
) allowed in such judicialproceeding; and
(b) to collect and receive any monies or other property payable or deliverable
on any such claims and todistribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceedingis hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the
event that the Administrative Agent shall consent to the making of such
payments directly to the Lenders to pay to the Administrative Agent any
amountdue for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other
amounts due the Administrative Agent under
Sections
3.3
and
10.3
.
Section
8.6
Credit Bidding
.
(a) The Administrative Agent, on behalf of itself and the Secured Parties,
shall have the right to credit bid and purchase forthe benefit of the
Administrative Agent and the Secured Parties all or any portion of Collateral
at any sale thereof conducted by the Administrative Agent under the provisions
of the UCC, including pursuant to Sections
9-610
or
9-620
of the UCC, at any sale thereof conducted under the provisions of the United
States Bankruptcy Code, including Section 363 thereof, or a sale under aplan
of reorganization, or at any other sale or foreclosure conducted by the
Administrative Agent (whether by judicial action or otherwise) in accordance
with Applicable Law. Such credit bid or purchase may be completed through one
or moreacquisition vehicles formed by the Administrative Agent to make such
credit bid or purchase and, in connection therewith, the Administrative Agent
is authorized, on behalf of itself and the other Secured Parties, to adopt
documents providing for thegovernance of the acquisition vehicle or vehicles,
and assign the applicable Obligations to any such acquisition vehicle in
exchange for Capital Stock and/or debt issued by the applicable acquisition
vehicle (which shall be deemed to be held for theratable account of the
applicable Secured Parties on the basis of the Obligations so assigned by each
Secured Party).
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Section
8.7
Lender Action
. Each Lender herebyagrees, on behalf of itself and each of its Affiliates
that is a Secured Party, that, except as otherwise provided in any Loan
Document or with the written consent of the Administrative Agent and the
Required Lenders, it will not take anyenforcement action, accelerate
obligations under any of the Loan Documents, or exercise any right that it
might otherwise have under Applicable Law to credit bid at foreclosure sales,
UCC sales or other similar dispositions of Collateral.
Section
8.8
Intercreditor Agreement
. Each of the Lenders from time to time party to this Agreementhereby confirms
and reaffirms the irrevocable authority of the Administrative Agent to
execute, deliver and act on its behalf in respect of the Intercreditor
Agreement, and each duly executed supplement, modification, amendment,
restatement orextension thereto. Each Lender agrees to be bound by the terms
and provisions of the Intercreditor Agreement.
With respect to any requirement herein or in any other Loan Document for any
Credit Party to deliver originals of certificatedCapital Stock, instruments,
or similar documents constituting ABL Priority Collateral, such requirements
shall be deemed satisfied to the extent the requirements to deliver the same
in accordance with the Intercreditor Agreement are in effect andare satisfied
by such Credit Party. Solely with respect to ABL Priority Collateral, to the
extent that any covenants, representations or warranties set forth in this
Agreement or any other Loan Document are untrue or incorrect solely as a
result ofthe delivery to or grant of possession or control to, the agent or
settlement trust, as applicable, under the ABL Facility in accordance with this
Section
8.8
, such representation or warranty shall not be deemed to beuntrue or incorrect
for purposes of this Agreement or such other Loan Document. Anything contained
in any of the Loan Documents to the contrary notwithstanding, the Borrower,
the Administrative Agent and each Lender hereby agree that no Lender shallhave
any right individually to enforce the Intercreditor Agreement, it being agreed
that all powers, rights and remedies under the Intercreditor Agreement may be
exercised solely by the Administrative Agent for the benefit of the Lenders
inaccordance with the terms thereof. THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS IS SUBJECT TO THE INTERCREDITOR AGREEMENT. IN THE EVENT OF ANY
CONFLICT BETWEEN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND THE
INTERCREDITOR AGREEMENT, THEINTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.
ARTICLE IX.
THE ADMINISTRATIVE AGENT
Section
9.1
Appointment and Authority
.
(a) Each of the Lenders hereby irrevocably appoints AgWest to act on its
behalf as the Administrative Agent hereunder and underthe other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as
arereasonably incidental thereto. Except for consent rights of the Borrower
set forth in
Section
9.6
and
9.9
, the provisions of this Article are solely for the benefit of the
Administrative Agent and the Lenders, andneither the Borrower nor any
Subsidiary thereof shall have rights as a third-party beneficiary of any of
such provisions. It is understood and agreed that the use of the term "agent"
herein or in any other Loan Documents (or any othersimilar term) with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
Applicable Law. Instead such term is used as a matter of market custom,and is
intended to create or reflect only an administrative relationship between
contracting parties.
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(b) The Administrative Agent shall also act as the "
collateralagent
" under the Loan Documents, and each of the Lenders irrevocably appoints and
authorizes the Administrative Agent to act as the agent of such Lender for
purposes of acquiring, holding and enforcing any and all Liens on
Collateralgranted by any of the Credit Parties to secure any of the
Obligations, together with such powers and discretion as are reasonably
incidental thereto (including to enter into additional Loan Documents or
supplements to existing Loan Documents onbehalf of the Secured Parties). The
Administrative Agent, as "collateral agent" and any
co-agents,
sub-agents
and
attorneys-in-fact
appointed by the Administrative Agent pursuant to this
Article IX
for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the SecurityDocuments, or for exercising any
rights and remedies thereunder at the direction of the Administrative Agent,
shall be entitled to the benefits of all provisions of
Articles IX
and
X
(including
Section
10.3
,as though such
co-agents,
sub-agents
and
attorneys-in-fact
were the "collateralagent" under the Loan Documents) as if set forth in full
herein with respect thereto.
Section
9.2
Rights as a Lender
. The Person serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agentand the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless
the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person andits
Affiliates may accept deposits from, lend money to, own securities of, act as
the financial advisor or in any other advisory capacity for and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereofas if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.
Section
9.3
Exculpatory Provisions
.
(a) The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the otherLoan Documents, and its
duties hereunder and thereunder shall be administrative in nature. Without
limiting the generality of the foregoing, the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default or Event of Default hasoccurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any
discretionarypowers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage ofthe Lenders as shall be expressly
provided for herein or in the other Loan Documents),
provided
that the Administrative Agent shall not be required to take any action that,
in its opinion or the opinion of its counsel, may expose theAdministrative
Agent to liability or that is contrary to any Loan Document or Applicable Law,
including for the avoidance of doubt any action that may be in violation of
the automatic stay under any Debtor Relief Law or that may effect a
forfeiture,modification or termination of property of a Defaulting Lender in
violation of any Debtor Relief Law; and
(iii) shall not,except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its
Subsidiaries or Affiliates that iscommunicated to or obtained by the Person
serving as the Administrative Agent or any of its Affiliates in any capacity.
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(b) The Administrative Agent shall not be liable for any action taken or
nottaken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or
as the Administrative Agent shall believe in good faith shall be necessary,
under thecircumstances as provided in
Section
10.2
and
Section
8.2
) or (ii) in the absence of its own bad faith, gross negligence or willful
misconduct as determined by a court of competentjurisdiction by final
nonappealable judgment. The Administrative Agent shall be deemed not to have
knowledge of any Default or Event of Default unless and until notice
describing such Default or Event of Default is given to the Administrative
Agentby the Borrower or a Lender.
(c) The Administrative Agent shall not be responsible for or have any duty to
ascertain orinquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or inconnection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default or Event of
Default, (iv) the validity,enforceability, effectiveness or genuineness of
this Agreement, any other Loan Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in
Article IV
or elsewhere herein, other than toconfirm receipt of items expressly required
to be delivered to the Administrative Agent.
(d) Neither the AdministrativeAgent nor any of its Related Parties shall be
responsible or have any liability for, or have any duty to ascertain, inquire
into, monitor or enforce, compliance with the provisions of this Agreement
relating to Disqualified Lenders. Without limitingthe generality of the
foregoing, the Administrative Agent shall not (i) be obligated to ascertain,
monitor or inquire as to whether any Lender or Participant or prospective
Lender or Participant is a Disqualified Lender or (ii) have anyliability with
respect to or arising out of any assignment or participation of Loans, or
disclosure of confidential information, to any Disqualified Lender.
Section
9.4
Reliance by the Administrative Agent
. The Administrative Agent shall be entitled to relyupon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution)believed
by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to have been
made by theproper Person, and shall not incur any liability for relying
thereon. In determining compliance with any condition hereunder to the making
of a Loan that by its terms must be fulfilled to the satisfaction of a Lender,
the Administrative Agent maypresume that such condition is satisfactory to
such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Loan. The Administrative
Agent may consult with legal counsel (who maybe counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.
Section
9.5
Delegation of Duties
. The Administrative Agent may perform any and all of its duties andexercise
its rights and powers hereunder or under any other Loan Document by or through
any one or more
sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such
sub-agent
and to the Related Parties of the Administrative Agent and any such
sub-agent,
and shall apply to their respective
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activities in connection with the syndication of the Credit Facilities as well
as activities as Administrative Agent. The Administrative Agent shall not be
responsible for the negligence ormisconduct of any
sub-agents
except to the extent that a court of competent jurisdiction determines in a
final and nonappealable judgment that the Administrative Agent acted with bad
faith, gross negligence orwillful misconduct in the selection of such
sub-agents.
Section
9.6
Resignation of Administrative Agent
.
(a) The Administrative Agent may at any time give notice of itsresignation to
the Lenders and the Borrower. Upon receipt of any such notice of resignation,
the Required Lenders shall have the right, in consultation with the Borrower
and subject to the consent of the Borrower (provided no Event of Default
hasoccurred and is continuing at the time of such resignation), to appoint a
successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such
successor shall havebeen so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation (or such earlier day as shall be agreed
by the Required Lenders) (the"
Resignation Effective Date
"), then the retiring Administrative Agent may (but shall not be obligated
to), on behalf of the Lenders, appoint a successor Administrative Agent
meeting the qualifications set forth above;
provided
that in no event shall any such successor Administrative Agent be a Defaulting
Lender. Whether or not a successor has been appointed, such resignation shall
become effective in accordance with such notice on the Resignation
EffectiveDate.
(b) If the Person serving as Administrative Agent is a Defaulting Lender
pursuant to
clause (d)
of thedefinition thereof, the Required Lenders may, to the extent permitted by
Applicable Law, by notice in writing to the Borrower and such Person, remove
such Person as Administrative Agent and, in consultation with the Borrower,
appoint a successor. Ifno such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days (or
such earlier day as shall be agreed by the Required Lenders) (the "
Removal Effective Date
"), thensuch removal shall nonetheless become effective in accordance with
such notice on the Removal Effective Date.
(c) Witheffect from the Resignation Effective Date or the Removal Effective
Date (as applicable), (i) the retiring or removed Administrative Agent shall
be discharged from its duties and obligations hereunder and under the other
Loan Documents (exceptthat in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders under any of the Loan Documents,
the retiring or removed Administrative Agent shall continue to hold such
collateral security until such time as asuccessor Administrative Agent is
appointed) and (ii) except for any indemnity payments owed to the retiring or
removed Administrative Agent, all payments, communications and determinations
provided to be made by, to or through theAdministrative Agent shall instead be
made by or to each Lender directly, until such time, if any, as the Required
Lenders appoint a successor Administrative Agent as provided for above. Upon
the acceptance of a successor's appointment asAdministrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring or removed Administrative Agent
(other than any rights to indemnity payments owed to the retiringor removed
Administrative Agent), and the retiring or removed Administrative Agent shall
be discharged from all of its duties and obligations hereunder or under the
other Loan Documents. The fees payable by the Borrower to a successor
AdministrativeAgent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
retiring or removed Administrative Agent's resignation or removal hereunder
and under the other LoanDocuments, the provisions of this Article and
Section
10.3
shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its
sub-agents
and theirrespective Related Parties in respect of any actions taken or omitted
to be taken by any of them while the retiring or removed Administrative Agent
was acting as Administrative Agent.
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Section
9.7
Non-Reliance
on Administrative Agent and Other Lenders
. Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of theirRelated
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon theAdministrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or basedupon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or
thereunder.
Section
9.8
No Other Duties, Etc
.
Anything herein to the contrary notwithstanding, none of thesyndication
agents, documentation agents,
co-agents,
arrangers or bookrunners listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other
LoanDocuments, except in its capacity, as applicable, as the Administrative
Agent or a Lender hereunder.
Section
9.9
Collateral and Guaranty Matters
.
(a) Each of the Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion:
(i) to release any Lien on any Collateral granted to or held by the
Administrative Agent, for the ratable benefit of theSecured Parties, under any
Loan Document (A) upon the termination of the Aggregate Commitments and
payment in full of all Obligations (other than contingent indemnification
obligations), (B) that is sold or otherwise disposed of or to be soldor
otherwise disposed of as part of or in connection with any sale or other
disposition permitted under the Loan Documents (which release may, at the
request of the Borrower, be in the form of an authorization by the
Administrative Agent to permit aCredit Party to dispose of such Collateral
free of the security interest granted to or held by the Administrative Agent
for purposes of UCC
9-315),
or (C) if approved, authorized or ratified in writing inaccordance with
Section
10.2
;
(ii) to subordinate any Lien on any Collateral granted to or heldby the
Administrative Agent under any Loan Document to the holder of any Lien
permitted pursuant to
Section
7.2
; and
(iii) to release (A) any Credit Party from its obligations under any Loan
Documents upon the termination of the AggregateCommitments and payment in full
of all Obligations (other than contingent indemnification obligations) or (B)
a Subsidiary Guarantor from its obligations under the Loan Documents if such
Person ceases to be a Subsidiary of the Borrower, as aresult of a transaction
permitted under the Loan Documents.
Upon request by the Administrative Agent or Borrower at any time, the Required
Lenders willconfirm in writing the Administrative Agent's authority to release
or subordinate its interest in particular types or items of property, or to
release any Subsidiary Guarantor from its obligations under the Guarantee and
Collateral Agreementpursuant to this
Section
9.9
. In each case as specified in this
Section
9.9
, the Administrative Agent will, at the Borrower's expense, execute and
deliver to the applicable Credit Party suchdocuments
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as such Credit Party may reasonably request to evidence the release of such
item of Collateral from the assignment and security interest granted under the
Security Documents or to subordinate itsinterest in such item, or to release
such Subsidiary Guarantor from its obligations under the Guarantee and
Collateral Agreement, in each case in accordance with the terms of the Loan
Documents and this
Section
9.9
. In thecase of any such sale, transfer or disposal of any property
constituting Collateral in a transaction constituting a Disposition permitted
pursuant to
Section
7.4
, the Liens created by any of the Security Documents on suchproperty shall be
automatically released without need for further action by any person.
(b) The Administrative Agent shallnot be responsible for or have a duty to
ascertain or inquire into any representation or warranty regarding the
existence, value or collectability of the Collateral, the existence, priority
or perfection of the Administrative Agent's Lienthereon, or any certificate
prepared by any Credit Party in connection therewith, nor shall the
Administrative Agent be responsible or liable to the Lenders for any failure
to monitor or maintain any portion of the Collateral.
Section
9.10
Recovery of Erroneous Payments
. Unless the Administrative Agent shall have receivednotice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for
the account of the Lenders hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has madesuch
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the applicable Lenders the amount due. With respect
to any payment that the Administrative Agent makes for the account of the
Lenders hereunderas to which the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that any of the
following applies (such payment referred to as the "
Rescindable Amount
"): (1) the Borrower has not infact made such payment, (2) the Administrative
Agent has made a payment in excess of the amount so paid by the Borrower
(whether or not then owed), or (3) the Administrative Agent has for any reason
otherwise erroneously made such payment,then each of the applicable Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the
Rescindable Amount so distributed to such Lender, in immediately available
funds with interest thereon, for each day from and includingthe date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules oninterbank compensation. A notice of the Administrative Agent to any
Lender or the Borrower with respect to any amount owing under this
Section
9.10
shall be conclusive, absent manifest error. The Borrower and each
Lenderirrevocably waives any and all defenses, including any "discharge for
value" (under which a creditor might otherwise claim a right to retain funds
mistakenly paid by a third party in respect of a debt owed by another) or
similar defense toits obligation to return any Rescindable Amount.
ARTICLE X.
MISCELLANEOUS
Section
10.1
Notices
.
(a)
Notices Generally
. Except as provided in
Section
10.1(b)
below, all notices and othercommunications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by facsimile as follows:
If to the Borrower:
Clearwater Paper Corporation
601 West Riverside, Suite 1100
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Spokane, WA 99201
Attention of: Heidi Blair, VP, Treasurer
Facsimile No.:
509-444-9793
E-mail:
heidi.blair@clearwaterpaper.com
With copies to:
Pillsbury Winthrop Shaw Pittman LLP
4 Embarcadero Center
San Francisco, CA 94111
Attention of: Philip J. Tendler, Esq.
Facsimile No.:
415-983-1200
E-mail:
philip.tendler@pillsburylaw.com
If to AgWest, as
Administrative
Agent:
AgWest Farm Credit, PCA
2001 S. Flint Road
PO Box 2515
Spokane, WA 99220-2515
Attention of: Ryan Stipe
Telephone No.: (206)
691-2016
Facsimile No.: (509)
340-5625
E-mail:
ryan.stipe@agwestfc.com
With copies to:
AgWest Farm Credit, PCA
2001 S. Flint Road
PO Box 2515
Spokane, WA 99220-2515
Attention of: Capital Markets
Telephone No.: (800)
255-1789
Facsimile No.: (509)
340-5300
E-mail:
nwfcsallcapitalmarkets@northwestfcs.com
If to any Lender:
To the address set forth on the Register
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices
sentby facsimile shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to
have been given at the opening of business on the next Business Day for the
recipient). Noticesdelivered through electronic communications to the extent
provided in
Section
10.1(b)
below, shall be effective as provided in said
Section
10.1(b)
.
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(b)
Electronic Communications
. Notices and other communications tothe Administrative Agent and the Lenders
hereunder may be delivered or furnished by electronic communication (including
e-mail,
FPML messaging and Internet or intranet websites) pursuant to procedures
approvedby the Administrative Agent;
provided
that the foregoing shall not apply to notices to any Lender pursuant to
Article II
if such Lender has notified the Administrative Agent that it is incapable of
receiving notices under such Articleby electronic communication. The
Administrative Agent or the Borrower may each, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it;
provided
that approval of such procedures may be limited to particular notices or
communications.
Unless the Administrative Agentotherwise prescribes, (i) notices and other
communications sent to an
e-mail
address shall be deemed received upon the sender's receipt of an acknowledgment
from the intended recipient (such as bythe "return receipt requested" function
(provided however that with respect to notices to any Credit Party, any
acknowledgement automatically generated by any party's
e-mail
system shall not bedeemed a notice of receipt), return
e-mail
or other written acknowledgement) and (ii) notices and other communications
posted to an Internet or intranet website shall be deemed received by the
intendedrecipient upon the sender's receipt of an acknowledgement from the
intended recipient (such as by the "return receipt requested" function, as
available, return
e-mail
address or other writtenacknowledgement) indicating that such notice or
communication is available and identifying the website address therefor;
provided
that for both
clauses (i)
and
(ii)
, if such notice or other communication is not sent duringthe normal business
hours of the recipient, such notice, email or communication shall be deemed to
have been sent at the opening of business on the next Business Day for the
recipient.
(c)
Administrative Agent's Office
. The Administrative Agent hereby designates its office located at the address
setforth above, or any subsequent office which shall have been specified for
such purpose by written notice to the Borrower and Lenders, as the
Administrative Agent's Office referred to herein, to which payments due are to
be made and at whichLoans will be disbursed.
(d)
Change of Address, Etc.
Any party hereto may change its address or facsimile numberfor notices and
other communications hereunder by notice to the other parties hereto.
(e)
Platform
. THE PLATFORM ISPROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY
FOR ERRORS IN OROMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT
OF THIRD PARTYRIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In
no event shall the Administrative Agent or any of its Related Parties
(collectively, the "
AgentParties
") have any liability to the Borrower, any Lender or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of the Borrower's, any CreditParty's or the
Administrative Agent's transmission of Borrower Materials or notices through
the Platform, any other electronic platform or electronic messaging service,
or through the Internet, except to the extent that such losses,claims,
damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the
bad faith, gross negligence or willful misconduct of such Agent Party.
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(f)
Reliance by Administrative Agent and Lenders
. The AdministrativeAgent and the Lenders shall be entitled to rely and act
upon any notices purportedly given by the proper Person or Persons by or on
behalf of any Credit Party even if (i) such notices were not made in a manner
specified herein, were incompleteor were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Credit Parties shall
indemnify the Administrative Agent, eachLender and the Related Parties of each
of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of a
Credit Party (other than losses, costs, expenses andliabilities resulting from
the bad faith, gross negligence or willful misconduct of any such Person or
such Person's Related Parties). All telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, andeach of
the parties hereto hereby consents to such recording.
Section
10.2
Amendments, Waivers andConsents
. Except as set forth below or as specifically provided in any Loan Document,
any term, covenant, agreement or condition of this Agreement or any of the
other Loan Documents may be amended or waived by the Lenders, and any
consentgiven by the Lenders, if, but only if, such amendment, waiver or
consent is in writing signed by the Required Lenders (or by the Administrative
Agent with the consent of the Required Lenders) and delivered to the
Administrative Agent and, in thecase of an amendment, signed by the Borrower;
provided
that no amendment, waiver or consent shall:
(a) without theprior written consent of the Required Term Revolver Lenders,
amend, modify or waive
Section
4.2
or any other provision of this Agreement if the effect of such amendment,
modification or waiver is to require the TermRevolver Lenders (pursuant to, in
the case of any such amendment to a provision hereof other than
Section
4.2
, any substantially concurrent request by the Borrower for a borrowing of
Loans) to make Loans when such Lenderswould not otherwise be required to do so;
(b) increase the Commitment of any Lender (or reinstate any Commitmentterminated
pursuant to
Section
8.2
) or the amount of Loans of any Lender, in any case, without the written
consent of such Lender;
(c) waive, extend or postpone any date fixed by this Agreement or any other
Loan Document for any payment of principal,interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document or
extend the expiration date for any Commitment, in each case without the
written consent of each Lender directly and adversely affectedthereby;
(d) reduce the principal of, or the rate of interest specified herein on, any
Loan (for the avoidance of doubt,other than pursuant to
Section
3.1(e)
), or (subject to
clause (ii)
of the proviso set forth in the paragraph below) any fees or other amounts
payable hereunder or under any other Loan Document, without thewritten consent
of each Lender directly and adversely affected thereby;
provided
that only the consent of the Required Lenders shall be necessary to waive any
obligation of the Borrower to pay interest at the rate set forth in
Section
3.1(b)
during the continuance of an Event of Default;
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(e) change
Section
3.6
or
Section
8.4
in a manner that would alter the
pro
rata
sharing of payments or order of application required thereby without the
written consent of each Lender directly and adversely affected thereby;
(f) except as otherwise permitted by this
Section
10.2
change any provision of this Section or reducethe percentages specified in the
definition of "Required Lenders", "Required Commercial Bank Term Loan Facility
Lenders", "Required Farm Credit Facilities Lenders", "Required Term Loan
FacilitiesLenders","Required Term Revolver Lenders" or any other provision
hereof specifying the number or percentage of Lenders or Voting Participants
required to amend, waive or otherwise modify any rights hereunder or make any
determinationor grant any consent hereunder, without the written consent of
each Lender or Voting Participants directly affected thereby;
(g) consent to the assignment or transfer by any Credit Party of such Credit
Party's rights and obligations under any LoanDocument to which it is a party
(except as permitted pursuant to
Section
7.3
), in each case, without the written consent of each Lender;
(h) release (i) all of the Subsidiary Guarantors or (ii) Subsidiary Guarantors
comprising substantially all of thecredit support for the Obligations, in any
case, from any guaranty agreement (other than as authorized in
Section
9.9
), without the written consent of each Lender;
(i) release all or substantially all of the Collateral or release any Security
Document (other than as authorized in
Section
9.9
or as otherwise specifically permitted or contemplated in this Agreement or
the applicable Security Document) without the written consent of each Lender;
or
(j) amend, modify or waive
Section
7.17(c)
, including any default thereunder, (and any relateddefinitions and
provisions) without the written consent of the Required Commercial Bank Term
Loan Facility Lenders; or
(k)amend, modify or waive the proviso of
Section
8.1(c)
, including any related definitions and provisions, without the written
consent of the Required Farm Credit Facilities Lenders,
provided
further
, that (i) no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition tothe Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; (ii) each Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only bythe parties thereto
and (iii) the Administrative Agent and the Borrower shall be permitted to
amend any provision of the Loan Documents (and such amendment shall become
effective without any further action or consent of any other party to anyLoan
Document) if the Administrative Agent and the Borrower shall have jointly
identified an obvious error or any error or omission of a technical or
immaterial nature in any such provision. Notwithstanding anything to the
contrary herein, noDefaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.
With respect to any matter requiring the approval of each Lender, each Lender
directly and adversely affected thereby or other specified Lenders, it
isunderstood that Voting Participants shall have the voting rights specified in
Section
10.8(d)
as to such matter.
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Section
10.3
Expenses; Indemnity
.
(a)
Costs and Expenses
. The Borrower and any other Credit Party, jointly and severally, shall pay
within 30 days ofwritten demand therefor all reasonable and documented
out-of-pocket
costs and expenses (including reasonable and documented fees, charges and
disbursements of oneprimary counsel for the Administrative Agent and the
Lenders taken as a whole and, if necessary, one local counsel in each
applicable jurisdiction), incurred by it in connection with the syndication/part
icipation of the Credit Facilities and thenegotiation, drafting, execution,
delivery and/or administration of this Agreement and the other Loan Documents,
with statements with respect to the foregoing to be submitted to the Borrower
at least three Business Days prior to the Closing Date (inthe case of amounts
to be paid on the Closing Date) and from time to time thereafter on a
quarterly basis or such other periodic basis as the Administrative Agent shall
deem appropriate. In addition, the Borrower shall be obligated to reimburse
theAdministrative Agent and each Lender for its reasonable and documented
out-of-pocket
costs and expenses (including reasonable and documented fees, charges
anddisbursements of counsel) incurred in connection with enforcement or
protection of its rights under this Agreement and the other Loan Documents or
incurred during any workout, restructuring or negotiations in respect of the
Loans made hereunder.
(b)
Indemnification by the Borrower
. The Borrower shall indemnify the Administrative Agent (and any
sub-agent
thereof), each Lender and each Related Party of any of the foregoing Persons
(each such Person being called an "
Indemnitee
") against, and hold each Indemnitee harmless from, and shall payor reimburse
any such Indemnitee within 30 days of written demand therefor (accompanied by
reasonable supporting documentation) for, any and all losses, claims
(including any Environmental Claims), penalties, damages, liabilities and
relatedexpenses (including the reasonable and documented fees, charges and
disbursements of one primary counsel, and, if reasonably necessary, one local
counsel in each relevant jurisdiction for the Indemnitees, taken as a whole
and in the case of anactual or perceived conflict of interest, one additional
counsel in each relevant jurisdiction to each affected Indemnitee), incurred
by any Indemnitee or asserted against any Indemnitee by any Person (including
the Borrower or any other CreditParty), arising out of, in connection with, or
as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of theirrespective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby (including the Transactions), (ii) any Loan or the use or proposed use
of the proceeds therefrom, (iii) any actual oralleged presence or release of
Hazardous Materials on or from any property owned or operated by any Credit
Party or any Subsidiary thereof, or any Environmental Claim related in any way
to any Credit Party or any Subsidiary, (iv) any actual orprospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a
third party or by any Credit Party or any Subsidiary thereof, and regardless
ofwhether any Indemnitee is a party thereto, or (v) any claim (including any
Environmental Claims), investigation, litigation or other proceeding (whether
or not the Administrative Agent or any Lender is a party thereto) and the
prosecution anddefense thereof, arising out of or in any way connected with
the Loans, this Agreement, any other Loan Document, or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby, includingreasonable and documented attorneys
and consultant's fees,
provided
that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses (A)
aredetermined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the bad faith, gross negligence or willful
misconduct of such Indemnitee (or of any such Indemnitee's affiliates,
officers, directors,employees, agents, advisors or controlling persons), (B)
result from a claim brought by any Credit Party or any Subsidiary thereof
against an Indemnitee for material breach of such Indemnitee's obligations
hereunder or under any other LoanDocument, if such Credit Party or such
Subsidiary has obtained
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a final and nonappealable judgment in its favor on such claim as determined by
a court of competent jurisdiction or (C) relate to any disputes or proceedings
that are brought by anIndemnitee against any other Indemnitee (other than any
claims against any agent or arranger in its respective capacity or fulfilling
its role as an agent or arranger or any similar role hereunder) to the extent
such disputes do not arise from anyact or omission on the part of any Credit
Party or its Affiliates. This
Section
10.3(b)
shall not apply with respect to Taxes other than any Taxes that represent
losses, claims, damages, etc. arising from any
non-Tax
claim.
(c)
Reimbursement by Lenders
. To the extent that the Borrower forany reason fails to indefeasibly pay any
amount required under
Section
10.3(a)
or
(b)
to be paid by it to the Administrative Agent (or any
sub-agent
thereof) or anyRelated Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such
sub-agent)
or such Related Party, as the case may be, such Lender's
pro
rata
share (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought based on each Lender's share of the aggregate
Total Credit Exposures of all Lenders at such time, or if the aggregate
TotalCredit Exposures have been reduced to zero, then based on such Lender's
share of the aggregate Total Credit Exposures of all Lenders immediately prior
to such reduction) of such unpaid amount (including any such unpaid amount in
respect of aclaim asserted by such Lender);
provided
, that the unreimbursed expense or indemnified loss, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted against
the Administrative Agent (or any such
sub-agent)
in its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such
sub-agent)
in connection with suchcapacity. The obligations of the Lenders under this
Section
10.3(c)
are subject to the provisions of
Section
3.7
.
(d)
Waiver of Consequential Damages, Etc.
To the fullest extent permitted by Applicable Law, (i) the Borrower andeach
other Credit Party shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of,
inconnection with, or as a result of, this Agreement, any other Loan Document
or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof
and (ii) theAdministrative Agent, any Arranger and each Lender shall not
assert, and hereby waives, any claim against any Credit Party or any
Subsidiary or any Affiliate thereof, on any theory of liability, for special,
indirect, consequential or punitivedamages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, anyLoan or the use of
the proceeds thereof. No Indemnitee referred to in
Section
10.3(b)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed byit through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby except to the extent such damages are
determined bya court of competent jurisdiction by final and nonappealable
judgment to have resulted from the bad faith, gross negligence or willful
misconduct of such Indemnitee. Notwithstanding the foregoing, nothing in this
Section
10.3(d)
shall limit the Credit Parties' indemnification obligations to the extent set
forth in this Agreement relating to claims of special, indirect, consequential
or punitive damages sought by third partiesagainst an Indemnitee.
(e)
Payments
. All amounts due under this
Section
shall be payable within 30 daysafter demand therefor.
(f)
Survival
. Each party's obligations under this
Section
shall survive thetermination of the Loan Documents and payment of the
obligations hereunder.
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Section
10.4
Right of Setoff
. Subject to
Section
3.6
and
Section
8.4
, if an Event of Default shall have occurred and be continuing, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted byApplicable Law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by
such Lender to or for thecredit or the account of the Borrower or any other
Credit Party against any and all of the obligations of the Borrower or such
Credit Party now or hereafter existing under this Agreement or any other Loan
Document to such Lender, irrespective ofwhether or not such Lender shall have
made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower or such Credit Party may be contingent or
unmatured or are owed to a branch or office of such Lenderdifferent from the
branch or office holding such deposit or obligated on such indebtedness;
provided
that in the event that any Defaulting Lender shall exercise any such right of
setoff, (x) all amounts so set off shall be paid overimmediately to the
Administrative Agent for further application in accordance with the provisions
of
Section
3.14
, pending such payment, shall be segregated by such Defaulting Lender from its
other funds and deemed held intrust for the benefit of the Administrative
Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender asto which it exercised such right
of setoff. The rights of each Lender under this
Section
are in addition to other rights and remedies (including other rights of
setoff) that such Lender may have. Each Lender agrees to notify the Borrower
andthe Administrative Agent promptly after any such setoff and application;
provided
that the failure to give such notice shall not affect the validity of such
setoff and application.
Section
10.5
Governing Law; Jurisdiction, Etc
.
(a)
Governing Law
. This Agreement and the other Loan Documents and any claim, controversy,
dispute or cause of action(whether in contract or tort or otherwise) based
upon, arising out of or relating to this Agreement or any other Loan Document
(except, as to any other Loan Document, as expressly set forth therein) and
the transactions contemplated hereby andthereby shall be governed by, and
construed in accordance with, the law of the State of New York.
(b)
Submission toJurisdiction
. Each of the parties hereto, on behalf of itself and its respective
Affiliates irrevocably and unconditionally agrees that it will not commence
any action, litigation or proceeding of any kind or description, whether in
law orequity, whether in contract or in tort or otherwise, in any way relating
to this Agreement or any other Loan Document or the transactions relating
hereto or thereto, in any forum other than the courts of the State of New York
sitting in New YorkCounty, and of the United States District Court of the
Southern District of New York, and any appellate court from any thereof, and
each of the parties hereto irrevocably and unconditionally submits to the
jurisdiction of such courts and agrees thatall claims in respect of any such
action, litigation or proceeding may be heard and determined in such New York
State court or, to the fullest extent permitted by Applicable Law, in such
federal court. Each of the parties hereto agrees that afinal judgment in any
such action, litigation or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by law.
(c)
Waiver of Venue
. Each of the parties hereto, on behalf of itself and its respective
Affiliates irrevocably andunconditionally waives, to the fullest extent
permitted by Applicable Law, any objection that it may now or hereafter have
to the laying of venue of any action or proceeding arising out of or relating
to this Agreement or any other Loan Document inany court referred to in
Section
10.5(b)
. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by Applicable Law, the defense of an inconvenient forum to the
maintenance of such action orproceeding in any such court.
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(d)
Service of Process
. Each party hereto irrevocably consents toservice of process in the manner
provided for notices in
Section
10.1
. Nothing in this Agreement will affect the right of any party hereto to serve
process in any other manner permitted by Applicable Law.
Section
10.6
Waiver of Jury Trial
.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY INANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO(A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGESTHAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section
10.7
Reversal of Payments
. To the extent any Credit Party makes a payment or payments to theAdministrativ
e Agent for the ratable benefit of the Lenders or the Administrative Agent
receives any payment or proceeds of the Collateral which payments or proceeds
or any part thereof are subsequently invalidated, declared to be fraudulent
orpreferential, set aside and/or required to be repaid to a trustee, receiver
or any other party under any Debtor Relief Law, other Applicable Law or
equitable cause, then, to the extent of such payment or proceeds repaid, the
Obligations or partthereof intended to be satisfied shall be revived and
continued in full force and effect as if such payment or proceeds had not been
received by the Administrative Agent.
Section
10.8
Successors and Assigns; Participations
.
(a)
Successors and Assigns Generally
. The provisions of this Agreement shall be binding upon and inure to the
benefit ofthe parties hereto and their respective successors and assigns
permitted hereby, except that neither the Borrower nor any other Credit Party
may assign or otherwise transfer any of its rights or obligations hereunder
without the prior writtenconsent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an assignee in accordance with the
provisions of
Section
10.8(b)
, (ii) by way of participation in accordance with the provisions of
Section
10.8(d)
or (iii) by way of pledge or assignment of a security interest subject to
therestrictions of
Section
10.8(e)
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person(other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in
Section
10.8(d)
and, to the extent expressly contemplated hereby, the Related Parties of
eachof the Administrative Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b)
Assignments by Lenders
. Any Lender may at any time assign to one or more assignees all or a portion
of its rightsand obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it);
provided
that, in each case with respect to any Credit Facility, any such assignment
shall be subject to the followingconditions:
(i)
Minimum Amounts.
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(A) in the case of an assignment of the assigning Lender's entireCommitment
and all such Lender's Loans, contemporaneous assignments to related Approved
Funds (determined after giving effect to such assignments) that equal at least
the amount specified in
Section
10.8(b)(i)(B)
inthe aggregate or an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in
Section
10.8(b)(i)(A)
above, the aggregate amount of the Commitment(which for this purpose includes
Loans outstanding thereunder) or, if there is no unused Commitment or such
Commitment has expired or terminated, the principal outstanding balance of the
Loans of the assigning Lender, in each case, subject to eachsuch assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date)shall not be
less than (x) $5,000,000 with respect to assignments of Term Revolver
Commitments or (y) $1,000,000 with respect to assignments of outstanding Loans
under a Term Loan Facility, unless each of the Administrative Agent and, so
long as noEvent of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed);
provided
that the Borrower shall be deemed to have given its consent five Business Days
after thedate written notice thereof has been delivered by the assigning
Lender (through the Administrative Agent) unless such consent is expressly
refused by the Borrower prior to such fifth Business Day;
(ii)
Proportionate Amounts
. Each partial assignment shall be made as an assignment of a proportionate
part of all theassigning Lender's rights and obligations under this Agreement
with respect to the Loan or the Commitment assigned, except that this
Section
10.8(b)(ii)
shall not prohibit any Lender from assigning all or a portion ofits rights and
obligations among separate classes on a non-
pro
rata
basis;
(iii)
Required Consents
.No consent shall be required for any assignment except to the extent required
by
Section
10.8(b)(i)(B)
of this
Section
and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (x) anEvent of Default has occurred and
is continuing at the time of such assignment or (y) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund;
provided
that the Borrower shall be deemed to have consented to any suchassignment
unless it shall object thereto by written notice to the Administrative Agent
within five Business Days after having received notice thereof; and
provided
further, that, solely with respect to the Borrower's ability toreasonably
withhold consent to an assignment under a Farm Credit Facility to a Lender
because such Lender is not a Farm Credit Lender (it being understood and
agreed that the Borrower may have another basis for reasonably withholding
consent to suchassignment), (A) if AgWest has not delivered a Transfer
Certificate to the Borrower, then the Borrower may withhold its consent to
such assignment in its sole discretion (and in such case, the Borrower shall
be deemed to have acted reasonably), and(B) if AgWest has delivered a Transfer
Certificate to the Borrower at least five Business Days prior to any such
proposed assignment, then the Borrower may not withhold its consent to such
assignment (and any such withholding of consent shallbe deemed unreasonable);
and
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(B) the consent of the Administrative Agent (such consent not to beunreasonably
withheld or delayed) shall be required for assignments in respect of any
Credit Facility if such assignment is to a Person that is not a Lender with a
Commitment, an Affiliate of such Lender or, an Approved Fund with respect to
suchLender.
(iv)
Assignment and Assumption
. The parties to each assignment shall execute and deliver to theAdministrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500 for each assignment;
provided
that (A) only one such fee will be payable in connection with simultaneous
assignments to two ormore related Approved Funds by a Lender and (B) the
Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee, if
it is not a Lender, shall deliver to theAdministrative Agent an Administrative
Questionnaire.
(v)
No Assignment to Certain Persons
. Notwithstandinganything to the contrary herein, no such assignment shall be
made to (A) the Borrower or any of its Subsidiaries or Affiliates, (B) any
Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming
a Lender hereunder,would constitute any of the foregoing Persons described in
this
clause (B)
, (C) any Disqualified Lender, or (D) a natural Person (or a holding company,
investment vehicle or trust for, or owned and operated for the primary benefit
of, anatural Person). Each assignee, by its execution and delivery of an
Assignment and Assumption, shall be deemed to have represented to the
assigning Lender and the Administrative Agent that such assignee is an
Eligible Assignee. In no event shall theAdministrative Agent be obligated to
ascertain, monitor or inquire as to whether any prospective assignee is an
Eligible Assignee or have any liability with respect to any assignment made to
a Disqualified Lender or any other Person that is not anEligible Assignee.
(vi)
Certain Additional Payments
. In connection with any assignment of rights and obligations ofany Defaulting
Lender hereunder, no such assignment shall be effective unless and until, in
addition to the other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the Administrative Agent
inan aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or
subparticipations, or other compensating actions, including funding, with the
consent of theBorrower and the Administrative Agent, the applicable
pro
rata
share of Loans previously requested, but not funded by, the Defaulting Lender,
to each of which the applicable assignee and assignor hereby irrevocably
consent), to(A) pay and satisfy in full all payment liabilities then owed by
such Defaulting Lender to the Administrative Agent and each other Lender
hereunder (and interest accrued thereon), and (B) acquire (and fund as
appropriate) its full
pro
rata
share of all Loans in accordance with its Commitment Percentage. Notwithstanding
the foregoing, in the event that any assignment of rights and obligations of
any Defaulting Lender hereunder shall become effective underApplicable Law
without compliance with the provisions of this
Section
10.8(b)(vi)
, then the assignee of such interest shall be deemed to be a Defaulting Lender
for all purposes of this Agreement until such complianceoccurs.
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(vii)
Disqualified Lenders
. The list of Disqualified Lenders(i) shall be made available to the Lenders
by posting on IntraLinks/IntraAgency or another relevant Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party websiteor whether sponsored by the
Administrative Agent) and (ii) shall be provided to any Lender upon request by
such Lender to the Administrative Agent. A Lender may provide the list of
Disqualified Lenders to any potential assignee or participanton a confidential
basis in accordance with
Section
10.9
hereof for the purpose of verifying whether such Person is a Disqualified
Lender.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to
Section
10.8(c)
, from and after the effectivedate specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to
the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under thisAgreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all ofthe
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto) but shall continue to be entitled to the
benefits of
Sections 3.8
,
3.9
,
3.10
,
3.11
and
10.3
with respect to facts and circumstances occurring prior to the effective date
of such assignment;
provided
that except to the extent otherwise expressly agreed by the affected parties,
no assignment by a Defaulting Lender will constitute awaiver or release of any
claim of any party hereunder arising from that Lender's having been a
Defaulting Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraphshall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
Section
10.8(d)
(other than a purported assignment to a natural Person or theBorrower or any
of the Borrower's Subsidiaries or Affiliates, which shall be null and void.)
(c)
Register
. TheAdministrative Agent, acting solely for this purpose as a
non-fiduciary
agent of the Borrower, shall maintain at one of its offices, a copy of each
Assignment and Assumption delivered to it and a register forthe recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amounts of (and stated interest on) the Loans owing to, each Lender pursuant
to the terms hereof from time to time (the "
Register
"). Theentries in the Register shall be conclusive, absent manifest error, and
the Borrower, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for allpurposes of this Agreement. The Register shall be
available for inspection by the Borrower and any Lender (but only to the
extent of entries in the Register that are applicable to such Lender), at any
reasonable time and from time to time uponreasonable prior notice.
(d)
Participations
. Any Lender may at any time, without the consent of, or notice to,
theBorrower or the Administrative Agent, sell participations to any Eligible
Assignee (a "
Participant
") in all or a portion of such Lender's rights and/or obligations under this
Agreement (including all or a portion of itsCommitment and/or the Loans owing
to it);
provided
that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performanceof such obligations and (iii) the Borrower,
the Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. For theavoidance of doubt, each Lender shall
be responsible for the indemnity under
Section
10.3(c)
with respect to any payments made by such Lender to its Participant(s).
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Any agreement or instrument pursuant to which a Lender sells such a
participation shallprovide that such Lender shall retain the sole right to
enforce this Agreement and, subject to the paragraph below regarding the
rights of Voting Participants, to approve any amendment, modification or
waiver of any provision of this Agreement;
provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification
or waiver described in
Section
10.2(b)
,
(c)
or
(d)
that directly and adversely affects such Participant. The Borrower agrees that
each Participant shall be entitled to the benefits of
Sections 3.9
,
3.10
and
3.11
(subject to the requirements and limitationstherein, including the
requirements under
Section
3.11(g)
(it being understood that the documentation required under
Section
3.11(g)
shall be delivered to the participating Lender)) to the sameextent as if it
were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section;
provided
that such Participant (A) agrees to be subject to the provisions of
Section
3.12
as if it were an assignee under subsection (b) of this Section; and (B) shall
not be entitled to receive any greater payment under
Sections 3.10
or
3.11
, with respect to anyparticipation, than its participating Lender would have
been entitled to receive, except to the extent such entitlement to receive a
greater payment results from a Change in Law that occurs after the Participant
acquired the applicableparticipation. Each Lender that sells a participation
agrees, at the Borrower's request and expense, to use reasonable efforts to
cooperate with the Borrower to effectuate the provisions of
Section
3.12(b)
with respectto any Participant. To the extent permitted by law, each
Participant also shall be entitled to the benefits of
Section
10.4
as though it were a Lender;
provided
that such Participant agrees to be subject to
Section
3.6
as though it were a Lender (in each case, with any terms applicable to any
Defaulting Lender read to apply with respect to any Defaulting Voting
Participant). For the avoidance of doubt, (a) the sale by anyLender of a
participation to any Participant (whether a Voting Participant or otherwise)
shall not relieve such Lender of any obligation hereunder and (b) no Voting
Participant or other Participant shall have any contractual privity with
theBorrower or any Credit Party, or be entitled to directly enforce or direct
the Administrative Agent to enforce any of the terms under the Loan Documents,
other than such rights that are expressly conferred on a "Participant" as set
forthin this Agreement.
Each Lender that sells a participation shall, acting solely for this purpose
as a
non-fiduciary
agent of the Borrower, maintain a register on which it enters the name and
address of each Participant and the principal amounts of (and stated interest
on) each Participant's interest inthe Loans or other obligations under the
Loan Documents (the "
Participant Register
");
provided
that no Lender shall have any obligation to disclose all or any portion of the
Participant Register (including the identity of anyParticipant or any
information relating to a Participant's interest in any commitments, loans or
its other obligations under any Loan Document) to any Person except to the
extent that such disclosure is necessary to establish that suchcommitment,
loan or other obligation is in registered form under
Section 5f.103-1(c)
of the United States Treasury Regulations. The entries in the Participant
Register shall be conclusive absent manifesterror, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of
such participation for all purposes of this Agreement notwithstanding any
notice to the contrary. For the avoidance of doubt, theAdministrative Agent
(in its capacity as Administrative Agent) shall have no responsibility for
maintaining a Participant Register.
Notwithstanding the paragraph above, any Participant that is a Farm Credit
Lender that (i) has purchased a participation in a minimumamount of
$10,000,000, (ii) has been designated as a voting participant (a "
Voting Participant
") in a written notice (a "
Voting Participant Notice
") sent by the selling Lender (including any existing VotingParticipant) to
the Administrative Agent and the Borrower and (iii) receives, prior to
becoming a Voting Participant, the consent of the Administrative Agent and the
Borrower (such consent to be required only to the extent and under
thecircumstances it would be required if such Voting Participant were to
become a Lender pursuant to an assignment in accordance with
Section
10.8(b)
and such consent is not required for an assignment to an existing
VotingParticipant), shall be entitled to vote as if such Voting Participant
were a Lender on all matters subject to a vote by Lenders, and the voting
rights of the selling Lender shall be correspondingly reduced, on a
dollar-for-dollar
basis. Each Voting Participant Notice shall include, with respect to each
Voting Participant, the information that would be included by a prospective
Lender in an Assignment and Assumption.Notwithstanding the foregoing, each
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Farm Credit Lender that has purchased a participation and has been designated
as a Voting Participant in
Schedule 10.8(d)
as of the Closing Date shall be a Voting Participant. The sellingLender
(including any existing Voting Participant) and the purchasing Voting
Participant shall notify the Administrative Agent and the Borrower within
three Business Days of any termination, reduction or increase of the amount
of, suchparticipation. The Administrative Agent shall be entitled to
conclusively rely on information contained in Voting Participant Notices and
all other notices delivered pursuant hereto. The voting rights of each Voting
Participant are solely for thebenefit of such Voting Participant and shall not
inure to any assignee or participant of such Voting Participant that is not
itself a Voting Participant.
(e)
Certain Pledges
. Any Lender may at any time pledge or assign a security interest in all or
any portion of its rightsunder this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank;
provided
that no such pledge or assignment shall release such Lender from any of its
obligationshereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(f)
Cashless Settlement
.Notwithstanding anything to the contrary contained in this Agreement, any
Lender may exchange, continue or rollover all or a portion of its Loans in
connection with any refinancing, extension, loan modification or similar
transaction permitted bythe terms of this Agreement, pursuant to a cashless
settlement mechanism approved by the Borrower, the Administrative Agent and
such Lender.
Section
10.9
Treatment of Certain Information; Confidentiality
. Each of the Administrative Agent, theLenders and, by their purchase of a
participation, the Voting Participants agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be
disclosed (a) to its Affiliates and to its Related Partiesin connection with
the Credit Facilities, this Agreement, the transactions contemplated hereby or
in connection with marketing of services by such Affiliate or Related Party to
the Borrower or any of its Subsidiaries (it being understood that thePersons
to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential on
substantially the same terms as provided herein), (b) to the extent required
or requestedby, or required to be disclosed to, any regulatory or similar
authority purporting to have jurisdiction over such Person or its Related
Parties (including any self-regulatory authority, such as the National
Association of Insurance Commissioners)(in which case the Administrative Agent
or the applicable Lender shall, except with respect to any audit or
examination conducted by bank accountants or any governmental bank regulatory
authority exercising examination or regulatory authority,promptly notify the
Borrower, in advance, to the extent practicable and lawfully permitted to do
so), (c) to the extent required by Applicable Laws pursuant to a subpoena or
an order of any court or administrative agency or in any pending legal
oradministrative proceeding or process (in which case, the Administrative
Agent or the applicable Lender shall, to the extent permitted by Applicable
Law, inform the Borrower promptly in advance thereof so the Borrower may seek
a protective order ortake other appropriate action), (d) to any other party
hereto, (e) in connection with the exercise of any remedies under this
Agreement, under any other Loan Document, or any action or proceeding relating
to this Agreement, or any other LoanDocument or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this
Section
, to (i) any assignee of or Participant in, or any prospective assigneeof or
Participant in, any of its rights and obligations under this Agreement, (ii)
any actual or prospective party (or its Related Parties) to any swap,
derivative or other transaction under which payments are to be made by
reference to theBorrower and its obligations, this Agreement or payments
hereunder, (iii) to an investor or prospective investor in an Approved Fund
that also agrees that Information shall be used solely for the purpose of
evaluating an investment in suchApproved Fund, (iv) to a trustee, collateral
manager, servicer, backup servicer, noteholder or secured party in an Approved
Fund in connection with the administration, servicing and reporting on the
assets serving as collateral for an ApprovedFund, or (v) to a nationally
recognized rating agency that requires access to information regarding the
Borrower and its Subsidiaries, the Loans
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and the Loan Documents in connection with ratings issued with respect to an
Approved Fund, (g) on a confidential basis to (i) with the consent of the
Borrower, any rating agency inconnection with rating the Borrower or its
Subsidiaries or the Credit Facilities or (ii) the CUSIP Service Bureau or any
similar agency in connection with the issuance and monitoring of CUSIP numbers
with respect to the Credit Facilities,(h) deal terms and other information
customarily reported to Thomson Reuters, other bank market data collectors and
similar service providers to the lending industry and service providers to the
Administrative Agent and the Lenders inconnection with the administration of
the Loan Documents, (i) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this
Section
or (ii) becomes available to the AdministrativeAgent, any Lender or any of
their respective Affiliates from a third party that is not, to such Person's
knowledge, subject to confidentiality obligations to the Borrower, (j) to
governmental regulatory authorities in connection with anyregulatory
examination of the Administrative Agent or any Lender or in accordance with
the Administrative Agent's or any Lender's regulatory compliance policy if the
Administrative Agent or such Lender deems necessary for the mitigation
ofclaims by those authorities against the Administrative Agent or such Lender
or any of its subsidiaries or affiliates (in which case, the Administrative
Agent or the applicable Lender shall, to the extent permitted by Applicable
Law, inform theBorrower promptly in advance thereof so the Borrower may seek a
protective order or take other appropriate action), (k) to the extent that
such information is independently developed by such Person, or (l) for
purposes of establishing a"due diligence" defense. For purposes of this
Section
, "
Information
" means all information received from any Credit Party or any Subsidiary
thereof relating to any Credit Party or any Subsidiary thereof or any oftheir
respective businesses, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Credit Party or any Subsidiary thereof. Any Person required
to maintainthe confidentiality of Information as provided in this
Section
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality
of such Information as suchPerson would accord to its own confidential
information.
Section
10.10
Performance of Duties
.Each of the Credit Party's obligations under this Agreement and each of the
other Loan Documents shall be performed by such Credit Party at its sole cost
and expense.
Section
10.11
All Powers Coupled with Interest
. All powers of attorney and other authorizationsgranted to the Lenders, the
Administrative Agent and any Persons designated by the Administrative Agent or
any Lender pursuant to any provisions of this Agreement or any of the other
Loan Documents shall be deemed coupled with an interest and shallbe
irrevocable so long as any of the Obligations remain unpaid or unsatisfied,
any of the Commitments remain in effect or the Credit Facilities have not been
terminated.
Section
10.12
Survival
.
(a) All representations and warranties set forth in
Article V
and all representations and warranties contained in anycertificate, or any of
the Loan Documents (including any such representation or warranty made in or
in connection with any amendment thereto) shall constitute representations and
warranties made under this Agreement. All representations andwarranties made
under this Agreement shall be made or deemed to be made at and as of the
Closing Date (except those that are expressly made as of a specific date),
shall survive the Closing Date and shall not be waived by the execution and
deliveryof this Agreement, any investigation made by or on behalf of the
Lenders or any borrowing hereunder.
(b) Notwithstandingany termination of this Agreement, the indemnities to which
the Administrative Agent and the Lenders are entitled under the provisions of
this
Article X
and any other provision of this Agreement and the other Loan Documents shall
continue infull force and effect and shall protect the Administrative Agent
and the Lenders against events arising after such termination as well as
before.
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Section
10.13
Titles and Captions
. Titles andcaptions of Articles, Sections and subsections in, and the table
of contents of, this Agreement are for convenience only, and neither limit nor
amplify the provisions of this Agreement.
Section
10.14
Severability of Provisions
. Any provision of this Agreement or any other Loan Documentwhich is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the
remaining provisionshereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section
10.15
Counterparts; Integration; Effectiveness; Electronic Execution
.
(a) This Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of whichshall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement and the other Loan Documents, and any separate letter agreements
with respect to fees payable to the Administrative Agent and/orthe Arranger,
constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section
4.1
, this Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear thesignatures of each of
the other parties hereto.
(b) Delivery of an executed counterpart of a signature page of(x) this
Agreement, (y) any other Loan Document and/or (z) any document, amendment,
approval, consent, information, notice (including, for the avoidance of doubt,
any notice delivered pursuant to
Section
10.1
), certificate, request, statement, disclosure or authorization related to
this Agreement, any other Loan Document and/or the transactions contemplated
hereby and/or thereby (each an "
AncillaryDocument
") that is an Electronic Signature transmitted by telecopy, emailed pdf. or
any other electronic means that reproduces an image of an actual executed
signature page shall be effective as delivery of a manually executed
counterpartof this Agreement, such other Loan Document or such Ancillary
Document, as applicable. The words "execution," "signed," "signature,"
"delivery," and words of like import in or relating to this Agreement,
anyother Loan Document and/or any Ancillary Document shall be deemed to
include Electronic Signatures, deliveries or the keeping of records in any
electronic form (including deliveries by telecopy, emailed pdf. or any other
electronic means thatreproduces an image of an actual executed signature
page), each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature, physical delivery thereof or
the use of a paper-based recordkeeping system, asthe case may be; provided
that nothing herein shall require the Administrative Agent to accept
Electronic Signatures in any form or format without its prior written consent
and pursuant to procedures approved by it; provided, further, withoutlimiting
the foregoing, (i) to the extent the Administrative Agent has agreed to accept
any Electronic Signature, the Administrative Agent and each of the Lenders
shall be entitled to rely on such Electronic Signature purportedly given by or
onbehalf of the Borrower or any other Credit Party without further
verification thereof and without any obligation to review the appearance or
form of any such Electronic Signature and (ii) upon the request of the
Administrative Agent or anyLender, any Electronic Signature shall be promptly
followed by a manually executed counterpart. Without limiting the generality
of the foregoing, the Borrower and each Credit Party hereby (A) agrees that,
for all purposes, including withoutlimitation, in
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connection with any workout, restructuring, enforcement of remedies,
bankruptcy proceedings or litigation among the Administrative Agent, the
Lenders, the Borrower and the Credit Parties,Electronic Signatures transmitted
by telecopy, emailed pdf. or any other electronic means that reproduces an
image of an actual executed signature page and/or any electronic images of
this Agreement, any other Loan Document and/or any AncillaryDocument shall
have the same legal effect, validity and enforceability as any paper original,
(B) the Administrative Agent and each of the Lenders may, at its option,
create one or more copies of this Agreement, any other Loan Document and/orany
Ancillary Document in the form of an imaged electronic record in any format,
which shall be deemed created in the ordinary course of such Person's
business, and destroy the original paper document (and all such electronic
records shall beconsidered an original for all purposes and shall have the
same legal effect, validity and enforceability as a paper record), (C) waives
any argument, defense or right to contest the legal effect, validity or
enforceability of this Agreement, anyother Loan Document and/or any Ancillary
Document based solely on the lack of paper original copies of this Agreement,
such other Loan Document and/or such Ancillary Document, respectively,
including with respect to any signature pages thereto and(D) waives any claim
against any Indemnitee for any Liabilities arising solely from the
Administrative Agent's and/or any Lender's reliance on or use of Electronic
Signatures and/or transmissions by telecopy, emailed pdf. or any otherelectronic
means that reproduces an image of an actual executed signature page,
including any Liabilities arising as a result of the failure of the Borrower
and/or any Credit Party to use any available security measures in connection
with theexecution, delivery or transmission of any Electronic Signature.
Section
10.16
Term of Agreement
.This Agreement shall remain in effect from the Closing Date through and
including the date upon which all Obligations (other than contingent
indemnification obligations not then due) arising hereunder or under any other
Loan Document shall have beenindefeasibly and irrevocably paid and satisfied
in full and the Aggregate Commitments have been terminated. No termination of
this Agreement shall affect the rights and obligations of the parties hereto
arising prior to such termination or inrespect of any provision of this
Agreement which survives such termination.
Section
10.17
USA PATRIOTAct
. Each Lender that is subject to the PATRIOT Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the PATRIOT Act, it
isrequired to obtain, verify and record information that identifies each
Credit Party, which information includes the name and address of such Credit
Party and other information that will allow such Lender or the Administrative
Agent, as applicable,to identify such Credit Party in accordance with the
PATRIOT Act. The Borrower shall, promptly following a request by the
Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or suchLender requests in order to
comply with its ongoing obligations under applicable "know your customer" and
anti-money laundering rules and regulations, including the PATRIOT Act.
Section
10.18
Independent Effect of Covenants
. The Borrower expressly acknowledges and agrees thateach covenant contained in
Articles VI
or
VII
hereof shall be given independent effect. Accordingly, the Borrower shall not
engage in any transaction or other act otherwise permitted under any covenant
contained in
Articles VI
or
VII
, before or after giving effect to such transaction or act, the Borrower shall
or would be in breach of any other covenant contained in
Articles VI
or
VII
.
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Section
10.19
No Advisory or FiduciaryResponsibility
.
(a) In connection with all aspects of each transaction contemplated hereby,
each Credit Partyacknowledges and agrees, and acknowledges its Affiliates'
understanding, that (i) the facilities provided for hereunder and any related
arranging or other services in connection therewith (including in connection
with any amendment, waiveror other modification hereof or of any other Loan
Document) are an
arm's-length
commercial transaction between the Borrower and its Affiliates, on the one
hand, and the Administrative Agent, the Arrangerand the Lenders, on the other
hand, and the Borrower is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents (including anyamendment,
waiver or other modification hereof or thereof), (ii) in connection with the
process leading to such transaction, each of the Administrative Agent, the
Arranger and the Lenders is and has been acting solely as a principal and is
not thefinancial advisor, agent or fiduciary, for the Borrower or any of its
Affiliates, stockholders, creditors or employees or any other Person, (iii)
none of the Administrative Agent, the Arranger or the Lenders has assumed or
will assume anadvisory, agency or fiduciary responsibility in favor of the
Borrower with respect to any of the transactions contemplated hereby or the
process leading thereto, including with respect to any amendment, waiver or
other modification hereof or of anyother Loan Document (irrespective of
whether any Arranger or Lender has advised or is currently advising the
Borrower or any of its Affiliates on other matters) and none of the
Administrative Agent, the Arranger or the Lenders has any obligation tothe
Borrower or any of its Affiliates with respect to the financing transactions
contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents, (iv) the Arranger and the Lenders and their
respectiveAffiliates may be engaged in a broad range of transactions that
involve interests that differ from, and may conflict with, those of the
Borrower and its Affiliates, and none of the Administrative Agent, the
Arranger or the Lenders has any obligationto disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship and (v) the
Administrative Agent, the Arranger and the Lenders have not provided and will
not provide any legal, accounting, regulatory or tax advicewith respect to any
of the transactions contemplated hereby (including any amendment, waiver or
other modification hereof or of any other Loan Document) and the Credit
Parties have consulted their own legal, accounting, regulatory and tax
advisorsto the extent they have deemed appropriate.
(b) Each Credit Party acknowledges and agrees that each Lender, the
Arrangerand any Affiliate thereof may lend money to, invest in, and generally
engage in any kind of business with, any of the Borrower, any Affiliate
thereof or any other person or entity that may do business with or own
securities of any of the foregoing,all as if such Lender, Arranger or
Affiliate thereof were not a Lender or Arranger or an Affiliate thereof (or an
agent or any other person with any similar role under the Credit Facilities)
and without any duty to account therefor to any otherLender, the Arranger, the
Borrower or any Affiliate of the foregoing. Each Lender, the Arranger and any
Affiliate thereof may accept fees and other consideration from the Borrower or
any Affiliate thereof for services in connection with thisAgreement, the
Credit Facilities or otherwise without having to account for the same to any
other Lender, the Arranger, the Borrower or any Affiliate of the foregoing.
Section
10.20
Inconsistencies with Other Documents
. In the event there is a conflict or inconsistencybetween this Agreement and
any other Loan Document, other than the Intercreditor Agreement (which
inconsistencies shall be governed by and be subject to
Section
8.8
), the terms of this Agreement shall control;
provided
that any provision of the Security Documents which imposes additional burdens
on the Borrower or any of its Subsidiaries or further restricts the rights of
the Borrower or any of its Subsidiaries or gives the Administrative Agent
orLenders additional rights shall not be deemed to be in conflict or
inconsistent with this Agreement and shall be given full force and effect.
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Section
10.21
Acknowledgement and Consent to
Bail-In
of Affected Financial Institutions
. Solely to the extent any Lender that is an Affected Financial Institution is
a party to this Agreement and notwithstanding anything to the contrary in any
LoanDocument or in any other agreement, arrangement or understanding among any
such parties, each party hereto acknowledges that any liability of any Lender
that is an Affected Financial Institution arising under any Loan Document may
be subject to the
Write-Down
and Conversion Powers of the applicable Resolution Authority and agrees and
consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable
Resolution Authority to any such liabilitiesarising hereunder which may be
payable to it by any Lender that is an Affected Financial Institution; and
(b) the effectsof any
Bail-In
Action on any such liability, including, if applicable:
(i) areduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, suchliability into shares or other
instruments of ownership in such Affected Financial Institution, its parent
entity, or a bridge institution that may be issued to it or otherwise
conferred on it, and that such shares or other instruments of ownershipwill be
accepted by it in lieu of any rights with respect to any such liability under
this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the
exercise of the Write-Down and Conversion Powers ofthe applicable Resolution
Authority.
Section
10.22
Amendment and Restatement.
The parties heretoagree that, on the Closing Date, the following shall be
deemed to occur automatically, without further action by any party hereto: (a)
the Existing Credit Agreement shall be deemed to be amended and restated in
its entirety pursuant to thisAgreement, (b) all references in the other Loan
Documents to the Existing Credit Agreement shall be deemed to refer without
further amendment to this Agreement and (c) the Existing Fixed Rate Loan under
the Existing Credit Agreement shallbecome a Fixed Rate Loan under this
Agreement at the same Fixed Rate and with the same Interest Period as existed
under the Existing Credit Agreement. The parties hereto further acknowledge
and agree that this Agreement constitutes an amendment tothe Existing Credit
Agreement made under and in accordance with the terms of
Section
10.2
of the Existing Credit Agreement. The parties do not intend this Agreement nor
the transactions contemplated hereby to be, and thisAgreement and the
transactions contemplated hereby shall not be construed to be, a novation of
any of the obligations owing by the Borrower or any other Credit Party under
or in connection with the Existing Credit Agreement or any of the other
LoanDocuments (as defined in the Existing Credit Agreement).
[
Signature pages to follow
]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under sealby their duly authorized officers, all as of the day and
year first written above.
CLEARWATER PAPER CORPORATION,
asBorrower
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
-------------------------------------------------------------------------------
ADMINISTRATIVE AGENT:
AGWEST FARM CREDIT, PCA, as Administrative Agent
By: /s/ Ryan Stipe
Name: Ryan Stipe
Title: Relationship Manager / VP
-------------------------------------------------------------------------------
COMMERCIAL BANK LENDERS: COOPERATIEVE RABOBANK, NEW YORK BRANCH,
as a Commercial Bank Lender
By: /s/ Andre Baladi
Name: Andre Baladi
Title: Managing Director
By: /s/ Irene Stephens
Name: Irene Stephens
Title: Executive Director
KEYBANK NATIONAL ASSOCIATION,
asa Commercial Bank Lender
By: /s/ Tod Finley
Name: Tod Finley
Title: Senior Vice President
-------------------------------------------------------------------------------
FARM CREDIT LENDERS: AGWEST FARM CREDIT, PCA,
as aFarm Credit Lender
By: /s/ Ryan Stipe
Name: Ryan Stipe
Title: Relationship Manager / VP
-------------------------------------------------------------------------------
VOTING PARTICIPANTS: COBANK, ACB,
as a VotingParticipant
By: /s/ Trace Adams
Name: Trace Adams
Title: Assistant Vice President
FARM CREDIT EAST, ACA,
as aVoting Participant
By: /s/ Scott G. Kenney
Name: Scott G. Kenney
Title: SVP
AGFIRST, FCB,
as a VotingParticipant
By: /s/ Creighton Culvern
Name: Creighton Culvern
Title: AVP, Capital Markets
Exhibit 10.2
Execution Version
FIFTH AMENDMENT TO ABL CREDIT AGREEMENT AND OMNIBUS AMENDMENT
THIS
FIFTH AMENDMENT TO ABL CREDIT AGREEMENT AND OMNIBUS AMENDMENT
(this "
Amendment
") is entered into as ofMay 1, 2024 by Clearwater Paper Corporation, a
Delaware corporation (the "
Borrower
"), the undersigned Subsidiary Guarantors (the "
Guarantors
" and, together with the Borrower, the "
LoanParties
"), each of lenders party to the Existing Credit Agreement (defined below)
(the "
Existing Lenders
"), the New Lender (as defined below) (together with the Existing Lenders,
collectively, the"
Lenders
") and JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders.
R E C I T A L S
A. The Borrower, the Administrative Agent and the Existing Lenders are parties
to that certain ABL Credit Agreement, dated as of July 26,2019 (as amended by
the First Amendment to ABL Credit Agreement dated as of August 7, 2020, the
Second Amendment to ABL Credit Agreement dated as of April 21, 2022, the Third
Amendment to ABL Credit Agreement dated as of November 7,2022, the Fourth
Amendment to ABL Credit Agreement dated as of October 27, 2023, and as further
amended, restated, amended and restated, supplemented or otherwise modified
prior to the date hereof, the "
Existing CreditAgreement
"), pursuant to which the Existing Lenders have made certain credit available
to and on behalf of the Borrower.
B. Inconnection with the Existing Credit Agreement, the Loan Parties and the
Administrative Agent entered into that certain ABL Guarantee and Collateral
Agreement, dated as of July 26, 2019 (as amended by the First Amendment to ABL
Guarantee andCollateral Agreement dated as of October 27, 2023, and as further
amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the "
Existing Guarantee and Collateral Agreement
").
C. The Borrower has requested (i) that the Total Commitments be increased from
$275,000,000 to $375,000,000 and Cooperatieve RabobankU.S., New York Branch
(the "
New Lender
") become a party to the Credit Agreement as a Lender and (ii) certain other
amendments and modifications be made to the Existing Credit Agreement, and the
Agent and the Existing Lendershave agreed to such increase, other amendments
and modifications on the terms and subject to the conditions set forth herein.
D. TheBorrower has informed the Administrative Agent and the Lenders that the
Borrower has entered into that certain Asset Purchase Agreement, dated as of
February 20, 2024 (together with the exhibits, annexes and schedules thereto,
as applicable,the "
Augusta Acquisition Agreement
"), between the Borrower, as buyer, and Graphic Packaging International, LLC,
as seller, pursuant to which the Borrower intends to, directly or indirectly,
acquire the assets specified therein fromGraphic Packaging International, LLC
(the "
Augusta Mill Acquisition
").
E. NOW, THEREFORE, to induce the AdministrativeAgent and the Lenders to enter
into this Amendment and in consideration of the premises and the mutual
covenants herein contained, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties heretoagree as
follows:
Section 1.
Defined Terms
. Each capitalized term used herein but not otherwise defined herein has
themeaning given such term in the Existing Credit Agreement, as amended by
this Amendment (as so amended and as the same may be further amended,
restated, amended and restated, supplemented or otherwise modified from time
to time, the "
CreditAgreement
"). Unless otherwise indicated, all article, exhibit, section and schedule
references in this Amendment refer to articles, exhibits, sections and
schedules of the Credit Agreement.
-------------------------------------------------------------------------------
Section 2.
New Lender; Increase of Total Commitments; Assignment and Reallocation
ofCommitments
. The Lenders have agreed to increase the Total Commitments to $375,000,000
and the parties hereto hereby agree to the following: (a) the assignment of
certain of the Lenders' respective Commitments, Revolving Extensions ofCredit
and Aggregate Exposures and (b) certain of the Lenders acquiring and assuming
an interest in the Commitments, Revolving Extensions of Credit and Aggregate
Exposures assigned by certain of the other Lenders pursuant to
Section
2(a)
hereof. Such assignments and assumptions are made pursuant to the terms,
provisions and representations of the Assignment and Assumption attached as
Exhibit E
to the Existing Credit Agreement as if eachapplicable party hereto had
executed and delivered, or consented to, an Assignment and Assumption (with
the Effective Date, as defined therein, being the Fifth Amendment Effective
Date (as defined below)). On the Fifth Amendment Effective Date andafter
giving effect to such assignments and assumptions, each party hereto agrees
that (i) the Commitment of each Lender shall be as set forth on
Schedule 1.1A
attached to
Exhibit A
hereto, which schedule supersedes and replaces
Schedule 1.1A
to the Existing Credit Agreement and (ii) the New Lender shall be a "Lender"
for all purposes under the Credit Agreement and the other Loan Documents. In
connection with, and for purposes of, the assignments andassumptions effected
by this Agreement only, the Lenders, the Administrative Agent and the Borrower
waive the processing and recordation fee under Section 10.6(b)(ii)(B)(1) of
the Existing Credit Agreement.
Section 3.
Amendments to Credit Agreement
. Each of the parties hereto agrees that, effective as of the Fifth Amendment
EffectiveDate:
3.1. The Existing Credit Agreement is hereby amended and replaced as set forth
in the restated copy of the Credit Agreement attachedas
Exhibit A
hereto (it being agreed, for the avoidance of doubt, that nothing in this
Amendment amends or modifies the Exhibits or Schedules to the Credit
Agreement, except as set forth in
Section
2
hereof).
Section 4.
Amendments to Guarantee and Collateral Agreement
. Each of the parties hereto agrees that, effective as of the FifthAmendment
Effective Date:
4.1. The Existing Guarantee and Collateral Agreement is hereby amended by this
Amendment (as so amended and asthe same may be further amended, restated,
amended and restated, supplemented or otherwise modified from time to time,
the "Guarantee and Collateral Agreement") as follows:
(a) The definition of "Excluded Property" is hereby amended by (i) replacing
each instance of "Fourth Amendment EffectiveDate" with "Fifth Amendment
Effective Date" and (ii) by replacing each instance of "PCA Facility" with
"Existing
Non-ABL
Agreement."
(b) Section 8.1(b) is hereby amended by deleting the first sentence thereof
and replacing it with the following:
"On or before (i) the Control Agreement Deadline and (ii) solely with respect
to Account Debtors obligated on Accounts acquiredpursuant to the Augusta Mill
Acquisition, the expiration or earlier termination of the Transition Services
Agreement (as defined in the Augusta Acquisition Agreement), each Grantor
shall direct all of its Account Debtors to forward payments directlyto lock
boxes which shall be Lock Boxes subject to Lock Box Agreements or a Deposit
Account that shall be a Collateral Deposit Account, in each case in accordance
with Section 8.1(a) or 8.2."
2
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Section 5.
Conditions Precedent
. This Amendment shall be deemed effective uponthe date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.1
of the Credit Agreement) (such date, the "
Fifth Amendment Effective Date
"):
5.1.
Execution and Delivery
. The Administrative Agent shall have received (a) from the Loan Parties and
each Lender, counterparts(in such number as may be requested by the
Administrative Agent) of this Amendment signed on behalf of such Person and
(b) the executed Term Intercreditor Agreement.
5.2.
Payment of Fees and Expenses
. The Administrative Agent and the Lenders shall have received all amounts due
and payable on or priorto the Fifth Amendment Effective Date, including, to
the extent invoiced at least one (1) Business Day prior to the Fifth Amendment
Effective Date, reimbursement or payment of all documented
out-of-pocket
expenses required to be reimbursed or paid by the Borrower under the Credit
Agreement.
5.3.
Representations and Warranties; No Default or Event of Default
. In each case as of the Fifth Amendment Effective Date: (a) noDefault or
Event of Default shall have occurred and be continuing and (b) all of the
representations and warranties contained in each Loan Document to which any
Loan Party is a party shall be true and correct in all material respects,
except tothe extent any such representations and warranties are stated to
relate solely to an earlier date, in which case, such representations and
warranties shall have been true and correct in all material respects on and as
of such earlier date(
provided
that such materiality qualifier shall not be applicable to any representation
or warranty that is already qualified or modified by materiality in the Credit
Agreement).
5.4.
Officer's Certificate; Good Standing Certificate
. The Administrative Agent shall have received (a) a certificate of eachLoan
Party, dated the Fifth Amendment Effective Date, attaching (i) the certificate
of incorporation, in the case of a Loan Party that is a corporation, and
certificate of formation, in the case of a Loan Party that is a limited
liabilitycompany, in each case certified by the relevant authority of the
jurisdiction of organization of such Loan Party as of a recent date, (ii) the
bylaws, in the case of a Loan Party that is a corporation, and limited
liability company agreement oroperating agreement, in the case of a Loan Party
that is a limited liability company, certified as of the Fifth Amendment
Effective Date by its secretary, an assistant secretary or a Responsible
Officer as being in full force and effect withoutmodification or amendment,
(iii) resolutions of the governing bodies of each Loan Party approving and
authorizing the execution, delivery and performance of this Amendment and the
Loan Documents as amended hereby and thereby, certified as ofthe Fifth
Amendment Effective Date by its secretary, an assistant secretary or a
Responsible Officer as being in full force and effect without modification or
amendment and (iv) true and correct copies of the
Non-ABL
Facility Documents (other than any fee letters) which shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Lenders and (b) a long form good standingcertificate for each Loan Party from
its jurisdiction of organization.
5.5.
Lien Searches and Release Documentation
. TheAdministrative Agent shall have received the results of a recent Lien
search with respect to each Loan Party, and such search shall reveal no Liens
on any of the assets of the Loan Parties except for Liens permitted by Section
7.3 of the CreditAgreement or discharged on or prior to the Fifth Amendment
Effective Date pursuant to documentation reasonably satisfactory to the
Administrative Agent.
5.6.
Closing Certificate
. The Administrative Agent shall have received a certificate of a Responsible
Officer of the Borrower, datedthe Fifth Amendment Effective Date, certifying
as to the satisfaction of the conditions contained in
Section
5.3
.
5.7.
Augusta Mill Acquisition Closing
. The Augusta Mill Acquisition shall have been consummated, substantially on
the terms set forthin the Augusta Acquisition Agreement, substantially
concurrently with the Fifth Amendment Effective Date, and the Administrative
Agent shall have received a certificate of a Responsible Officer certifying
thereto and attaching the AugustaAcquisition Agreement and all amendments,
restatements, supplements or other modifications thereto.
3
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5.8.
Solvency Certificate
. The Administrative Agent shall have received a solvencycertificate from a
Responsible Officer substantially in the form of Exhibit L to the Credit
Agreement.
5.9.
Legal Opinions
. TheAdministrative Agent shall have received the executed legal opinion of
Pillsbury Winthrop Shaw Pittman LLP, counsel to the Borrower and its
Restricted Subsidiaries, in form and substance reasonably acceptable to the
Administrative Agent.
The Administrative Agent is hereby authorized and directed to declare this
Amendment to be effective when it has received documents confirmingor
certifying, to the satisfaction of the Administrative Agent, compliance with
the conditions set forth in this
Section
5
or the waiver of such conditions as permitted by Section 10.1 of the Credit
Agreement. Suchdeclaration shall be final, conclusive and binding upon all
parties to the Credit Agreement for all purposes. For purposes of the
foregoing, each Lender that has signed this Amendment shall be deemed to have
consented to, approved or accepted or tobe satisfied with, each document or
other matter required hereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed FifthAmendment
Effective Date specifying its objection thereto.
Section 6.
Miscellaneous
.
6.1.
Confirmation
. The provisions of the Credit Agreement and the Guarantee and Collateral
Agreement, as amended by this Amendment,shall remain in full force and effect
following the effectiveness of this Amendment.
6.2.
Term Intercreditor Agreement
. TheLenders party hereto, by their respective signatures below, hereby
approve the form of Term Intercreditor Agreement attached as
Exhibit B
hereto and authorize and instruct the Administrative Agent to enter into the
Term IntercreditorAgreement on the Fifth Amendment Effective Date.
6.3.
Ratification and Affirmation; Representations and Warranties
. Each LoanParty hereby (a) acknowledges the terms of this Amendment; (b)
ratifies and affirms (i) its obligations under, and acknowledges, renews and
extends its continued liability under, each Loan Document to which it is a
party and agreesthat each Loan Document to which it is a party remains in full
force and effect, except as expressly amended hereby and (ii) that the Liens
created by the Loan Documents to which it is a party are valid and continuing
and secure the Obligationsin accordance with the terms thereof, in each case,
notwithstanding the amendments contained herein; (c) agrees that its guarantee
under the Guarantee and Collateral Agreement remains in full force and effect
with respect to the Obligations asamended hereby; (d) agrees that from and
after the Fifth Amendment Effective Date (i) each reference to the Credit
Agreement in the other Loan Documents shall be deemed to be a reference to the
Credit Agreement, as amended by thisAmendment, (ii) each reference to the
Guarantee and Collateral Agreement in the other Loan Documents shall be deemed
a reference to the Guarantee and Collateral Agreement, as amended by this
Amendment, and (iii) this Amendment does notconstitute a novation of the
Credit Agreement, the Guarantee and Collateral Agreement or any other Loan
Document; and (e) represents and warrants to the Lenders that as of the date
hereof, after giving effect to the terms of this Amendment:(i) all of the
representations and warranties contained in each Loan Document to which it is
a party are true and correct in all material respects, except to the extent
any such representations and warranties are stated to relate solely to
anearlier date, in which case, such representations and warranties shall have
been true and correct in all material respects on and as of such earlier date (
provided
that such materiality qualifier shall not be applicable to any representationor
warranty that is already qualified or modified by materiality in such Loan
Document) and (ii) no Default or Event of Default has occurred and is
continuing.
4
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6.4.
No Waiver; Loan Document
. The execution, delivery and effectiveness of thisAmendment shall not, except
as expressly provided herein, operate as a waiver of any right, power or
remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the
LoanDocuments. This Amendment shall for all purposes constitute a Loan
Document.
6.5.
Counterparts
. This Amendment may be executed byone or more of the parties hereto in any
number of separate counterparts, and all of such counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an
executed counterpart of a signature page of thisAmendment that is an
electronic sound, symbol, or process attached to, or associated with, a
contract or other record and adopted by a Person with the intent to sign,
authenticate or accept such contract or record (an "
ElectronicSignature
") transmitted by telecopy, emailed pdf or any other electronic means that
reproduces an image of an actual executed signature page shall be effective as
delivery of a manually executed counterpart of this Amendment. The
words"execution," "signed," "signature," "delivery," and words of like import
in or relating to this Amendment shall be deemed to include Electronic
Signatures, deliveries or the keeping of records in anyelectronic form
(including deliveries by telecopy, emailed pdf or any other electronic means
that reproduces an image of an actual executed signature page), each of which
shall be of the same legal effect, validity or enforceability as a
manuallyexecuted signature, physical delivery thereof or the use of a
paper-based recordkeeping system, as the case may be;
provided
that, without limiting the foregoing, upon the request of the Administrative
Agent, any electronic signature shall bepromptly followed by such manually
executed counterpart (in such number as may be reasonably requested by the
Administrative Agent).
6.6.
NO ORAL AGREEMENT
. THIS AMENDMENT, THE CREDIT AGREEMENT, THE GUARANTEE AND COLLATERAL AGREEMENT
AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BECONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE
PARTIES. AS OF THE DATE OF THIS AMENDMENT, THERE ARE NO ORAL AGREEMENTS
BETWEEN THE PARTIES.
6.7.
GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVERS
. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THISAMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. SECTIONS 10.12 AND 10.16 OF
THE CREDIT AGREEMENT AND SECTIONS 9.16 AND 9.17 OF THE GUARANTEE AND
COLLATERAL AGREEMENT AREINCORPORATED HEREIN BY REFERENCE
MUTATIS MUTANDIS
.
[SIGNATURES BEGIN NEXT PAGE]
5
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as ofthe date first written above.
BORROWER: CLEARWATER PAPER CORPORATION
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
GUARANTORS: CLEARWATER FIBER, LLC
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
CLEARWATER PAPER TISSUE, LLC
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
CELLU TISSUE HOLDINGS, LLC
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
CELLU TISSUE NEENAH, LLC
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
CELLU TISSUE OKLAHOMA CITY, LLC
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
-------------------------------------------------------------------------------
CLEARWATER PAPER SHELBY, LLC
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
CLEARWATER PAPER LAS VEGAS, LLC
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
CLEARWATER PAPER ELWOOD, LLC
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
MANCHESTER INDUSTRIES INC. OF VIRGINIA
By: /s/ Sherri J. Baker
Name: Sherri J. Baker
Title: Senior Vice President, Chief Financial Officer
-------------------------------------------------------------------------------
ADMINISTRATIVE AGENT AND LENDER: JPMORGAN CHASE BANK, N.A.
By: /s/ Kevin Podwika
Name: Kevin Podwika
Title: Authorized Officer
-------------------------------------------------------------------------------
LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Marc J. Breier
Name: Marc J. Breier
Title: Authorized Signatory
-------------------------------------------------------------------------------
LENDER: BANK OF AMERICA, N.A.
By: /s/ Brett German
Name: Brett German
Title: Senior Vice President
-------------------------------------------------------------------------------
LENDER: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Brian Andrews
Name: Brian Andrews
Title: Vice President
-------------------------------------------------------------------------------
LENDER: COOPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
as a Lender
By: /s/ Andre Baladi
Name: Andre Baladi
Title: Managing Director
By: /s/ Irene Stephens
Name: Irene Stephens
Title: Executive Director
-------------------------------------------------------------------------------
LENDER: KEYBANK NATIONAL ASSOCIATION
By: /s/ Paul A Taubeneck
Name: Paul A Taubeneck
Title: Senior Vice President
-------------------------------------------------------------------------------
LENDER: TD BANK, N.A.
By: /s/ Lori Hilker
Name: Lori Hilker
Title: Vice President
-------------------------------------------------------------------------------
LENDER: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Brian Andrews
Name: Brian Andrews
Title: Vice President
-------------------------------------------------------------------------------
Exhibit A
Amended Credit Agreement
[See attached]
-------------------------------------------------------------------------------
Execution Version
Exhibit A to Fifth Amendment to ABL Credit Agreement and Omnibus Amendment
ABL CREDIT AGREEMENT
among
CLEARWATER PAPERCORPORATION
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
Dated as of July 26, 2019,
JPMORGAN CHASE BANK, N.A. and WELLS FARGO BANK, NATIONAL ASSOCIATION
as Joint Lead Arrangers and Joint Bookrunners
-------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Classification of Loans and Borrowings 49
1.3 Other Definitional Provisions 49
1.5 Letter of Credit Amounts 50
1.6 Limited Condition Transactions 51
1.7 Divisions 51
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 52
2.1 Commitments 52
2.2 Procedure for Revolving Loan Borrowing 52
2.3 Protective Advances 53
2.4 [Reserved] 53
2.5 [Reserved] 53
2.6 [Reserved] 53
2.7 Repayment of Revolving Loans 53
2.8 Fees, etc. 53
2.9 Termination or Reduction of Commitments 54
2.10 Optional Prepayments 54
2.11 Mandatory Prepayment of Loans 54
2.12 Conversion and Continuation Options 55
2.13 Limitations on Term SOFR Borrowings 55
2.14 Interest Rates and Payment Dates 56
2.15 Computation of Interest and Fees 56
2.16 Alternate Rate of Interest 56
2.17 Pro Rata Treatment and Payments 58
2.18 Requirements of Law 60
2.19 Taxes 62
2.20 Indemnity 65
2.21 Change of Lending Office 66
2.22 Replacement of Lenders 66
2.23 Defaulting Lenders 66
2.24 Incremental Facilities 68
2.25 Loan Modification Offers 68
SECTION 3. LETTERS OF CREDIT 70
3.1 L/C Commitment 70
3.2 Procedure for Issuance of Letter of Credit 70
3.3 Fees and Other Charges 71
3.4 L/C Participations 71
3.5 Reimbursement Obligation of the Borrower 72
3.6 Obligations Absolute 72
3.7 Letter of Credit Payments 73
3.8 Applications 73
3.9 Replacement of an Issuing Lender 73
i
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SECTION 4. REPRESENTATIONS AND WARRANTIES 73
4.1 Financial Condition 73
4.2 No Change 74
4.3 Existence; Compliance with Law 74
4.4 Power; Authorization; Enforceable Obligations 74
4.5 No Legal Bar 74
4.6 Litigation 74
4.7 No Default 75
4.8 Ownership of Property; Liens 75
4.9 Intellectual Property 75
4.10 Taxes 75
4.11 Federal Regulations 75
4.12 Labor Matters 75
4.13 ERISA 75
4.14 Investment Company Act; Other Regulations 76
4.15 Subsidiaries; Capital Stock 76
4.16 Use of Proceeds 77
4.17 Environmental Matters 77
4.18 Accuracy of Information, etc. 77
4.19 Security Documents 77
4.20 Solvency 78
4.21 Anti-Corruption Laws, Anti-Money Laundering and Sanctions 78
4.22 Plan Assets; Prohibited Transactions 78
SECTION 5. CONDITIONS PRECEDENT 78
5.1 [Reserved] 78
5.2 Conditions to Each Extension of Credit 78
SECTION 6. AFFIRMATIVE COVENANTS 79
6.1 Financial Statements 79
6.2 Certificates; Borrowing Base; Other Information 80
6.3 Payment of Obligations 82
6.4 Maintenance of Existence; Compliance 82
6.5 Maintenance of Property; Insurance 82
6.6 Inspection of Property; Books and Records; Discussions; Appraisals; Field Examinations 82
6.7 Notices 84
6.8 Environmental Laws 84
6.9 [Reserved] 85
6.10 Additional Collateral, etc. 85
6.11 Designation of Subsidiaries 86
6.12 Deposit Account Control Agreements 87
6.13 Post-Closing Insurance Certificates 87
SECTION 7. NEGATIVE COVENANTS 87
7.1 Consolidated Fixed Charge Coverage Ratio 87
7.2 Indebtedness 87
7.3 Liens 90
7.4 Fundamental Changes 94
7.5 Disposition of Property 94
7.6 Restricted Payments 97
ii
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7.7 Investments 97
7.8 Optional Payments of Certain Debt Instruments 99
7.9 Transactions with Affiliates 100
7.10 Sales and Leasebacks 100
7.11 Swap Agreements 101
7.12 Changes in Fiscal Periods 101
7.13 Negative Pledge Clauses 101
7.14 Clauses Restricting Subsidiary Distributions 102
7.15 Lines of Business 102
7.16 Use of Proceeds 103
7.17 Restrictions on Amendments to 103
Non-ABL
Facilities
SECTION 8. EVENTS OF DEFAULT 103
SECTION 9. THE AGENTS 106
9.1 Appointment 106
9.2 Administrative Agent's Reliance, Indemnification, Etc. 108
9.3 Posting of Communications 109
9.4 The Administrative Agent Individually 111
9.5 Successor Administrative Agent 111
9.6 Acknowledgments of Lenders and Issuing Lenders 112
9.7 Collateral Matters 113
9.8 Credit Bidding 113
9.9 Certain ERISA Matters 114
9.10 Flood Insurance Laws 115
SECTION 10. MISCELLANEOUS 115
10.1 Amendments and Waivers 115
10.2 Notices 117
10.3 No Waiver; Cumulative Remedies 118
10.4 Survival of Representations and Warranties 118
10.5 Limitation of Liability; Payment of Expenses and Taxes 119
10.6 Successors and Assigns; Participations and Assignments 120
10.7 Adjustments; 124
Set-off
10.8 Counterparts; Electronic Execution 124
10.9 Severability 125
10.10 Integration 125
10.11 GOVERNING LAW 125
10.12 Submission To Jurisdiction; Waivers 126
10.13 Acknowledgments 126
10.14 Releases of Guarantees and Liens 127
10.15 Confidentiality 128
10.16 WAIVERS OF JURY TRIAL 128
10.17 USA Patriot Act 128
10.18 Intercreditor Agreement 129
10.19 Acknowledgement and Consent to 129
Bail-In
of Affected Financial Institutions
10.20 Acknowledgement Regarding Any Supported QFCs 130
iii
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SCHEDULES:
1.1A Commitments
3.01 Existing Letters of Credit
4.13 Pension Plans
4.15 Subsidiaries
4.19(a) UCC Filing Jurisdictions
7.2(e) Existing Indebtedness
7.3(f) Existing Liens
7.5(l) Scheduled Dispositions
7.7(k) Existing Investments
EXHIBITS:
A Form of Borrowing Request
B Form of Interest Election Request
C-1 Form of Officer's Certificate
C-2 New Subsidiary Officer's Certificate
D Form of Guarantee and Collateral Agreement
E Form of Assignment and Assumption
F Form of Compliance Certificate
G [Reserved]
H-1 U.S. Tax Certificate (For
Non-U.S.
Lenders that are notPartnerships for U.S. Federal Income Tax Purposes)
H-2 U.S. Tax Certificate (For
Non-U.S.
Lenders that arePartnerships for U.S. Federal Income Tax Purposes)
H-3 U.S. Tax Certificate (For
Non-U.S.
Participants that arenot Partnerships for U.S. Federal Income Tax Purposes)
H-4 U.S. Tax Certificate (For
Non-U.S.
Participants that arePartnerships for U.S. Federal Income Tax Purposes)
I-1 Form of Increased Facility Activation Notice--Incremental Revolving Commitments
I-2 Form of New Lender Supplement
I-3 Form of Maturity Date Extension Notice
J Form of Borrowing Base Certificate
K Form of Intercreditor Agreement
L Form of Solvency Certificate
-------------------------------------------------------------------------------
ABL CREDIT AGREEMENT (this "
Agreement
"), dated as of July 26, 2019among Clearwater Paper Corporation, a Delaware
corporation (the "
Borrower
"), the several banks and other financial institutions or entities from time
to time parties to this Agreement (the "
Lenders
"), JPMorgan ChaseBank, N.A., as administrative agent, and the other agents
from time to time parties hereto.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1
Defined Terms
. As used in this Agreement, the terms listed in this Section 1.1 shall have
the respective meanings set forth inthis Section 1.1.
"
2028 Notes
" means the Borrower's 4.750% senior notes due 2028 issued pursuant to the
2028Notes Indenture.
"
2028 Notes Indenture
" means the Indenture, dated as of August 18, 2020 by and among the
Borrower,as issuer, certain Subsidiaries of the Borrower party thereto as
guarantors and U.S. Bank National Association, as trustee.
"
ABLPriority Collateral
" means all Collateral other than
Non-ABL
Priority Collateral.
"
ABR
" means, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising suchBorrowing, bear interest at a rate
determined by reference to the Alternate Base Rate.
"
Acceptable Field Examination
"means a field examination conducted by the Administrative Agent or its
designee of the Accounts, Inventory and related working capital matters of the
Borrower and its Subsidiaries and of the related data processing and other
systems of the Borrowerand its Subsidiaries, the results of which shall be
satisfactory to the Administrative Agent in its Permitted Discretion.
"
Acceptable Inventory Appraisal
" means an appraisal of the Inventory of the Borrower and its Subsidiaries
from a firm (orfirms) satisfactory to the Administrative Agent, which
appraisal(s) shall be satisfactory to the Administrative Agent in its
Permitted Discretion.
"
Accepting Lenders
" has the meaning set forth in Section 2.25(a).
"
Account
" has the meaning set forth in the Guarantee and Collateral Agreement.
"
Account Debtor
" means any Person obligated on an Account.
"
Additional Permitted Amount
" has the meaning set forth in the definition of Permitted Refinancing
Indebtedness.
"
Adjusted Term SOFR Rate
" means, for any Interest Period, an interest rate per annum equal to (a) the
Term SOFR Rate forsuch Interest Period,
plus
(b) 0.10%;
provided that
if the Adjusted Term SOFR Rate as so determined would be less than the Floor,
such rate shall be deemed to be equal to the Floor for the purposes of this
Agreement.
"
Adjustment Date
" has the meaning set forth in the Applicable Pricing Grid.
-------------------------------------------------------------------------------
"
Administrative Agent
" means JPMorgan Chase Bank, N.A., together with itsaffiliates as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.
"
Affected Financial Institution
" means (a) any EEA Financial Institution or (b) any UK Financial Institution.
"
Affiliate
" means as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or isunder common control with, such Person. For
purposes of this definition, "control" of a Person means the power, directly
or indirectly, to direct or cause the direction of the management and policies
of such Person, whether by contract orotherwise.
"
Agents
" means the collective reference to the Administrative Agent and any other
agent identified on thecover page of this Agreement.
"
Aggregate Exposure
" means, with respect to any Lender at any time, an amount equal to theamount
of such Lender' Commitment then in effect or, if the Commitments have been
terminated, the amount of such Lender's Revolving Extensions of Credit then
outstanding.
"
Aggregate Exposure Percentage
" means, with respect to any Lender at any time, the ratio (expressed as a
percentage) of suchLender's Aggregate Exposure at such time to the Aggregate
Exposure of all Lenders at such time.
"
Agreement
" has themeaning set forth in the preamble hereto.
"
Alternate Base Rate
" means, for any day, a rate per annum equal to thegreatest of (a) the Prime
Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus
1
D
2
of 1% and (c) the Adjusted Term SOFR Rate fora one month Interest Period as
published two U.S. Government Securities Business Days prior to such day (or
if such day is not a U.S. Government Securities Business Day, the immediately
preceding U.S. Government Securities Business Day) plus 1%;provided that for
the purpose of this definition, the Adjusted Term SOFR Rate for any day shall
be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago
time on such day (or any amended publication time for the Term SOFR
ReferenceRate, as specified by the CME Term SOFR Administrator in the Term
SOFR Reference Rate methodology). Any change in the Alternate Base Rate due to
a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate
shall be effective from andincluding the effective date of such change in the
Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If
the Alternate Base Rate is being used as an alternate rate of interest
pursuant to Section 2.16 (for the avoidance ofdoubt, only until the Benchmark
Replacement has been determined pursuant to Section 2.16(b)), then the
Alternate Base Rate shall be the greater of clauses (a) and (b) above and
shall be determined without reference to clause(c) above. For the avoidance of
doubt, if the Alternate Base Rate as determined pursuant to the foregoing
would be less than 0%, such rate shall be deemed to be 0% for purposes of this
Agreement.
"
Anti-Corruption Laws
" means all laws, rules and regulations of any jurisdiction applicable to the
Borrower or itsSubsidiaries from time to time concerning or relating to
bribery, corruption, money-laundering, or any financial record keeping and
reporting requirements related thereto.
"
Annual Field Examination
" has the meaning set forth in Section 6.6(c).
"
Annual Inventory Appraisal
" has the meaning set forth in Section 6.6(b).
2
-------------------------------------------------------------------------------
"
Applicable Margin
" means, with respect to ABR Loans and Term SOFR Loans,the applicable rates,
subject to adjustment in accordance with the Applicable Pricing Grids (as
defined below).
"
ApplicableParties
" has the meaning set forth in Section 9.3(c).
"
Applicable Pricing Grids
" means the table set forthbelow:
Availability Applicable Margin for Applicable Margin for
ABR Loans Term SOFR Loans
e 66% of the Line Cap 0.25 % 1.25 %
<66% but e 33% of the Line Cap 0.50 % 1.50 %
<33% of the Line Cap 0.75 % 1.75 %
Average Quarterly Commitment Fee Rate
Availability
<50% 0.25 %
e50% 0.375 %
For the purposes of the Applicable Pricing Grid (a) changes in the Applicable
Margin resulting fromchanges in the average daily Availability shall (i)
become effective on the third Business Day (the "
Adjustment Date
") of each calendar month and shall remain in effect until the next change to
be effected pursuant to thisparagraph and (ii) be based on the average daily
Availability for the immediately preceding calendar month and (b) changes to
the Commitment Fee Rate shall become effective on the third Business Day of
each fiscal quarter based upon theAverage Quarterly Availability during the
most recently ended fiscal quarter and shall remain in effect until the next
change to be effected pursuant to this paragraph. If, as of any date that a
Borrowing Base Certificate is scheduled to bedelivered pursuant to Section
6.2(g), any Borrowing Base Certificate required to be delivered on or prior to
such date shall not have been delivered, then, until the Adjustment Date
occurring after the date on which all required Borrowing BaseCertificates are
delivered, the Administrative Agent, acting at the direction of the Required
Lenders, shall declare that the highest rate set forth in each column of the
Applicable Pricing Grid shall apply. Automatically, upon the occurrence
andcontinuance of an Event of Default pursuant to Section 8(f), the highest
rate set forth in each column of the Applicable Pricing Grid shall apply.
"
Applicable Reference Period
" means as of any date of determination, the most recently ended Reference
Period for whichfinancial statements with respect to each fiscal quarter
included in such Reference Period have been delivered pursuant to Section
6.1(a) or 6.1(b) (or, prior to the delivery of any such financial statements,
the Reference Period endedMarch 31, 2019).
"
Application
" means an application, in such form as the Issuing Lender may specify from
time totime, requesting the Issuing Lender to open a Letter of Credit,
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day) and the date on which such Letter of Credit is to expire
and such other information asthe Issuing Lender may request.
"
Approved Electronic Platform
" has the meaning set forth in Section 9.3(a).
"
Approved Fund
" has the meaning set forth in Section 10.6(b).
3
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"
Arranger
" means each Joint Lead Arranger and Joint Bookrunner identifiedon the cover
page of this Agreement.
"
Assignee
" has the meaning set forth in Section 10.6(b).
"
Assignment and Assumption
" means an Assignment and Assumption, substantially in the form of Exhibit E
or any other form(including electronic records generated by the use of an
electronic platform) approved by the Administrative Agent.
"
AttributableIndebtedness
" means in respect of any sale and leaseback transaction, as at the time of
determination, the present value (discounted at the implied interest rate in
such transaction compounded annually) of the total obligations of thelessee
for rental payments during the remaining term of the lease included in such
sale and leaseback transaction (including any period for which such lease has
been extended or may, at the option of the lessor, be extended). For the
avoidance ofdoubt, notwithstanding anything to the contrary contained in this
Agreement, obligations for rental payments with respect to a lease arising in
connection with a Tax Incentive Transaction shall not constitute Attributable
Indebtedness.
"
Augusta Acquisition Agreement
" means that certain Asset Purchase Agreement dated as of February 20, 2024,
by andbetween the Borrower and Graphic Packaging International, LLC, as
amended, restated, supplemented or otherwise modified from time to time.
"
Augusta Mill Acquisition
" means the acquisition by the Borrower, directly or indirectly, of assets
from Graphic PackagingInternational, LLC pursuant to the Augusta Acquisition
Agreement and the other Transaction Agreements (as defined in the Augusta
Acquisition Agreement).
"
Availability
" means at any time, an amount equal to (a) the Line Cap
minus
(b) the Total RevolvingExtensions of Credit then outstanding (calculated, with
respect to any Defaulting Lender, as if such Defaulting Lender had funded its
Revolving Percentage of all outstanding Revolving Loans).
"
Available Commitment
" means as to any Revolving Lender at any time, an amount equal to the excess,
if any, of (a) suchLender's Commitment then in effect over (b) such Lender's
Revolving Extensions of Credit then outstanding.
"
Available Tenor
" means, as of any date of determination and with respect to the then-current
Benchmark, as applicable, anytenor for such Benchmark (or component thereof)
or payment period for interest calculated with reference to such Benchmark (or
component thereof), as applicable, that is or may be used for determining the
length of an Interest Period for any termrate or otherwise, for determining
any frequency of making payments of interest calculated pursuant to this
Agreement as of such date and not including, for the avoidance of doubt, any
tenor for such Benchmark that is then-removed from thedefinition of "Interest
Period" pursuant to clause (e) of
Section
2.16
.
"
AverageQuarterly Availability
" means, for any fiscal quarter of the Borrower, an amount equal to the
average daily Availability during such fiscal quarter, as determined by the
Administrative Agent's system of records;
provided
, thatin order to determine Availability on any day for purposes of this
definition, the Borrower's Borrowing Base for such day shall be determined by
reference to the most recent Borrowing Base Certificate delivered pursuant to
Section 6.2(g)to the Administrative Agent as of such day.
"
Bail-In
Action
" means the exerciseof any Write-Down and Conversion Powers by the applicable
Resolution Authority in respect of any liability of an Affected Financial
Institution.
4
-------------------------------------------------------------------------------
"
Bail-In
Legislation
" means(a) with respect to any EEA Member Country implementing Article 55 of
Directive 2014/59/EU of the European Parliament and of the Council of the
European Union, the implementing law, regulation rule or requirement for such
EEA Member Countryfrom time to time which is described in the EU
Bail-In
Legislation Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and anyother
law, regulation or rule applicable in the United Kingdom relating to the
resolution of unsound or failing banks, investment firms or other financial
institutions or their affiliates (other than through liquidation,
administration or otherinsolvency proceedings).
"
Bank Products
" means any of the following bank: (a) commercial credit cards,(b) stored
value cards, (c) purchasing cards and (d) treasury, depositary or cash
management services (including controlled disbursement, automated
clearinghouse transactions, return items, overdrafts, supply chain finance
servicesrelated to accounts payable and interstate depository network
services) or any similar transaction.
"
Banking Services
"means Bank Products provided to any Group Member by any Lender or any of its
Affiliates.
"
Banking Services Obligations
"means with respect to the Group Members, any and all obligations of the Group
Members, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereofand substitutions therefor) in connection with Banking
Services.
"
Banking Services Reserves
" means all Reserves that theAdministrative Agent from time to time
establishes in its Permitted Discretion for Banking Services then provided or
outstanding.
"
Bankruptcy Code
" means Title 11 of the United States Code (11 U.S.C. (s) 101 et seq.), as now
and hereafter in effect, orany successor statute.
"
Bankruptcy Event
" means with respect to any Person, such Person becomes the subject of
abankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or
similar Person charged with the reorganization or liquidation of its business
appointed for it, or,in the good faith determination of the Administrative
Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment,
provided
that a Bankruptcy Event shall notresult solely by virtue of any ownership
interest, or the acquisition of any ownership interest, in such Person by a
Governmental Authority or instrumentality thereof, provided, further, that
such ownership interest does not result in or providesuch Person with immunity
from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such
Person (or such Governmental Authority or instrumentality) to reject,repudiate,
disavow or disaffirm any contracts or agreements made by such Person.
"
Benchmark
" means, initially, withrespect to any Term Benchmark Loan, the Term SOFR Rate;
provided
that if a Benchmark Transition Event, and the related Benchmark Replacement
Date have occurred with respect to the Term SOFR Rate, as applicable, or the
then-current Benchmark,then "Benchmark" means the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced such
prior benchmark rate pursuant to clause (b) of
Section
2.16
.
5
-------------------------------------------------------------------------------
"
Benchmark Replacement
" means, for any Available Tenor:
the sum of: (a) the alternate benchmark rate that has been selected by the
Administrative Agent and the Borrower as the replacement forthe then-current
Benchmark for the applicable Corresponding Tenor giving due consideration to
(i) any selection or recommendation of a replacement benchmark rate or the
mechanism for determining such a rate by the Relevant Governmental Body or(ii)
any evolving or then-prevailing market convention for determining a benchmark
rate as a replacement for the then-current Benchmark for dollar-denominated
syndicated credit facilities at such time in the United States and (b)
therelated Benchmark Replacement Adjustment;
If the Benchmark Replacement as determined pursuant to the above would be less
than the Floor,the Benchmark Replacement will be deemed to be the Floor for
the purposes of this Agreement and the other Loan Documents.
"
Benchmark Replacement Adjustment
" means, with respect to any replacement of the then-current Benchmark with an
UnadjustedBenchmark Replacement for any applicable Interest Period and
Available Tenor for any setting of such Unadjusted Benchmark Replacement, the
spread adjustment, or method for calculating or determining such spread
adjustment, (which may be a positiveor negative value or zero) that has been
selected by the Administrative Agent and the Borrower for the applicable
Corresponding Tenor giving due consideration to (i) any selection or
recommendation of a spread adjustment, or method forcalculating or determining
such spread adjustment, for the replacement of such Benchmark with the
applicable Unadjusted Benchmark Replacement by the relevant Governmental
Authority on the applicable Benchmark Replacement Date and/or (ii) anyevolving
or then-prevailing market convention for determining a spread adjustment, or
method for calculating or determining such spread adjustment, for the
replacement of such Benchmark with the applicable Unadjusted Benchmark
Replacement fordollar-denominated syndicated credit facilities at such time.
"
Benchmark Replacement Conforming Changes
" means, withrespect to any Benchmark Replacement and/or any Term Benchmark
Loan, any technical, administrative or operational changes (including changes
to the definition of "Alternate Base Rate," the definition of "Business Day,"
thedefinition of "U.S. Government Securities Business Day," the definition of
"Interest Period," timing and frequency of determining rates and making
payments of interest, timing of borrowing requests or prepayment, conversion
orcontinuation notices, length of lookback periods, the applicability of
breakage provisions, and other technical, administrative or operational
matters) that the Administrative Agent decides (in consultation with the
Borrower) may be appropriate toreflect the adoption and implementation of such
Benchmark and to permit the administration thereof by the Administrative Agent
in a manner substantially consistent with market practice (or, if the
Administrative Agent decides that adoption of anyportion of such market
practice is not administratively feasible or if the Administrative Agent
determines that no market practice for the administration of such Benchmark
exists, in such other manner of administration as the Administrative
Agentdecides in consultation with the Borrower is reasonably necessary in
connection with the administration of this Agreement and the other Loan
Documents).
"
Benchmark Replacement Date
" means, with respect to any Benchmark, the earliest to occur of the following
events with respectto such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of "Benchmark
Transition Event," thelater of (a) the date of the public statement or
publication of information referenced therein and (b) the date on which the
administrator of such Benchmark (or the published component used in the
calculation thereof) permanently orindefinitely ceases to provide all
Available Tenors of such Benchmark (or such component thereof); or
6
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(2) in the case of clause (3) of the definition of "Benchmark TransitionEvent,"
the first date on which such Benchmark (or the published component used in the
calculation thereof) has been determined and announced by the regulatory
supervisor for the administrator of such Benchmark (or such component thereof)
to beno longer representative; provided, that such
non-representativeness
will be determined by reference to the most recent statement or publication
referenced in such clause (c) and even if any AvailableTenor of such Benchmark
(or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if theevent giving rise to the Benchmark
Replacement Date occurs on the same day as, but earlier than, the Reference
Time in respect of any determination, the Benchmark Replacement Date will be
deemed to have occurred prior to the Reference Time for suchdetermination and
(ii) the "Benchmark Replacement Date" will be deemed to have occurred in the
case of clause (1) or (2) with respect to any Benchmark upon the occurrence of
the applicable event or events set forth therein withrespect to all
then-current Available Tenors of such Benchmark (or the published component
used in the calculation thereof).
"
Benchmark Transition Event
" means, with respect to any Benchmark, the occurrence of one or more of the
following events withrespect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the
administrator of suchBenchmark (or the published component used in the
calculation thereof) announcing that such administrator has ceased or will
cease to provide all Available Tenors of such Benchmark (or such component
thereof), permanently or indefinitely, providedthat, at the time of such
statement or publication, there is no successor administrator that will
continue to provide any Available Tenor of such Benchmark (or such component
thereof);
(2) a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the publishedcomponent
used in the calculation thereof), the Federal Reserve Board, the NYFRB, the
CME Term SOFR Administrator, an insolvency official with jurisdiction over the
administrator for such Benchmark (or such component), a resolution authority
withjurisdiction over the administrator for such Benchmark (or such component)
or a court or an entity with similar insolvency or resolution authority over
the administrator for such Benchmark (or such component), in each case, which
states that theadministrator of such Benchmark (or such component) has ceased
or will cease to provide all Available Tenors of such Benchmark (or such
component thereof) permanently or indefinitely;
provided
that, at the time of such statement orpublication, there is no successor
administrator that will continue to provide any Available Tenor of such
Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory
supervisor for the administrator of such Benchmark (or the publishedcomponent
used in the calculation thereof) announcing that all Available Tenors of such
Benchmark (or such component thereof) are no longer, or as of a specified
future date will no longer be, representative.
For the avoidance of doubt, a "Benchmark Transition Event" will be deemed to
have occurred with respect to any Benchmark if a publicstatement or
publication of information set forth above has occurred with respect to each
then-current Available Tenor of such Benchmark (or the published component
used in the calculation thereof).
"
Benchmark Unavailability Period
" means, with respect to any Benchmark, the period (if any) (x) beginning at
the timethat a Benchmark Replacement Date pursuant to clauses (1) or (2) of
that definition has occurred if, at such time, no Benchmark Replacement has
replaced such then-current Benchmark for all purposes hereunder and under any
Loan Document inaccordance with
Section
2.16
and (y) ending at the time that a Benchmark Replacement has replaced such
then-current Benchmark for all purposes hereunder and under any Loan Document
in accordance with
Section
2.16
.
7
-------------------------------------------------------------------------------
"
Benefit Plan
" means any of (a) an "employee benefit plan"(as defined in Section 3(3) of
ERISA) that is subject to Title I of ERISA, (b) a "plan" as defined in Section
4975 of the Code to which Section 4975 of the Code applies, and (c) any Person
whose assets include (forpurposes of the Plan Asset Regulations or otherwise
for purposes of Title I of ERISA or Section 4975 of the Code) the assets of
any such "employee benefit plan" or "plan". "
Benefitted Lender
" has the meaningset forth in Section 10.7(a).
"
BHC Act Affiliate
" of a party means an "affiliate' (as such term isdefined under, and
interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
"
Borrower
" has the meaning setforth in the preamble hereto.
"
Borrowing
" means Revolving Loans of the same Facility and Type, made, converted
orcontinued on the same date and, in the case of Term SOFR Loans, as to which
a single Interest Period is in effect.
"
BorrowingBase
" means at any time, the sum of:
(a) (i) 85% of the book value of the Loan Parties'
Non-Investment
Grade Eligible Accounts at such time and (ii) 90% of the book value of the
Loan Parties' Investment Grade Eligible Accounts,
plus
(b) the lesser of (i) the amount equal to 85%
multiplied by
the Net Orderly Liquidation Value percentage identified in the mostrecent
Inventory appraisal ordered by the Administrative Agent
multiplied by
the book value of the Loan Parties' Eligible Finished Goods and (ii) 70%
multiplied by
the cost of the Loan Parties' Eligible Finished Goods valuedon a
first-in-first-out
basis,
plus
(c) the lesser of (i) the amount equal to 85%
multiplied by
the Net Orderly Liquidation Value percentage identified in the mostrecent
Inventory appraisal ordered by the Administrative Agent
multiplied by
the book value of the Loan Parties' Eligible Raw Materials and (ii) 60%
multiplied by
the cost of the Loan Parties' Eligible Raw Materials valued ona
first-in-first-out
basis,
plus
(d) without duplication of Accounts or Inventory included in the Borrowing
Base pursuant to the foregoing clauses (a) - (c), for a periodof 90 days after
the acquisition of any Accounts or Inventory that would otherwise constitute
Eligible Accounts or Eligible Inventory pursuant to a Permitted Acquisition
but prior to the completion of a field examination and Inventory appraisal
withrespect to such Accounts or Inventory (or such longer period of time as
the Administrative Agent may agree in its Permitted Discretion, not to exceed
90 additional days without the consent of the Required Lenders), the lesser of
(i) the sum of(x) 70% of the book value of Eligible Accounts acquired by the
Loan Parties pursuant to such Permitted Acquisition and (y) 50% of the book
value of the Eligible Inventory and Eligible Raw Materials acquired by the
Loan Parties pursuant to suchPermitted Acquisition (it being understood and
agreed that no Collateral Access Agreement, nor any appraisal or field exam
shall be required with respect to any such Eligible Accounts or Eligible
Inventory included in the Borrowing Base pursuant tothis clause (d)) and (ii)
$50,000,000;
minus
(e) Reserves;
provided
that in determining the Net Orderly Liquidation Value with respect to
Inventory, the Administrative Agent may determine such value on ablended,
product-line or other basis as it determines in its Permitted Discretion.
8
-------------------------------------------------------------------------------
The Administrative Agent may, in its Permitted Discretion reduce the advance
rates set forthabove or (following (to the extent practicable) reasonable
prior notice to, and consultation with, the Borrower) adjust Reserves or
reduce one or more of the other elements used in computing the Borrowing Base,
with any such changes to be effectivethree days after delivery of notice
thereof to the Borrower and the Lenders;
provided
that if consultation with the Borrower and/or notice to the Borrower and the
Lenders is not practicable or if failure to implement any such change within
ashorter time period would, in the good faith judgment of the Administrative
Agent, reasonably be expected to result in a Material Adverse Effect or
materially and adversely affect the Collateral or the rights of the Lenders
under the Loan Documents,such change may be implemented within a shorter time
as determined by the Administrative Agent in its Permitted Discretion. The
Borrowing Base at any time shall be determined by reference to the most recent
Borrowing Base Certificate delivered tothe Administrative Agent pursuant to
Section 6.2(g) of this Agreement.
"
Borrowing Base Certificate
" means acertificate, signed and certified as accurate and complete by a
Responsible Officer of the Borrower, in substantially the form of Exhibit J or
another form which is acceptable to the Administrative Agent in its sole
discretion.
"
Borrowing Base Eligible Facilities
" means warehouses owned or leased by Loan Parties that are located in the
United States;
provided
that on and after the date that is 60 days after the Closing Date, no
warehouse leased by a Loan Party shall be considered a Borrowing Base Eligible
Facility unless the Administrative Agent has received a Collateral Access
Agreementin respect thereof that continues to be in effect or a Rent Reserve
has been taken in respect thereof.
"
Borrowing Date
"means any Business Day specified by the Borrower as a date on which the
Borrower requests the relevant Lenders to make Loans hereunder.
"
Borrowing Request
" means a request by the Borrower for a Revolving Borrowing in accordance with
Section 2.2, whichshall be substantially in the form of Exhibit A or any other
form approved by the Administrative Agent.
"
Budget
" has themeaning set forth in Section 6.2(c).
"
Business Day
" means, any day (other than a Saturday or a Sunday) on whichbanks are open
for business in New York City; provided that, in addition to the foregoing, a
Business Day shall be in relation to Loans referencing the Adjusted Term SOFR
Rate and any interest rate settings, fundings, disbursements, settlements
orpayments of any such Loans referencing the Adjusted Term SOFR Rate or any
other dealings of such Loans referencing the Adjusted Term SOFR Rate, any such
day that is only a U.S. Government Securities Business Day.
"
Capital Expenditures
" means for any period, with respect to any Person, the aggregate of all
expenditures by such Person andits Restricted Subsidiaries for the acquisition
or leasing (pursuant to a capital lease) of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs and
improvements during such period) that is required to becapitalized under GAAP
on a consolidated balance sheet of such Person and its Restricted Subsidiaries.
"
Capital LeaseObligations
" means as to any Person, the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations
arerequired to be classified and accounted for as capital leases or financing
leases on a balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amountthereof at such time determined in accordance with GAAP;
provided
, that any lease (or other arrangement) of such Person
9
-------------------------------------------------------------------------------
that is or would have been treated as an operating lease as determined in
accordance with GAAP immediately prior to the issuance of the Accounting
Standards Update
2016-02,
Leases (Topic 842) by the Financial Accounting Standards Board shall not be
treated as a Capital Lease Obligation under this Agreement and the other Loan
Documents, whether or not such obligationswere in effect as of the date such
update was issued and regardless of whether GAAP requires such obligations to
be treated as capitalized lease obligations in the financial statements of
such Person.
"
Capital Stock
" means any and all shares, interests, participations or other equivalents
(however designated) of capitalstock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and any and all
warrants, rights or options to purchase any of the foregoing, but excluding
any debt securities convertible into any of theforegoing.
"
Cash Equivalents
" means (a) marketable direct obligations issued by, or unconditionally
guaranteed by,the United States Government or issued by any agency thereof and
backed by the full faith and credit of the United States, in each case
maturing within two years from the date of acquisition; (b) certificates of
deposit, time deposits,eurodollar time deposits or overnight bank deposits
having maturities of six months or less from the date of acquisition issued by
any Lender or by any commercial bank organized under the laws of the United
States or any state thereof havingcombined capital and surplus of not less
than $250,000,000; (c) commercial paper of an issuer rated at least
A-2
by S&P or
P-2
by Moody's, or carrying anequivalent rating by a nationally recognized rating
agency, if both of the two named rating agencies cease publishing ratings of
commercial paper issuers generally, and maturing within nine months from the
date of acquisition; (d) repurchaseobligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this definition,
having a term of not more than 30 days, with respect to securities issued or
fully guaranteed or insured by the United Statesgovernment; (e) securities
with maturities of two years or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States,
by any political subdivision or taxing authority of any suchstate,
commonwealth or territory or by any foreign government, the securities of
which state, commonwealth, territory, political subdivision, taxing authority
or foreign government (as the case may be) are rated at least A by S&P or A
byMoody's; (f) securities with maturities of six months or less from the date
of acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this
definition;(g) money market mutual or similar funds that invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition; or (h) money market funds that (i) comply with the criteria set
forth in SECRule
2a-7
under the Investment Company Act of 1940, as amended, (ii) are rated AAA by
S&P and Aaa by Moody's and (iii) have portfolio assets of at least
$5,000,000,000.
"
CFC
" means (a) each Person that is a "controlled foreign corporation" for
purposes of the Code and(b) each Subsidiary of any such Person.
"
CFC Holding Company
" means each Domestic Subsidiary substantially all ofthe assets of which
consist of Capital Stock of one or more (a) CFCs or (b) Persons described in
this definition.
"
Change of Control
" means (a) any "person" or "group" (as such terms are used in Sections 13(d)
and14(d) of the Exchange Act, but excluding any employee benefit plan of such
person or its Subsidiaries, and any person or entity acting in its capacity as
trustee, agent or other fiduciary or administrator of any such plan) becomes
the"beneficial owner" (as defined in Rules
13d-3
and
13d-5
under the Exchange Act, except that a "person" or "group" shall be deemed to
have"beneficial ownership" of all Capital Stock that such "person" or "group"
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time (such right, an "optionright")), directly or
indirectly, of more than 40% of the Capital Stock of the Borrower entitled to
vote in the election of members of the board of directors (or equivalent
governing body) of the Borrower or (b) the occurrence of any"change in
control" (or similar event, however denominated) with respect to the Borrower
under and as defined in any indenture or other agreement or instrument
evidencing or governing the rights of the holders of any Material
Indebtednessof the Borrower or any of its Restricted Subsidiaries.
10
-------------------------------------------------------------------------------
"
Closing Date
" means July 26, 2019.
"
CME Term SOFR Administrator
" means CME Group Benchmark Administration Limited as administrator of the
forward-looking termSecured Overnight Financing Rate (SOFR) (or a successor
administrator).
"
Code
" means the Internal Revenue Code of 1986,as amended.
"
Collateral
" means all property of the Loan Parties, now owned or hereafter acquired,
upon which a Lien ispurported to be created by any Security Document.
"
Collateral Access Agreement
" means any landlord waiver or otheragreement, in form and substance
reasonably satisfactory to the Administrative Agent, between the Administrative
Agent and any third party (including any bailee, consignee, customs broker, or
other similar Person) in possession of any Collateral orany landlord of any
real property where any Collateral is located, as such landlord waiver or
other agreement may be amended, restated, or otherwise modified from time to
time.
"
Collection Account
" means individually and collectively, each "Collection Account" referred to
in the Guaranteeand Collateral Agreement.
"
Commercial Bank Term Loan Facility
" means the commercial bank term loan credit facilitygoverned by the Existing
Non-ABL
Credit Agreement, and for the avoidance of doubt, shall not include or be
deemed to include the Farm Credit Term Loan Facility or the Term Revolver
Facility.
"
Commitment
" means as to any Lender, the obligation of such Lender, if any, to make
Revolving Loans and participate inLetters of Credit and Protective Advances in
an aggregate principal and/or face amount not to exceed the amount set forth
under the heading "Commitment" opposite such Lender's name on Schedule 1.1A or
in the Assignment and Assumptionor Increased Facility Activation Notice
pursuant to which such Lender became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof.
"
Commitment Fee Rate
" means, initially 0.375% per annum and, thereafter, subject to adjustment
based on Average QuarterlyAvailability in accordance with the Applicable
Pricing Grids.
"
Commodity Exchange Act
" means the Commodity Exchange Act(7 U.S.C. (s) 1 et seq.), as amended from
time to time, and any successor statute.
"
Communications
" means,collectively, any notice, demand, communication, information, document
or other material provided by or on behalf of any Loan Party pursuant to any
Loan Document or the transactions contemplated therein which is distributed by
the AdministrativeAgent, any Lender or any Issuing Lender by means of
electronic communications pursuant to this Section, including through an
Approved Electronic Platform.
"
Compliance Certificate
" means a certificate duly executed by a Responsible Officer substantially in
the form of Exhibit F.
11
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"
Connection Income Taxes
" means Other Connection Taxes that are imposed onor measured by net income
(however denominated) or that are franchise Taxes or branch profits Taxes.
"
ConsolidatedEBITDA
" means for any period, Consolidated Net Income for such period
plus
, without duplication and to the extent reflected as a charge in the statement
of such Consolidated Net Income for such period, the sum of:
income and franchise tax expense,
interest expense (including interest expense attributable to Capital Lease
Obligations and all net payment obligations pursuant to SwapAgreements),
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with all
Indebtedness permitted hereunder,
depreciation and amortization expense,
non-cash
charges, losses, expenses, accruals and provisions, including stock-based
compensation orawards and sale of assets not in the ordinary course of
business (but excluding any such
non-cash
charge to the extent that it represents an accrual or reserve for cash
expenses in any future period),
amortization of intangibles (including, but not limited to, impairment of
goodwill) and organization costs,
any extraordinary, unusual or
non-recurring
expenses or losses,
any fees and expenses incurred during such period in connection with any
Investment (including any Permitted Acquisition), Disposition,issuance of all
Indebtedness or Capital Stock, or amendment or modification of any debt
instrument, in each case permitted under this Agreement, including (i) any
such transactions undertaken but not completed and any transactions
consummatedprior to the Closing Date and (ii) any financial advisory fees,
accounting fees, legal fees and other similar advisory and consulting fees, in
each case paid in cash during such period (collectively, "
Advisory Fees
"),
any fees and expenses incurred in connection with the Transactions, including
Advisory Fees and (solely for purposes of this clause (h)) cashcharges in
respect of strategic market reviews, stay or
sign-on
bonuses, integration-related bonuses, restructuring, consolidation, severance
or discontinuance of any portion of operations, employees and/ormanagement,
the amount of
"run-rate"
cost savings, operating expense reductions,operating improvements and
synergies that are reasonably identifiable, factually supportable and
projected by the Borrower in good faith to be realized as a result of mergers
and other business combinations, Permitted Acquisitions, divestitures,insourcing
initiatives, cost savings initiatives, plant consolidations, openings and
closings, product rationalization and other similar initiatives taken or
initiated before, on or after the Closing Date, in each case to the extent not
prohibitedby this Agreement (collectively, "
Initiatives
") (calculated on a pro forma basis as though such cost savings, operating
expense reductions, operating improvements and synergies had been realized on
the first day of the relevantReference Period), net of the amount of actual
benefits realized in respect thereof;
provided
that (i) actions in respect of such cost-savings, operating expense
reductions, operating improvements and synergies have been, or will be,taken
within 24 months of the applicable Initiative, (ii) no cost savings, operating
expense reductions, operating improvements or synergies shall be added
pursuant to this clause (i) to the extent duplicative of any expenses or
chargesotherwise added to (or excluded from) Consolidated EBITDA, whether
through a pro forma adjustment or otherwise, for such period, (iii) projected
amounts (and not yet realized) may no longer be added in
12
-------------------------------------------------------------------------------
calculating Consolidated EBITDA pursuant to this clause (i) to the extent
occurring more than eight full fiscal quarters after the applicable
Initiative, (iv) the Borrower must deliverto the Administrative Agent (A) a
certificate of a Responsible Officer setting forth such estimated
cost-savings, operating expense reductions, operating improvements and
synergies and (B) information and calculations supporting inreasonable detail
such estimated cost savings, operating expense reductions, operating
improvements and synergies and (v) with respect to any Reference Period, the
aggregate amount added back in the calculation of Consolidated EBITDA for
suchReference Period pursuant to this clause (i) and clause (k) below shall
not exceed 25% of Consolidated EBITDA (calculated prior to giving effect to any
add-backs
pursuant to this clause (i) andclause (k) below),
non-recurring
cash expenses recognized for restructuring costs,integration costs and
business optimization expenses in connection with any Initiative,
recurring cash charges from discontinuedoperations;
provided
that, with respect to any Reference Period, the aggregate amount added back in
the calculation of Consolidated EBITDA for such Reference Period pursuant to
this clause (k) and clause (i) above shall not exceed25% of Consolidated
EBITDA (calculated prior to giving effect to any
add-backs
pursuant to this clause (k) and clause (i) above),
any
one-time
charges related to a Material Pension Event (including for the avoidance of
doubt anysuch charges in the nature of a
true-up
taken in a subsequent quarter),
minus,
(x) to the extent included in the statement of such Consolidated Net Income
for such period, the sum of (i) interest income,(ii) any extraordinary,
unusual or
non-recurring
income or gains (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, gainson
the sales of assets outside of the ordinary course of business), (iii) income
tax credits (to the extent not netted from income tax expense), (iv) any other
non-cash
income (other than normal accruals inthe ordinary course of business for
non-cash
income that represents an accrual for cash income in a future period) and (v)
all net gains pursuant to Swap Agreements; and
(y) any cash payments made during such period in respect of items described in
clause (d) above subsequent to the fiscal quarter in whichthe relevant
non-cash
expenses or losses were reflected as a charge in the statement of Consolidated
Net Income, all as determined on a consolidated basis. For the purposes of
calculating Consolidated EBITDAfor any Reference Period pursuant to any
determination of the Consolidated First Lien Leverage Ratio, Consolidated
Secured Leverage Ratio or Consolidated Leverage Ratio, (i) if at any time
during such Reference Period the Borrower or anyRestricted Subsidiary shall
have made any Material Disposition, the Consolidated EBITDA for such Reference
Period shall be reduced by an amount equal to the Consolidated EBITDA (if
positive) attributable to the property that is the subject of suchMaterial
Disposition for such Reference Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Reference
Period and (ii) if during such Reference Period the Borrower or any
RestrictedSubsidiary shall have made a Permitted Acquisition, Consolidated
EBITDA for such Reference Period shall be calculated after giving
pro
forma
effect thereto as if such Permitted Acquisition occurred on the first day of
such ReferencePeriod.
"
Consolidated First Lien Debt
" means at any date, Consolidated Total Debt at such date that is secured by
Lienson the Collateral that do not rank junior to the Liens on the Collateral
securing the Revolving Loans (it being understood that any Consolidated Total
Debt that is secured by Liens on all or a portion of the Collateral that are
senior to, or paripassu with, the Liens on such Collateral securing the
Revolving Loans shall be considered Consolidated First Lien Debt).
13
-------------------------------------------------------------------------------
"
Consolidated First Lien Leverage Ratio
" means as at the last day of anyReference Period, the ratio of (a)(i)
Consolidated First Lien Debt on such day less (ii) the aggregate Unrestricted
Cash of the Group Members on such day to (b) Consolidated EBITDA for such
period.
. "
Consolidated Fixed
Charge Coverage Ratio
" means for any period,
the ratio of(a)
Consolidated EBITDA
for such period
less
the aggregate amount actually paid by the Borrower and its Restricted
Subsidiaries during such period on account of Capital Expenditures (excluding the
principal amount of Indebtedness (otherthan Revolving Loans) incurred in connection
with such expenditures) to (b) Consolidated Fixed Charges for such period.
"
Consolidated Fixed Charges
" means for any period, the sum (without duplication) of (a) Consolidated
Interest Expensefor such period, (b) scheduled principal payments made during
such period on account of principal of Indebtedness of the Borrower or any
Restricted Subsidiary (excluding, for the avoidance of doubt, (i) mandatory
prepayments of any kind onaccount thereof and (ii) the payment in full of any
remaining outstanding principal amount of such Indebtedness on the scheduled
maturity date thereof to the extent refinanced with the proceeds of
Indebtedness on such scheduled maturity date),(c) payments for taxes made in
cash during such period, (d) Restricted Payments made in cash during such
period, (e) Capital Lease Obligation payments and (f) cash contributions to
any Plan, all calculated for the Borrower and itsRestricted Subsidiaries on a
consolidated basis and, to the extent applicable, in accordance with GAAP.
"
Consolidated InterestExpense
" means for any period, total cash interest expense (including imputed
interest expense attributable to Capital Lease Obligations) of the Borrower
and its Restricted Subsidiaries for such period with respect to all
outstandingIndebtedness of the Borrower and its Restricted Subsidiaries
(including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and net costs
under Swap Agreements inrespect of interest rates to the extent such net costs
are allocable to such period in accordance with GAAP).
"
ConsolidatedLeverage Ratio
" means as at the last day of any Reference Period, the ratio of (a)(i)
Consolidated Total Debt on such day less (ii) the aggregate Unrestricted Cash
of the Group Members on such day to (b) Consolidated EBITDA forsuch period.
"
Consolidated Net Income
" means for any period, the consolidated net income (or loss) of the Borrower
andits Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP; provided that there shall be excluded:
(a) theincome (or deficit) of any Person accrued prior to the date it becomes
a Restricted Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Restricted Subsidiaries, except to the extent
calculated on a Pro FormaBasis;
(b) the income (or deficit) of any Person (other than a Restricted Subsidiary
of the Borrower) in which the Borrower or any of itsRestricted Subsidiaries
has an ownership interest, except to the extent that any such income is
actually received by the Borrower or such Restricted Subsidiary in the form of
dividends or similar distributions;
(c) the undistributed earnings of any Restricted Subsidiary of the Borrower to
the extent that the declaration or payment of dividends orsimilar
distributions by such Restricted Subsidiary is not at the time permitted by
the terms of any Contractual Obligation (other than under any Loan Document)
or Requirement of Law applicable to such Restricted Subsidiary;
14
-------------------------------------------------------------------------------
(d) any income (or loss) for such period attributable to the early
extinguishment ofIndebtedness or Swap Obligations;
(e) the cumulative effect of a change in accounting principles and changes as
a result of the adoptionor modification of accounting policies during such
period; and
(f) all net
after-tax
gains,losses, expenses and charges attributable to business dispositions and
asset dispositions, including the sale or other disposition of any Capital
Stock of any Person, other than in the ordinary course of business.
"
Consolidated Net Tangible Assets
" means, with respect to any specified Person as of any date of determination,
the sum ofthe amounts that would appear on a consolidated balance sheet of
such Person and its consolidated Restricted Subsidiaries as the total assets
(less accumulated depreciation and amortization, allowances for doubtful
receivables, other applicablereserves and other properly deductible items) of
such Person and its Restricted Subsidiaries, after giving effect to purchase
accounting and after deducting therefrom Consolidated Current Liabilities and,
to the extent otherwise included, theamounts of (without duplication):
1. the excess of cost over fair market value of assets or businesses acquired;
2. any revaluation or other
write-up
in book value of assets subsequent to the last dayof the fiscal quarter of
such Person immediately preceding the Closing Date as a result of a change in
the method of valuation in accordance with GAAP;
3. unamortized debt discount and expenses and other unamortized deferred
charges, goodwill, patents, trademarks, service marks,trade names, copyrights,
licenses, organization or developmental expenses and other intangible items;
4. minorityinterests in consolidated Subsidiaries held by Persons other than
the specified Person or any Restricted Subsidiary;
5.treasury stock;
6. cash or securities set aside and held in a sinking or other analogous fund
established for the purposeof redemption or other retirement of Capital Stock
to the extent such obligation is not reflected in Consolidated Current
Liabilities; and
7. Investments in and assets of Unrestricted Subsidiaries.
"
Consolidated Secured Debt
" means at any date, Consolidated Total Debt at such date that is secured by a
Lien on any propertyof any Group Member.
"
Consolidated Secured Leverage Ratio
" means as at the last day of any Reference Period, the ratioof (a)(i)
Consolidated Secured Debt on such day less (ii) the aggregate Unrestricted
Cash of the Group Members on such day to (b) Consolidated EBITDA for such
period.
"
Consolidated Total Assets
" means at any date of determination, the total assets, in each case reflected
on the consolidatedbalance sheet of the Borrower and its Restricted
Subsidiaries as at the end of the most recently ended fiscal quarter of the
Borrower for which a balance sheet is available, determined in accordance with
GAAP (and, in the case of any determinationrelated to the incurrence of
Indebtedness or Liens or any Investment, on a
pro forma
basis including any property or assets being acquired in connection therewith).
15
-------------------------------------------------------------------------------
"
Consolidated Total Debt
" means at any date (without duplication), allCapital Lease Obligations,
purchase money Indebtedness, Indebtedness for borrowed money and letters of
credit (but only to the extent drawn and not reimbursed), in each case of the
Borrower and its Restricted Subsidiaries at such date, determined ona
consolidated basis in accordance with GAAP.
"
Contractual Obligation
" means as to any Person, any provision of anysecurity issued by such Person
or of any agreement, instrument or other undertaking to which such Person is a
party or by which it or any of its property is bound.
"
Corresponding Tenor
" with respect to any Available Tenor means, as applicable, either a tenor
(including overnight) or aninterest payment period having approximately the
same length (disregarding business day adjustment) as such Available Tenor.
"
Covered Entity
" means any of the following:
1. a "covered entity" as that term is defined in, and interpreted in
accordance with, 12 C.F.R. (s) 252.82(b);
a "covered bank" as that term is defined in, and interpreted in accordance
with, 12 C.F.R. (s) 47.3(b); or
a "covered FSI" as that term is defined in, and interpreted in accordance
with, 12 C.F.R. (s) 382.2(b).
"
Covered Party
" has the meaning set forth in Section 10.20.
"
Credit Party
" means the Administrative Agent, the Issuing Lender or any other Lender and,
for the purposes ofSection 10.13 only, any other Agent and any Arranger.
"
Default
" means any of the events specified inSection 8, whether or not any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"
DefaultRight
" has the meaning assigned to that term in, and shall be interpreted in
accordance with, 12 C.F.R. (s)(s) 252.81, 47.2 or 382.1, as applicable.
"
Defaulting Lender
" means any Lender that (a) has failed, within two Business Days of the date
required to be funded orpaid, to (i) fund any portion of its Loans, (ii) fund
any portion of its participations in Letters of Credit or Protective Advances
or (iii) pay over to any Credit Party any other amount required to be paid by
it hereunder, unless, inthe case of clause (i) above, such Lender notifies the
Administrative Agent in writing that such failure is the result of such
Lender's good faith determination that a condition precedent to funding
(specifically identified and includingthe particular default, if any) has not
been satisfied, (b) has notified the Borrower or any Credit Party in writing,
or has made a public statement to the effect, that it does not intend or
expect to comply with any of its funding obligationsunder this Agreement
(unless such writing or public statement indicates that such position is based
on such Lender's good faith determination that a condition precedent
(specifically identified and including the particular default, if any)
tofunding a loan under this Agreement cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within
three Business Days after request by a Credit Party, acting in good faith, to
provide acertification in writing from an authorized officer
16
-------------------------------------------------------------------------------
of such Lender that it will comply with its obligations (and is financially
able to meet such obligations as of the date of certification) to fund
prospective Loans and participations in thenoutstanding Letters of Credit and
Protective Advances under this Agreement, provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit
Party's receipt of such written certification in formand substance
satisfactory to it and the Administrative Agent, or (d) has a direct or
indirect parent company that has become the subject of (i) a Bankruptcy Event
or (ii) a
Bail-In
Action.
"
Deposit Account Control Agreement
" means individually and collectively, each "Deposit Account Control
Agreement"referred to in the Guarantee and Collateral Agreement.
"
Designated
Non-Cash
Consideration
" means the fair market value of
non-cash
consideration received by the Borrower or one of its Restricted Subsidiaries
in connection with a Disposition that is so designated as Designated
Non-Cash
Consideration pursuant to a certificate of a Responsible Officer, setting
forth the basis of such valuation, less the amount of cash and Cash
Equivalents received in connection with a subsequent saleof such Designated
Non-Cash
Consideration within 180 days of receipt thereof.
"
Disposition
" means with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer orother disposition (in one transaction or in
a series of transactions) of any property by any Person (including any sale
and leaseback transaction and any issuance of Capital Stock by a Subsidiary of
such Person), including any sale, assignment,transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith. The terms "
Dispose
" and "
Disposed of
" shall have correlative meanings.
"
Disqualified Capital Stock
" means with respect to any Person, any Capital Stock of such Person that by
its terms (or by theterms of any security into which it is convertible or for
which it is exchangeable, either mandatorily or at the option of the holder
thereof), or upon the happening of any event or condition:
(a) matures or is mandatorily redeemable (other than solely for Capital Stock
of such Person that does not constituteDisqualified Capital Stock and cash in
lieu of fractional shares of such Capital Stock) whether pursuant to a sinking
fund obligation or otherwise;
(b) is convertible or exchangeable, either mandatorily or at the option of the
holder thereof, for Indebtedness or CapitalStock (other than solely for
Capital Stock of such Person that does not constitute Disqualified Capital
Stock and cash in lieu of fractional shares of such Capital Stock); or
(c) is redeemable (other than solely for Capital Stock of such Person that
does not constitute Disqualified Capital Stock andcash in lieu of fractional
shares of such Capital Stock) or is required to be repurchased by the Borrower
or any Restricted Subsidiary, in whole or in part, at the option of the holder
thereof;
in each case, on or prior to the date that is 91 days after the Latest
Maturity Date (determined as of the date of issuance thereof or, in the case
of anysuch Capital Stock outstanding on the Closing Date, the Closing Date);
provided
,
however
, that (i) Capital Stock of any Person that would not constitute Disqualified
Capital Stock but for terms thereof giving holders thereof theright to require
such Person to redeem or purchase such Capital Stock upon the occurrence of an
"asset sale" or a "change of control" (or similar event, however denominated)
shall not constitute Disqualified Capital Stock if anysuch requirement becomes
operative only after repayment in full of all the Loans and all other
Obligations that are accrued and payable and (ii) Capital Stock of any Person
that is issued to any employee or to any plan for the benefit ofemployees or
by any such plan to such employees shall not constitute Disqualified Capital
Stock solely because it may be required to be repurchased by such Person or
any of its subsidiaries in order to satisfy applicable statutory or
regulatoryobligations or as a result of such employee's termination, death or
disability.
17
-------------------------------------------------------------------------------
"
Disqualified Lenders
" means (a) certain banks, financialinstitutions, other institutional lenders
and other Persons that have been specified in writing to the Administrative
Agent by the Borrower prior to the Closing Date, (b) competitors of the
Borrower and its Restricted Subsidiaries and anyaffiliate of such competitor,
in each case, that is identified in writing to the Administrative Agent by the
Borrower from time to time and (c) any affiliates of the entities described in
the foregoing clauses (a) or (b) that are clearlyidentifiable as affiliates of
such entities solely on the basis of the similarity of their names (other than
affiliates that constitute bona fide debt funds primarily investing in loans).
In no event shall the designation of any Person as aDisqualified Lender apply
(x) to disqualify any Person until three (3) Business Days after such Person
shall have been identified in writing to the Administrative Agent via
electronic mail submitted to JPMDQ_Contact@jpmorgan.com (or tosuch other
address as the Administrative Agent may designate to the Borrower from time to
time). For the avoidance of doubt, with respect to any assignee that becomes a
Disqualified Lender after the applicable Trade Date (including as a result
ofthe delivery of a notice pursuant to, and/or the expiration of the notice
period referred to in, this definition) or is otherwise party to a pending
trade as of the date of such notice, (x) such assignee shall not retroactively
be disqualifiedfrom becoming a Lender and (y) the execution by the Borrower of
an Assignment and Assumption with respect to such assignee will not by itself
result in such assignee no longer being considered a Disqualified Lender.
"
Documents
" has the meaning set forth in the Guarantee and Collateral Agreement.
"
Dollars
" and "
$
" means dollars in lawful currency of the United States.
"
Domestic Subsidiary
" means any Restricted Subsidiary of the Borrower organized under the laws of
any jurisdiction within theUnited States.
"
EEA Financial Institution
" means (a) any institution established in any EEA Member Country which
issubject to the supervision of an EEA Resolution Authority, (b) any entity
established in an EEA Member Country which is a parent of an institution
described in clause (a) of this definition, or (c) any institution established
in anEEA Member Country which is a subsidiary of an institution described in
clauses (a) or (b) of this definition and is subject to consolidated
supervision with its parent.
"
EEA Member Country
" means any of the member states of the European Union, Iceland, Liechtenstein
and Norway.
"
EEA Resolution Authority
" means any public administrative authority or any Person entrusted with
public administrativeauthority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial
Institution.
"
Electronic Signature
" means an electronic sound, symbol, or process attached to, or associated
with, a contract or otherrecord and adopted by a Person with the intent to
sign, authenticate or accept such contract or record.
18
-------------------------------------------------------------------------------
"
Eligible Accounts
" means at any time, the Accounts of the Loan Partieswhich the Administrative
Agent determines in its Permitted Discretion (following (to the extent
practicable) reasonable prior notice to, and consultation with, the Borrower)
are eligible as the basis for the extension of Revolving Loans and theissuance
of Letters of Credit. Without limiting the Administrative Agent's Permitted
Discretion provided herein, Eligible Accounts shall not include any Account:
(a) which is not subject to a first priority perfected security interest in
favor of the Administrative Agent;
(b) which is subject to any Lien other than (i) a Lien in favor of the
Administrative Agent, (ii) Permitted
Non-ABL
Liens which do not have priority over the Lien in favor of the Administrative
Agent and (iii) a Permitted Encumbrance which does not have priority over the
Lien in favor of the Administrative Agent;
(c) (i) which is unpaid more than 90 days after the date of the original
invoice therefor or more than 60 days after theoriginal due date therefor or
(ii) which has been written off the books of the Loan Parties or otherwise
designated as uncollectible (in determining the aggregate amount from the same
Account Debtor that is unpaid hereunder there shall beexcluded the amount of
any net credit balances relating to Accounts due from such Account Debtor
which are unpaid more than 90 days from the date of the original invoice
therefor or more than 60 days from the original due date);
(d) which is owing by an Account Debtor for which more than 50% of theAccounts
owing from such Account Debtor and its Affiliates are ineligible pursuant to
clause (c) above;
(e) which isowing by an Account Debtor to the extent the aggregate amount of
Accounts owing from such Account Debtor and its Affiliates to the Loan Parties
exceeds 25% of the aggregate Eligible Accounts, but only to the extent of such
excess;
(f) with respect to which any covenant, representation or warrantycontained in
this Agreement or in the Guarantee and Collateral Agreement has been breached
or is not true in any material respect;
(g) which (i) does not arise from the sale of goods or performance of services
in the ordinary course of business,(ii) is not evidenced by an invoice or
other documentation satisfactory to the Administrative Agent (utilizing its
Permitted Discretion (following (to the extent practicable) reasonable prior
notice to, and consultation with, the Borrower))which has been sent to the
Account Debtor, (iii) represents a progress billing, (iv) is contingent upon a
Loan Party's completion of any further performance, (v) represents a sale on a
bill-and-hold,
guaranteed sale,
sale-and-return,
sale on approval, consignment,
cash-on-delivery
or any other repurchase or return basis or (vi) relates to payments of interest;
(h) (i) for which the goods giving rise to such Account have not been shipped
to the Account Debtor or for which the servicesgiving rise to such Account
have not been performed by a Loan Party or if such Account was invoiced more
than once or (ii) for which the goods giving rise to such Account have been
shipped to the Account Debtor by FOB destination and such goodshave not yet
been received by the Account Debtor;
(i) with respect to which any check or other instrument of payment hasbeen
returned uncollected for any reason;
(j) which is owed by an Account Debtor which has (i) applied for, suffered,or
consented to the appointment of any receiver, custodian, trustee, or
liquidator of its assets, (ii) had possession of all or substantially all of
its property taken by any receiver, custodian, trustee or liquidator, (iii)
filed, or hadfiled against it, any request or petition for liquidation,
reorganization, arrangement,
19
-------------------------------------------------------------------------------
adjustment of debts, adjudication as bankrupt,
winding-up,
or voluntary or involuntary case under any state or federal bankruptcy laws
(other thanpost-petition accounts payable of an Account Debtor that is a
debtor-in-possession
under the Bankruptcy Code and reasonably acceptable to the Administrative
Agent), (iv)admitted in writing its inability, or is generally unable to, pay
its debts as they become due, (v) become insolvent, or (vi) ceased operation
of its business;
(k) which is owed by any Account Debtor which has sold all or a substantially
all of its assets;
(l) which is owed in any currency other than Dollars;
(m) which is owed by (i) the government (or any department, agency, public
corporation, or instrumentality thereof) of anycountry other than the U.S.
unless such Account is backed by a letter of credit acceptable to the
Administrative Agent which is in the possession of, and is directly drawable
by, the Administrative Agent, or (ii) the government of the U.S., orany
department, agency, public corporation, or instrumentality thereof, unless the
Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. (s) 3727
et
seq
. and 41 U.S.C. (s) 15
et
seq
.), and any other stepsnecessary to perfect the Lien of the Administrative
Agent in such Account have been complied with to the Administrative Agent's
satisfaction;
(n) which is owed by any Affiliate of any Loan Party or any employee, officer,
director, agent or stockholder of any Loan Partyor any of its Affiliates;
(o) which is owed by an Account Debtor or any Affiliate of such Account Debtor
to which any LoanParty is indebted, but only to the extent of such
indebtedness, or is subject to any security, deposit, progress payment,
retainage or other similar advance made by or for the benefit of an Account
Debtor, in each case to the extent thereof;
(p) which is subject to any counterclaim, deduction, defense, setoff or
dispute but only to the extent of any suchcounterclaim, deduction, defense,
setoff or dispute;
(q) which is evidenced by any promissory note, chattel paper orinstrument;
(r) which is owed by an Account Debtor (i) located in any jurisdiction which
requires filing of a"Notice of Business Activities Report" or other similar
report in order to permit the applicable Loan Party to seek judicial
enforcement in such jurisdiction of payment of such Account, unless the
applicable Loan Party has filed suchreport or qualified to do business in such
jurisdiction or (ii) which is a Sanctioned Person;
(s) with respect towhich any Loan Party has made any agreement with the
Account Debtor for any reduction thereof, other than discounts and adjustments
given in the ordinary course of business, or any Account which was partially
paid and the applicable Loan Partycreated a new receivable for the unpaid
portion of such Account;
(t) which does not comply in all material respects withthe requirements of all
applicable laws and regulations, whether Federal, state or local, including
the Federal Consumer Credit Protection Act, the Federal Truth in Lending Act
and Regulation Z of the Federal Reserve Board;
(u) which is for goods that have been sold under a purchase order or pursuant
to the terms of a contract or other agreement orunderstanding (written or
oral) that indicates that any Person other than a Loan Party has or has had an
ownership interest in such goods, or which indicates any party other than a
Loan Party as payee or remittance party;
20
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(v) which was created on cash on delivery terms;
(w) which is a Foreign Account unless such Account is backed by (i) a Letter
of Credit acceptable to the AdministrativeAgent in its Permitted Discretion
and which is, if requested by the Administrative Agent, in the possession of,
and is directly drawable by, the Administrative Agent or (ii) other credit
support acceptable to the Administrative Agent in itssole discretion;
(x) which the Administrative Agent determines in its Permitted Discretion
(following (to the extentpracticable) reasonable prior notice to, and
consultation with, the Borrower) may not be paid by reason of the Account
Debtor's inability to pay; or
(y) which is owed by an Account Debtor for which any accounts receivable,
instruments, chattel paper, obligations, generalintangibles and other similar
assets, in each case relating to receivables owing by such Account Debtor or
its Affiliates is subject to a Permitted A/R Finance Transaction.
In determining the amount of an Eligible Account, the face amount of an
Account may, in the Administrative Agent's Permitted Discretion(following (to
the extent practicable) reasonable prior notice to, and consultation with, the
Borrower), be reduced by, without duplication, to the extent not reflected in
such face amount, (i) the amount of all accrued and actual discounts,claims,
credits or credits pending, promotional program allowances, price adjustments,
finance charges or other allowances (including any amount that any Loan Party
may be obligated to rebate to an Account Debtor pursuant to the terms of
anyagreement or understanding (written or oral)) and (ii) the aggregate amount
of all cash received in respect of such Account but not yet applied by the
applicable Loan Party to reduce the amount of such Account. Standards of
eligibility may bemade more restrictive from time to time by the Administrative
Agent in its Permitted Discretion, following (to the extent practicable)
reasonable prior notice to, and consultation with, the Borrower, with any such
changes to be effective fourBusiness Days after delivery of notice thereof to
the Borrower and the Lenders;
provided
that if consultation with the Borrower and/or notice to the Borrower and the
Lenders is not practicable or if failure to implement any such change withina
shorter time period would, in the good faith judgment of the Administrative
Agent, reasonably be expected to result in a Material Adverse Effect or
materially and adversely affect the Collateral or the rights of the Lenders
under the LoanDocuments, such change may be implemented within a shorter time
as determined by the Administrative Agent in its Permitted Discretion;
provided
,
further
, that any Borrowing Base Certificate delivered during such four Business
Dayperiod will reflect any such changes.
"
Eligible Assignee
" means (a) a Lender, (b) an Affiliate of a Lender,(c) an Approved Fund, (d)
any commercial bank and (e) any other financial institution or investment fund
engaged as a primary activity in the ordinary course of its business in making
or investing in commercial loans or debtsecurities, other than, in each case,
(i) a natural person, (ii) the Borrower, any Subsidiary or any other Affiliate
of the Borrower, (iii) a Defaulting Lender or (iv) a Disqualified Lender.
"
Eligible Finished Goods
" means, Eligible Inventory that (a) is located in the United States and (b)
constitutesfinished goods to be sold by the Borrower in the ordinary course of
business of the Borrower, excluding Eligible Raw Materials and Eligible
Inventory constituting
work-in-process.
"
Eligible Inventory
"means at any time, the Inventory of the Loan Parties which the Administrative
Agent determines in its Permitted Discretion (following (to the extent
practicable) reasonable prior notice to, and consultation with, the Borrower)
is eligible as thebasis for the extension of Revolving Loans and the issuance
of Letters of Credit. Without limiting the Administrative Agent's Permitted
Discretion provided herein, Eligible Inventory shall not include any Inventory:
(a) which is not subject to a first priority perfected Lien in favor of the
Administrative Agent;
21
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(b) which is subject to any Lien other than (i) a Lien in favor of the
AdministrativeAgent, (ii) Permitted
Non-ABL
Liens which do not have priority over the Lien in favor of the Administrative
Agent and (iii) a Permitted Encumbrance which does not have priority over the
Lien in favorof the Administrative Agent;
(c) which is, in the Administrative Agent's Permitted Discretion (following
(to the extent practicable)reasonable prior notice to, and consultation with,
the Borrower), slow moving, obsolete, unmerchantable, defective, used, unfit
for sale, not salable at prices approximating at least the cost of such
Inventory in the ordinary course of business orunacceptable due to age, type,
category and/or quantity;
(d) with respect to which any covenant, representation or warranty contained
inthis Agreement or in the Guarantee and Collateral Agreement has been
breached or is not true and which does not conform to all standards imposed by
any Governmental Authority;
(e) in which any Person other than a Loan Party shall (i) have any direct or
indirect ownership, interest or title to such Inventory or(ii) be indicated on
any purchase order or invoice with respect to such Inventory as having an
interest therein;
(f) which is notraw materials or finished goods;
(g) which constitutes
work-in-process,
spare or replacement parts, subassemblies, packaging and shipping material,
manufacturing supplies, samples, prototypes, displays or display items,
bill-and-hold
or
ship-in-place
goods, goods that are returned or marked for return, repossessedgoods,
defective or damaged goods, goods held on consignment, or goods which are not
of a type held for sale in the ordinary course of business;
(h) which is in transit with a common carrier from vendors and suppliers;
(i) [reserved];
(j) which islocated in any third party warehouse or is in the possession of a
bailee (other than a third party processor) and is not evidenced by a
Document, unless (i) such warehouseman or bailee has delivered to the
Administrative Agent a CollateralAccess Agreement and such other documentation
as the Administrative Agent may require or (ii) an appropriate Reserve has
been established by the Administrative Agent in its Permitted Discretion
(following (to the extent practicable) reasonableprior notice to, and
consultation with, the Borrower);
(k) which is being processed offsite at a third party location or
outsideprocessor, or is
in-transit
to or from such third party location or outside processor;
(l) whichis a discontinued product or component thereof;
(m) which is the subject of a consignment by the applicable Loan Party as
consignor;
(n) which is perishable;
(o)which contains or bears any intellectual property rights licensed to the
applicable Loan Party unless the Administrative Agent is reasonably satisfied
that it may sell or otherwise dispose of such Inventory without (i) infringing
the rights ofsuch licensor, (ii) violating any contract with such licensor, or
(iii) incurring any liability with respect to payment of royalties other than
royalties incurred pursuant to sale of such Inventory under the current
licensing agreement;
22
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(p) which is not reflected in a current perpetual inventory report or on the
general ledgerof the Loan Parties (unless such Inventory is reflected in a
report to the Administrative Agent as "in transit" Inventory);
(q)for which reclamation rights have been asserted by the seller;
(r) which has been acquired from a Sanctioned Person;
(s) which the Administrative Agent in its Permitted Discretion (following (to
the extent practicable) reasonable prior notice to, andconsultation with, the
Borrower) determines is unacceptable; or
(t) Inventory constituting
work-in-process.
Standards of eligibility may be made more restrictive from time to time by
theAdministrative Agent in its Permitted Discretion, after consultation (to
the extent practicable) with the Borrower, with any such changes to be
effective four Business Days after delivery of notice thereof to the Borrower
and the Lenders;
provided
that if consultation with the Borrower and/or notice to the Borrower and the
Lenders is not practicable or if failure to implement any such change within a
shorter time period would, in the good faith judgment of the AdministrativeAgent
, reasonably be expected to result in a Material Adverse Effect or materially
and adversely affect the Collateral or the rights of the Lenders under the
Loan Documents, such change may be implemented within a shorter time as
determined by theAdministrative Agent in its Permitted Discretion;
provided
,
further
, that any Borrowing Base Certificate delivered during such four Business Day
period will reflect any such changes.
"
Eligible Raw Materials
" means, Eligible Inventory that is (a) located in the United States and (b)
constitutes rawmaterials used or consumed by the Borrower in the ordinary
course of business in the manufacture or production of other inventory,
excluding Eligible Finished Goods and Eligible Inventory constituting
work-in-process.
"
Environmental Laws
" means any and all foreign, Federal,state, local or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability orstandards of conduct
concerning protection of human health or the environment, as now or may at any
time hereafter be in effect.
"
Environmental Permits
" means any and all permits, licenses, approvals, registrations, notifications,
exemptions and anyother authorization required under any Environmental Law.
"
ERISA
" means the Employee Retirement Income Security Act of1974, as amended from
time to time, and the rules and regulations promulgated thereunder.
"
ERISA Affiliate
" means anytrade or business (whether or not incorporated) that, together with
the Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or Section 4001(a)(14) of ERISA or, solely for purposes of Section
302 ofERISA and Section 412 of the Code, is treated as a single employer under
Section 414(m) or (o) of the Code.
23
-------------------------------------------------------------------------------
"
ERISA Event
" means (a) any "reportable event", as definedin Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30 day notice period is waived); (b) the failure to satisfy the
"minimum funding standard" (as defined inSection 412 of the Code or Section
302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(c) of the Code or Section 302(c) of ERISA of an application for a waiver
of the minimum funding standard withrespect to any Plan; (d) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the
Borrower or any ERISA Affiliate fromthe PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability withrespect to the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any MultiemployerPlan from the Borrower or
any ERISA Affiliate of any notice, concerning the imposition upon the Borrower
or any of its ERISA Affiliates of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent withinthe meaning of
Title IV of ERISA.
"
EU
Bail-In
Legislation Schedule
" meansthe EU
Bail-In
Legislation Schedule published by the Loan Market Association (or any
successor Person), as in effect from time to time.
"
Event of Default
" means any of the events specified in Section 8,
provided
that any requirement for the givingof notice, the lapse of time, or both, has
been satisfied.
"
Exchange Act
" means the Securities Exchange Act of 1934, asamended.
"
Excluded Account
" has the meaning set forth in the Guarantee and Collateral Agreement.
"
Excluded Swap Obligation
" means with respect to any Loan Party (a) any Swap Obligation if, and to the
extent that, andonly for so long as, all or a portion of the guarantee of such
Loan Party of, or the grant by such Loan Party of a security interest to
secure, as applicable, such Swap Obligation (or any guarantee thereof) is or
becomes illegal under the CommodityExchange Act or any rule, regulation or
order of the Commodity Futures Trading Commission (or the application or
official interpretation of any thereof) by virtue of such Loan Party's failure
to constitute an "eligible contractparticipant," as defined in the Commodity
Exchange Act and the regulations thereunder, at the time the guarantee of (or
grant of such security interest by, as applicable) such Loan Party becomes or
would become effective with respect to suchSwap Obligation or (b) any other
Swap Obligation designated as an "Excluded Swap Obligation" of such Loan Party
as specified in any agreement between the relevant Loan Parties and
counterparty applicable to such Swap Obligations, andagreed by the
Administrative Agent. If a Swap Obligation arises under a master agreement
governing more than one Swap, such exclusion shall apply only to the portion
of such Swap Obligation that is attributable to Swaps for which such guarantee
orsecurity interest is or becomes illegal.
"
Excluded Subsidiary
" means (a) any Unrestricted Subsidiary,(b) Immaterial Subsidiary, (c) any
non-Wholly
Owned Subsidiary to the extent the organizational documents thereof prohibit
it from guaranteeing the Obligations, (d) any Subsidiary that isprohibited or
restricted by applicable law, rule or regulation or by any contractual
obligation existing on the Closing Date or on the date such Subsidiary was
acquired (so long as such contractual obligation was not entered into in
contemplation ofsuch acquisition) from guaranteeing the Obligations or which
would require a
non-ministerial
governmental (including regulatory) consent, approval, license or
authorization to provide a guarantee unless suchconsent, approval, licensor
authorization has been received (the Loan Parties being under no obligation to
obtain such consent, approval or licensor authorization), (e) any CFC or CFC
Holding Company, (f) any Domestic Subsidiary of a ForeignSubsidiary,
(g) not-for-profit
Subsidiaries and captive insurance companies, (h) any Subsidiary whose
provision of a guarantee would have a cost (including taxcost), burden,
difficulty or consequence that is excessive in relation to the value afforded
thereby as agreed between the Borrower and
24
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Administrative Agent, and (i) any Restricted Subsidiary acquired pursuant to a
Permitted Acquisition with Indebtedness permitted to be incurred pursuant to
the Loan Documents as assumedIndebtedness and any Restricted Subsidiary
thereof that guarantees such assumed Indebtedness, in each case to the extent
such secured Indebtedness prohibits such Subsidiary from becoming a Guarantor.
Each Excluded Subsidiary as of the Closing Dateis set forth on Schedule 4.15.
"
Excluded Taxes
" means any of the following Taxes imposed on or with respect to a CreditParty
or required to be withheld or deducted from a payment to a Credit Party, (a)
Taxes imposed on or measured by net income (however denominated), franchise
Taxes, and branch profits Taxes, in each case, (i) imposed as a result of
aCredit Party being organized under the laws of, or having its principal
office or, in the case of any Lender, its applicable lending office located
in, the jurisdiction imposing such Tax (or any political subdivision thereof)
or (ii) that areOther Connection Taxes, (b) in the case of such Lender, U.S.
Federal withholding Taxes imposed on amounts payable to or for the account of
such Lender with respect to an applicable interest in a Loan or Commitment
pursuant to a law in effect onthe date on which (i) a Lender acquires such
interest in the Loan or Commitment (other than pursuant to an assignment
request by the Borrower under Section 2.22) or (ii) a Lender changes its
lending office, except in each case to theextent that, pursuant to Section
2.19, amounts with respect to such Taxes were payable either to such Lender's
assignor immediately before such Lender acquired the applicable interest in a
Loan or Commitment or to such Lender immediatelybefore it changed its lending
office, (c) Taxes attributable to a Credit Party's failure to comply with
Section 2.19(f) and (d) any U.S. Federal withholding Taxes imposed under FATCA.
"
Existing Letters of Credit
" means the letters of credit existing on the Closing Date and identified on
Schedule 3.01.
"
Existing
Non-ABL
CreditAgreement
" means that certain Amended and Restated Credit Agreement, dated as of the
Fifth Amendment Effective Date, by and among the Borrower, the lenders from
time to time party thereto and AgWest Farm Credit, PCA, as administrativeagent,
as amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms hereof and of the Intercreditor Agreement.
"
Facility
" means each the Commitments and the Revolving Loans made thereunder.
Additional Facilities may be establishedpursuant to Section 2.25.
"
Farm Credit Lender
" has the meaning set forth in the Existing
Non-ABL
Credit Agreement as in effect on the Fifth Amendment Effective Date.
"
Farm Credit TermLoan Facility
" means the farm credit term loan credit facility governed by Existing
Non-ABL
Credit Agreement, and for the avoidance of doubt, shall not include or be
deemed to include the CommercialBank Term Loan Facility or the Term Revolver
Facility.
"
FATCA
" means Sections 1471 through 1474 of the Code, as of thedate of this
Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with), any current or
future regulations or official interpretations thereof, any agreement entered
into pursuantto Section 1471(b)(1) of the Code and any fiscal or regulatory
legislation, rules or practices adopted pursuant to any intergovernmental
agreement, treaty or convention among Governmental Authorities and
implementing such Sections of the Code.
"
Federal Funds Effective Rate
" means, for any day, the rate calculated by the NYFRB based on such day's
federalfunds transactions by depositary institutions, as determined in such
manner as the NYFRB shall set forth on its public website from time to time,
and published on the next succeeding Business Day by the NYFRB as the
effective federal funds rate;provided that if the Federal Funds Effective Rate
as so determined would be less than zero, such rate shall be deemed to be zero
for the purposes of this Agreement.
25
-------------------------------------------------------------------------------
"
Federal Reserve Board
" means the Board of Governors of the Federal ReserveSystem of the United
States of America.
"
Fee Payment Date
" means (a) 15 days following the last Business Day ofeach March, June,
September and December and (b) the last day of the Revolving Commitment Period.
"
Fifth Amendment
"means the Fifth Amendment to ABL Credit Agreement and Omnibus Amendment,
dated as of May 1, 2024, among the Borrower, the Subsidiary Guarantors party
thereto, the Administrative Agent and the Lenders party thereto.
"
Fifth Amendment Effective Date
" means the "Fifth Amendment Effective Date" as defined in the Fifth Amendment.
"
Flood Insurance Laws
" means, collectively, (i) the National Flood Insurance Reform Act of 1994
(which comprehensivelyrevised the National Flood Insurance Act of 1968 and the
Flood Disaster Protection Act of 1973) as now or hereafter in effect or any
successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now
or hereafter in effect or anysuccessor statute thereto and (iii) the
Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in
effect or any successor statute thereto.
"
Floor
" means the benchmark rate floor, if any, provided in this Agreement initially
(as of the execution of this Agreement,the modification, amendment or renewal
of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate.
For the avoidance of doubt the initial Floor for each of Adjusted Term SOFR
Rate shall be 0%.
"
Foreign Account
" means an Account that is owed by an Account Debtor which (i) does not
maintain its chief executiveoffice in the U.S. (including any territory
thereof) or (ii) is not organized under applicable law of the U.S., any state
of the U.S., or the District of Columbia.
"
Foreign Subsidiary
" means any Restricted Subsidiary of the Borrower that is not a Domestic
Subsidiary.
"
Foreign Benefit Arrangement
" means any employee benefit arrangement mandated by
non-U.S.
law that is maintained or contributed to by any Group Member, any ERISA
Affiliate or any other entity related to a Group Member on a controlled group
basis.
"
Foreign Plan
" means each employee benefit plan (within the meaning of Section 3(3) of
ERISA, whether or not such planis subject to ERISA) that is not subject to US
law and is maintained or contributed to by any Group Member, or ERISA
Affiliate or any other entity related to a Group Member on a controlled group
basis.
"
Foreign Plan Event
" means with respect to any Foreign Benefit Arrangement or Foreign Plan, (a)
the failure to make or,if applicable, accrue in accordance with normal
accounting practices, any employer or employee contributions required by
applicable law or by the terms of such Foreign Benefit Arrangement or Foreign
Plan; (b) the failure to register or loss ofgood standing with applicable
regulatory authorities of any such Foreign Benefit Arrangement or Foreign Plan
required to be registered; or (c) the failure of any Foreign Benefit
Arrangement or Foreign Plan to comply with any material provisionsof
applicable law and regulations or with the material terms of such Foreign
Benefit Arrangement or Foreign Plan.
26
-------------------------------------------------------------------------------
"
Fourth Amendment
" means the Fourth Amendment to ABL Credit Agreement,dated as of October 27,
2023, among the Borrower, the Subsidiary Guarantors party thereto, the
Administrative Agent and the Lenders party thereto.
"
Fourth Amendment Effective Date
" means the "Fourth Amendment Effective Date" as defined in the Fourth
Amendment.
"
Full Cash Dominion Period
" means (a) each period when an Event of Default shall have occurred and be
continuingand (b) each period beginning on the second consecutive Business Day
on which Availability is less than or equal to the greater of (x) 12.5% of the
Line Cap and (y) $32.0 million;
provided
that any such Full Cash Dominion Periodcommencing pursuant to clause (b) shall
end when and if Availability shall have been not less than such specified
level for 30 consecutive days.
"
Funding Office
" means the office of the Administrative Agent specified in Section 10.2 or
such other office as may bespecified from time to time by the Administrative
Agent as its funding office by written notice to the Borrower and the Lenders.
"
GAAP
" means generally accepted accounting principles in the United States as in
effect from time to time. In the event thatany "Accounting Change" (as defined
below) shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this Agreement, then
the Borrower and the Administrative Agent agree toenter into negotiations to
promptly amend such provisions of this Agreement so as to reflect equitably
such Accounting Changes with the desired result that the criteria for
evaluating the Borrower's results of operations and/or financialcondition
shall be the same after such Accounting Changes as if such Accounting Changes
had not been made. Until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative Agent and the
RequiredLenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting
Changes had not occurred. "
Accounting Changes
" refers to changes in accounting principlesrequired by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or,
if applicable, the SEC.
"
Governmental Authority
" means the government of the United States of America, any other nation or
any political subdivisionthereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertainingto government, any
securities exchange and any self-regulatory organization (including the
National Association of Insurance Commissioners).
"
Group Members
" means the collective reference to the Borrower and its Restricted
Subsidiaries.
"
Guarantee and Collateral Agreement
" means the ABL Guarantee and Collateral Agreement, dated as of the Closing
Date, executedand delivered by the Borrower and each Subsidiary Guarantor,
substantially in the form of Exhibit D.
27
-------------------------------------------------------------------------------
"
Guarantee Obligation
" means as to any Person (the "
guaranteeingperson
"), any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing Person that guarantees or in effect
guarantees, or which is given to induce the creation of a separate obligation
by anotherPerson (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness, leases, dividends or
other obligations (the "
primary obligations
") of any other third Person (the "primaryobligor") in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect securitytherefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency ofthe primary obligor, (iii)
to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or(iv) otherwise to
assure or hold harmless the owner of any such primary obligation against loss
in respect thereof;
provided
,
however
, that the term Guarantee Obligation shall not include endorsements of
instruments for deposit orcollection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or determinable amount of
the primary obligation in respect ofwhich such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximumamount for which such
guaranteeing person may be liable are not stated or determinable, in which
case the amount of such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in respect thereof
asdetermined by the Borrower in good faith.
"
Immaterial Subsidiary
" means any Restricted Subsidiary that is not a MaterialSubsidiary and that is
designated by the Borrower in writing to the Administrative Agent as an
"Immaterial Subsidiary";
provided
that if (i) as of the last day of the most recently ended fiscal quarter of
the Borrower for whichfinancial statements have been delivered pursuant to
Section 6.1(a) or (b), the aggregate Consolidated Net Tangible Assets of all
Immaterial Subsidiaries, as of the last day of such fiscal quarter, exceeds 5%
of Consolidated Net Tangible Assetsof the Borrower and its Restricted
Subsidiaries or (ii) the aggregate contribution of Consolidated EBITDA of all
Immaterial Subsidiaries to Consolidated EBITDA for the Applicable Reference
Period exceeds 7.5% of Consolidated EBITDA of theBorrower and its Restricted
Subsidiaries for such Applicable Reference Period, then one or more Restricted
Subsidiaries that are not Material Subsidiaries shall promptly be designated
by the Borrower in writing to the Administrative Agent as a"Material
Subsidiary" until such excess has been eliminated. Each Immaterial Subsidiary
as of the Closing Date is set forth on Schedule 4.15.
"
Increased Facility Activation Notice
" means a notice substantially in the form of Exhibit
I-1
or in such other form as is reasonably acceptable to the Administrative Agent.
"
Increased Facility Closing Date
" means any Business Day designated as such in an Increased Facility
Activation Notice.
"
Incremental Commitments
" has the meaning set forth in Section 2.24(a).
"
Indebtedness
" means of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowedmoney, (b) all obligations of such Person for the
deferred purchase price of property or services (other than (i) trade payables
incurred in the ordinary course of such Person's business or consistent with
industry or past practice,(ii) deferred compensation payable to directors,
officers or employees of any Group Member, (iii) any purchase price adjustment
or earnout obligation until such adjustment or obligation becomes a liability
on the balance sheet of suchPerson in accordance with GAAP, (iv) accrued
expenses and liabilities and intercompany liabilities arising in the ordinary
course of such Person's business, and (v) prepaid or deferred revenue arising
in the ordinary course ofbusiness), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to
28
-------------------------------------------------------------------------------
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property),(e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as
an account party or applicant under or in respect of acceptances, letters of
credit, surety bonds or similar arrangements,(g) the liquidation value of all
redeemable preferred Disqualified Capital Stock of such Person, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above,(i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including accountsand contract rights)
owned by such Person, whether or not such Person has assumed or become liable
for the payment of such obligation (but only to the extent of the lesser of
(i) the amount of such Indebtedness and (ii) the fair marketvalue of such
property), and (j) for the purposes of Section 8(e) only, after taking into
account the effect of any legally enforceable netting agreement relating to
Swap Agreements, (i) for any date on or after the date such SwapAgreements
have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (ii) for any date prior to the date
referenced in the immediately preceding clause (i), the amount(s) determined
as the
mark-to-market
value(s) for such Swap Agreements, as determined based upon one or more
mid-market
or other readily available quotationsprovided by any recognized dealer in such
Swap Contracts (which may include a Lender or any Affiliate of a Lender). The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person isa general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness expressly provide that such Person isnot liable
therefor. For the avoidance of doubt, notwithstanding anything to the contrary
contained in this Agreement, neither a Tax Incentive Transaction nor any
obligations arising in connection therewith shall constitute Indebtedness.
"
Indemnified Taxes
" means (a) Taxes, other than Excluded Taxes, imposed on or with respect to
any payment made by or onaccount of any obligation of any Loan Party under any
Loan Document and (b) to the extent not otherwise described in clause (a)
above, Other Taxes.
"
Insolvent
" means with respect to any Multiemployer Plan, the condition that such plan
is insolvent within the meaning ofSection 4245 of ERISA.
"
Intellectual Property
" means the collective reference to all rights, priorities andprivileges
relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including copyrights, copyright
licenses, patents, patent licenses, trademarks, trademark licenses, technology,
know-how
and processes, all registrations and applications therefor, and all rights to
sue at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds anddamages therefrom.
"
Intercreditor Agreement
" means (a) the Term Intercreditor Agreement and (b) any otherintercreditor
agreement governing the relationship between the Administrative Agent and the
Non-ABL
Representative that is (i) acceptable to the Required Lenders or (ii)
substantially in the form ofExhibit K and satisfactory to the Administrative
Agent.
"
Interest Election Request
" means a request by the Borrower toconvert or continue a Revolving Borrowing
in accordance with Section 2.12 and the definition of "Interest Period", which
shall be substantially in the form of Exhibit B or any other form approved by
the Administrative Agent.
29
-------------------------------------------------------------------------------
"
Interest Payment Date
" means (a) as to any ABR Loan, the first day ofeach January, April, July and
October to occur while such Loan is outstanding and the final maturity date of
such Loan, (b) as to any Term SOFR Loan having an Interest Period of three
months or less, the last day of such Interest Period,(c) as to any Term SOFR
Loan having an Interest Period longer than three months, each day that is
three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as toany
Loan, the date of any repayment or prepayment made in respect thereof.
"
Interest Period
" means with respect to anyTerm Benchmark Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day in
the calendar month that is one, three or six months thereafter (in each case,
subject to the availability for theBenchmark applicable to the relevant Loan
or Commitment), as the Borrower may elect;
provided
, that (i) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeedingBusiness Day
unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day, (ii) any Interest Period that commences on the last Business Day
of acalendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall
end on the last Business Day of the last calendar month of such Interest
Period and (iii) no tenor thathas been removed from this definition pursuant to
Section
2.16(e)
shall be available for specification in such Borrowing Request or Interest
Election Request. For purposes hereof, the date of a Borrowing initially shall
bethe date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"
Inventory
" has the meaning set forth in the Guarantee and Collateral Agreement.
"
Investment Grade Eligible Accounts
" means Eligible Accounts owing by an Account Debtor (a) whose securities are
rated
BBB-
or better by S&P or Baa3 or better by Moody's at such time or (b) is a
wholly-owned subsidiary of a Person whose securities are rated
BBB-
or better byS&P or Baa3 or better by Moody's at such time.
"
Investments
" has the meaning set forth in Section 7.7. Forthe avoidance of doubt,
notwithstanding anything to the contrary contained in this Agreement, a Tax
Incentive Transaction shall not constitute an Investment.
"
IRS
" means the United States Internal Revenue Service.
"
Issuer Document
" means, with respect to any Letter of Credit, the Application, a letter of
credit agreement, or any otherdocument, agreement or instrument entered into
(or to be entered into) by a Borrower in favor of the Issuing Lender and
relating to such Letter of Credit.
"
Issuing Lender
" means, subject to Section 3.9, each of JPMCB, Wells Fargo Bank, National
Association and any otherRevolving Lender reasonably approved by the
Administrative Agent and the Borrower that has agreed in its sole discretion
to act as an "Issuing Lender" hereunder, or any of their respective
affiliates, in each case in its capacity as issuerof any Letter of Credit.
Each reference herein to "the Issuing Lender" shall be deemed to be a
reference to the relevant Issuing Lender.
"
Joint Venture
" means a joint venture, partnership or other similar arrangement entered into
by the Borrower or anyRestricted Subsidiary, whether in corporate, partnership
or other legal form;
provided
that in no event shall any Subsidiary be considered to be a Joint Venture.
"
JPMCB
" means JPMorgan Chase Bank, N.A., a national banking association, in its
individual capacity, and its successors.
30
-------------------------------------------------------------------------------
"
Junior Indebtedness
" means (a) the Permitted Notes, (b) anyMaterial Subordinated Indebtedness,
(c) any Indebtedness (other than Permitted
Non-ABL
Loans and any Permitted Refinancing Indebtedness in respect thereof) of any
Group Member that is secured by a Lien onthe Collateral that is junior to the
Lien on the Collateral securing the Obligations and (d) any Material Unsecured
Indebtedness of any Group Member.
"
Latest Maturity Date
" means at any date of determination, the latest scheduled maturity date
applicable to any Loanhereunder at such time.
"
L/C Commitment
" means $15,000,000, as such amount may be reduced from time to time by
themutual agreement of the Administrative Agent and the Borrower.
"
L/C Disbursement
" means a payment made by an IssuingLender pursuant to a Letter of Credit,
including in respect of a time draft presented thereunder.
"
L/C Exposure
" meansat any time, the total L/C Obligations. The L/C Exposure of any
Revolving Lender at any time shall be its Revolving Percentage of the total
L/C Exposure at such time. For all purposes of this Agreement, if on any date
of determination a Letter ofCredit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Article 29(a) of the
Uniform Customs and Practice for Documentary Credits, International Chamber of
Commerce Publication No. 600 (or suchlater version thereof as may be in effect
at the applicable time) or Rule 3.13 or Rule 3.14 of the International Standby
Practices, International Chamber of Commerce Publication No. 590 (or such
later version thereof as may be in effect at theapplicable time) or similar
terms of the Letter of Credit itself, or if compliant documents have been
presented but not yet honored, such Letter of Credit shall be deemed to be
"outstanding" and "undrawn" in the amount soremaining available to be paid,
and the obligations of the Borrower and each Lender shall remain in full force
and effect until the Issuing Lender and the Lenders shall have no further
obligations to make any payments or disbursements under anycircumstances with
respect to any Letter of Credit.
"
L/C Obligations
" means at any time, an amount equal to the sum of(a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b)
the aggregate amount of drawings under Letters of Credit that have not then
been reimbursed pursuant to Section 3.5.
"
L/C Participants
" means the collective reference to all the Revolving Lenders other than the
Issuing Lender.
"
LCT Election
" has the meaning set forth in Section 1.6.
"
LCT Test Date
" has the meaning set forth in Section 1.6.
"
Lender Parent
" means with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, aSubsidiary.
"
Lender-Related Person
" has the meaning set forth in Section 10.5(a).
"
Lenders
" means the Persons listed on Schedule 1.1A and any other Person that shall
have become a party hereto pursuant to anAssignment and Assumption or
otherwise, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption or otherwise. Unless the context
otherwise requires, the term "Lenders" includes the IssuingLenders.
"
Letters of Credit
" has the meaning set forth in Section 3.1(a).
31
-------------------------------------------------------------------------------
"
Liabilities
" means any losses, claims (including intraparty claims),demands, damages or
liabilities of any kind.
"
Lien
" means, any mortgage, pledge, hypothecation, assignment, depositarrangement,
encumbrance, lien (statutory or other), charge or other security interest or
any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale
or othertitle retention agreement and any capital lease having substantially
the same economic effect as any of the foregoing).
"
LimitedCondition Transaction
" means any Investment that the Borrower or a Restricted Subsidiary is
contractually committed to consummate (it being understood that such
commitment may be subject to conditions precedent, which conditions
precedentmay be amended, satisfied or waived in accordance with the applicable
agreement) within 365 days and whose consummation is not conditioned on the
availability or, or on obtaining, third party financing.
"
Line Cap
" means at any time, an amount equal to the lesser of (a) the Total
Commitments and (b) the BorrowingBase.
"
Loan
" means the loans made by the Lenders to the Borrower pursuant to this
Agreement, including ProtectiveAdvances.
"
Loan Documents
" means this Agreement, including schedules and exhibits hereto, the Security
Documents, eachIntercreditor Agreement, the Notes, the Letters of Credit, any
Applications, any Issuer Documents and any amendment, waiver, supplement or
other modification to any of the foregoing.
"
Loan Modification Agreement
" means a Loan Modification Agreement, in form and substance reasonably
satisfactory to theAdministrative Agent and the Borrower, among the Borrower,
the Administrative Agent and one or more Accepting Lenders, effecting one or
more Permitted Amendments and such other amendments hereto and to the other
Loan Documents as are contemplated bySection 2.25.
"
Loan Modification Offer
" has the meaning set forth in Section 2.25(a).
"
Loan Parties
" means the Borrower and the Subsidiary Guarantors.
"
Margin Stock
" means margin stock within the meaning of Regulations T, U and X, as
applicable.
"
Material Adverse Effect
" means a material adverse change in, or a material adverse effect on, (a) the
business,property, assets, liabilities (actual or contingent), operations or
financial condition of the Borrower and its Restricted Subsidiaries taken as a
whole, (b) the ability of the Loan Parties (taken as a whole) to perform the
obligations underthe Loan Documents to which they are a party or (c) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"
Material Disposition
" means any Disposition of property or series of related Dispositions (other
than Dispositions permittedpursuant to Section 7.5(m)) of property that yields
gross proceeds to the Group Members in excess of $65,000,000.
32
-------------------------------------------------------------------------------
"
Material Indebtedness
" means Indebtedness (other than the Loans) of anyone or more of the Borrower
and the Restricted Subsidiaries in an aggregate principal amount of
$75,000,000 or more;
provided
that any Permitted
Non-ABL
Loans shall be deemed to be MaterialIndebtedness. For purposes of determining
Material Indebtedness, the "principal amount" of any Swap Obligation at any
time shall be the maximum aggregate amount (giving effect to any netting
agreements) that the Borrower and/or anyapplicable Restricted Subsidiary would
be required to pay if the applicable Swap Agreement were terminated at such
time.
"
Material Pension Event
" means a withdrawal during the term of this Agreement by the Borrower from a
single MultiemployerPlan requiring cash payments by the Borrower or its
Subsidiaries which Multiemployer Plan is identified in writing to the
Administrative Agent in the Compliance Certificate required to be delivered
for the fiscal quarter ending after the occurrencethereof.
"
Material Subordinated Indebtedness
" means any Subordinated Indebtedness in an aggregate principal amount
of$5,000,000 or more.
"
Material Subsidiary
" means, as of any date of determination, each Restricted Subsidiary(a) with
tangible assets (including the value of Capital Stock of its subsidiaries) on
such date of determination equal to or greater than 5.0% of Consolidated Net
Tangible Assets, (b) whose contribution to Consolidated EBITDA for
theApplicable Reference Period exceeds 7.5% of Consolidated EBITDA for the
Applicable Reference Period or (c) that is designated as a "Material
Subsidiary" pursuant to the definition of Immaterial Subsidiary.
"
Material Unsecured Indebtedness
" means any Indebtedness in an aggregate principal amount of $30,000,000 or
more that is notsecured by a Lien on any property of any Group Member.
"
Materials of Environmental Concern
" means any gasoline orpetroleum (including crude oil or any fraction thereof)
or petroleum products, asbestos, polychlorinated biphenyls, urea-formaldehyde
insulation, radioactivity, and any other substances, materials or wastes, that
are regulated pursuant to or thatcould give rise to liability under any
Environmental Law.
"
Maturity Date Extension Notice
" means a notice substantiallyin the form of Exhibit
I-3
or in such other form as is reasonably acceptable to the Administrative Agent.
"
Minimum Extension Condition
" has the meaning set forth in Section 2.25(a).
"
Moody's
" means Moody's Investors Service, Inc.
"
Multiemployer Plan
" means a multiemployer plan as defined in Section 4001(a)(3) of ERISA to
which any Group Member orany ERISA Affiliate (i) makes or is obligated to make
contributions, (ii) during the preceding five plan years, has made or been
obligated to make contributions or (iii) has any actual or contingent
liability.
"
Multiple Employer Plan
" means a Plan which has two or more contributing sponsors (including any
Group Member or any ERISAAffiliate) at least two of whom are not under common
control, as such a Plan is described in Section 4064 of ERISA.
"
NetCash Proceeds
" means (a) in connection with any Disposition or any Recovery Event, the
proceeds thereof in the form of cash and Cash Equivalents (including any such
proceeds received by way of deferred payment of principal pursuant toa note or
installment receivable or purchase price adjustment receivable or otherwise,
but only as and when received), net of the direct costs relating to such
Disposition or Recovery Event including attorneys' fees, accountants'
fees,investment banking fees, sales commissions, amounts required to be
applied to the repayment of Indebtedness (other than the Loans, any Pari Passu
Secured Indebtedness or any Junior Indebtedness) secured by a Lien expressly
permitted
33
-------------------------------------------------------------------------------
hereunder on any asset that is the subject of such Disposition or Recovery
Event and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid orreasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and any (i) reasonable reserve
for adjustment in respect of the sale price of such assetor assets established
in accordance with GAAP;
provided
that upon release of any such reserve, the amount released shall be considered
Net Cash Proceed and (ii) any reasonable reserve or payment with respect to
any liabilities associatedwith such asset or assets and retained by the
Borrower after such sale or other disposition thereof, including, severance
costs, pension and other post-employment benefit liabilities and liabilities
related to environmental matters or against anyindemnification obligations
associated with such transaction;
provided
that upon release of any such reserve, the amount released shall be considered
Net Cash Proceeds and (b) in connection with any issuance or sale of Capital
Stock orany incurrence of Indebtedness, the cash proceeds received from such
issuance or incurrence, net of all taxes paid or reasonably estimated to be
payable as a result thereof and fees, including attorneys' fees, investment
banking fees anddiscounts, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"
Net Orderly Liquidation Value
" means with respect to Inventory of any Person, the net orderly liquidation
value expected tobe realized at an orderly, negotiated sale held within
reasonable time period from the most recent Inventory appraisal ordered by the
Administrative Agent.
"
New Lender
" has the meaning set forth in Section 2.24(b).
"
New Lender Supplement
" has the meaning set forth in Section 2.24(b).
"
Non-ABL
Facilities
" means each of the (i) Term Revolver Facility,(ii) Farm Credit Term Loan
Facility and (iii) Commercial Bank Term Loan Facility, in each case, as such
facility is governed by the Existing
Non-ABL
Credit Agreement.
"
Non-ABL
Facility Documents
" means the "Loan Documents" as defined in theExisting
Non-ABL
Credit Agreement.
"
Non-ABL
Priority Collateral
" means the
"Non-ABL
Priority Collateral" as defined in the Intercreditor Agreement.
"
Non-ABL
Representative
" means, subject to the Intercreditor Agreements,(a) while the
Non-ABL
Facilities remain in effect, the "Administrative Agent" as defined in the
Existing
Non-ABL
Credit Agreement and (b) the agent,trustee or other representative in respect
of any other Permitted
Non-ABL
Loans or other secured Indebtedness permitted to be incurred under this
Agreement that is required to be subject to an IntercreditorAgreement.
"
Non-Guarantor
Debt Limit
" means an amount equal to the greater of$100,000,000 and 7.5% of Consolidated
Net Tangible Assets.
"
Non-Investment
Grade EligibleAccounts
" means Eligible Accounts that are not Investment Grade Eligible Accounts.
"
Non-U.S.
Lender
" means (a) if the Borrower is a U.S. Person, a Lender, withrespect to the
Borrower, that is not a U.S. Person, and (b) if the Borrower is not a U.S.
Person, a Lender, with respect to the Borrower, that is resident or organized
under the laws of a jurisdiction other than that in which the Borrower
isresident for tax purposes.
34
-------------------------------------------------------------------------------
"
Not Otherwise Applied
" means in respect of any amount, such amount has notpreviously been (and is
not currently being) applied to any other use or transaction.
"
Notes
" means the collectivereference to any promissory note evidencing Loans.
"
NYFRB
" means the Federal Reserve Bank of New York.
"
NYFRB Rate
" means, for any day, the greater of (a) the Federal Funds Effective Rate in
effect on such day and(b) the Overnight Bank Funding Rate in effect on such
day (or for any day that is not a Business Day, for the immediately preceding
Business Day); provided that if none of such rates are published for any day
that is a Business Day, the term"NYFRB Rate" means the rate for a federal
funds transaction quoted at 11:00 a.m. on such day received by the
Administrative Agent from a federal funds broker of recognized standing
selected by it;
provided,
further
, that ifany of the aforesaid rates as so determined be less than zero, such
rate shall be deemed to be zero for purposes of this Agreement.
"
Obligations
" means collectively, (a) the unpaid principal of and interest on (including
interest accruing after thematurity of the Loans and Reimbursement Obligations
and interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim forpost-filing or post-petition interest
is allowed in such proceeding) the Loans and Reimbursement Obligations, all
other obligations and liabilities of the Borrower to the Administrative Agent
or to any Lender, whether direct or indirect, absolute orcontingent, due or to
become due, or now existing or hereafter incurred, which arise under, out of,
or in connection with, this Agreement, any other Loan Document, the Letters of
Credit or any other document made, delivered or given in connectionherewith or
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees, charges
and disbursements of counsel to the Administrative Agent or to any Lender that
are requiredto be paid by the Borrower pursuant hereto including with respect
to Letters of Credit) or otherwise, (b) all Banking Services Obligations and
(c) all Secured Swap Obligations.
"
Other Connection Taxes
" means with respect to any Credit Party, Taxes imposed as a result of a
present or former connectionbetween such Credit Party and the jurisdiction
imposing such Tax (other than connections arising from such Credit Party
having executed, delivered, become a party to, performed its obligations
under, received payments under, received or perfected asecurity interest
under, engaged in any other transaction pursuant to, or enforced, any Loan
Document, or sold or assigned an interest in any Loan, Letter of Credit or
Loan Document).
"
Other Taxes
" means all present or future stamp, court, or documentary, intangible,
recording, filing or similar Taxes thatarise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, from the
receipt or perfection of a security interest under, or otherwise with respect
to, any Loan Document, except any such Taxes thatare Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant
to Section 2.22).
"
Overnight Bank Funding Rate
" means, for any day, the rate comprised of both overnight federal funds and
overnight eurodollartransactions denominated in Dollars by U.S.-managed
banking offices of depository institutions, as such composite rate shall be
determined by the NYFRB as set forth on the NYFRB's website from time to time,
and published on the next succeedingBusiness Day by the NYFRB as an overnight
bank funding rate.
"
Participant
" has the meaning set forth inSection 10.6(c).
"
Participant Register
" has the meaning set forth in Section 10.6(c).
35
-------------------------------------------------------------------------------
"
Patriot Act
" has the meaning set forth in Section 10.17.
"
Payment Conditions
" means (a) no Event of Default has occurred and is continuing and (b) at all
times during thePro Forma Period (i) after giving effect to the proposed event
as if it occurred on the first day of the Pro Forma Period, a daily average
pro forma Availability is greater than the greater of (x) 17.5% of the Line
Cap and (y)$45.0 million, or (ii) after giving effect to the proposed event on
a Pro Forma Basis as if it occurred on the first day of the Pro Forma Period,
(A) a daily average pro forma Availability during the Pro Forma Period greater
than thegreater of (x) 15% of the Line Cap and (y) $38.0 million and (B) a
Consolidated Fixed Charge Coverage Ratio for the most recently ended Reference
Period greater than 1.10:1.0.
"
Payment Notice
" has the meaning set forth in Section 9.6(c).
"
PBGC
" means the Pension Benefit Guaranty Corporation established under Section
4002 of ERISA and any successor entityperforming similar functions.
"
Pension Plan
" means any employee benefit plan (including a Multiple Employer Plan, butnot
including a Multiemployer Plan) that is subject to Title IV of ERISA, Section
412 of the Code or Section 302 of ERISA (i) which is or was sponsored,
maintained or contributed to by, or required to be contributed to by, any
GroupMember or any ERISA Affiliate or (ii) with respect to which any Group
Member or any ERISA Affiliate has any actual or contingent liability.
"
Permitted A/R Finance Transaction
" means the bona fide sale for cash by the Borrower or its Subsidiaries to an
unaffiliatedthird party on an arm's length and
non-recourse
basis (except for customary representations, warranties, commercial disputes
and other standard recourse or repurchase obligations in customary
transactionsof this type) of Receivables Related Assets pursuant to (i) the
Supplier Agreement, (ii) the Purchase Agreement and (iii) such other
agreements which meet the foregoing criteria in an aggregate amount not to
exceed $30,000,000 in facevalue per fiscal quarter.
"
Permitted Acquisition
" means (a) the purchase or other acquisition by the Borrower orany Restricted
Subsidiary of all or a majority of the Capital Stock of, or all or
substantially all of the property of, any Person, or of any business or
division of any Person; provided that with respect to each purchase or other
acquisition(i) after giving effect thereto, the Borrower and its Restricted
Subsidiaries are in compliance with Section 7.15, (ii) immediately before and
immediately after giving effect on a pro forma basis to any such purchase or
other acquisition,no Event of Default shall have occurred and be continuing
and (iii) any such newly created or acquired Subsidiary shall, to the extent
required by Section 6.10, comply with the requirements of Section 6.10 and (b)
the AugustaMill Acquisition.
"
Permitted Amendment
" means an amendment to this Agreement and/or the other Loan Documents,
effectedin connection with a Loan Modification Offer pursuant to Section 2.25,
providing for an extension of the commitments and scheduled maturity date
applicable to the Loans of the Accepting Lenders of a relevant Facility and,
in connectiontherewith, which may also provide for (a)(i) a change in the
Applicable Margin with respect to the Loans of the Accepting Lenders subject
to such Permitted Amendment and/or (ii) a change in the fees payable to, or
the inclusion of new fees tobe payable to, the Accepting Lenders in respect of
such Loans, (b) such amendments to this Agreement and the other Loan Documents
as shall be appropriate, in the reasonable judgment of the Administrative
Agent, to provide the rights andbenefits of this Agreement and other Loan
Documents to each new Facility of Loans and/or commitments resulting therefrom
and (c) additional amendments to the terms of this Agreement and/or the other
Loan Documents applicable to the applicableLoans of the Accepting Lenders that
are less favorable to such Accepting Lenders than the terms of this Agreement
and/or the other Loan Documents, as applicable, prior to giving effect to such
Permitted Amendments and that are reasonably acceptableto the Administrative
Agent.
36
-------------------------------------------------------------------------------
"
Permitted Amount
" means, as of any date, (a)(i) $60,000,000 so long as thePayment Conditions
are met as of such date and (ii) $5,000,000 if the Payment Conditions are not
met as of such date, in either case,
less
(b) the sum of, without duplication, (i) the aggregate outstanding amount of
Indebtedness ofRestricted Subsidiaries that are not Loan Parties subject to
Guarantee Obligations of Loan Parties under Section 7.7(c) as of such date,
(ii) the aggregate outstanding amount of loans or advances made by Loan
Parties to RestrictedSubsidiaries that are not Loan Parties under Section
7.7(e) as of such date (iii) the aggregate amount of Investments by Loan
Parties in Restricted Subsidiaries that are not Loan Parties outstanding under
Section 7.7(g) as of suchdate, and (iv) the aggregate amount of (A)
Investments in Joint Ventures and Unrestricted Subsidiaries and (B) Permitted
Acquisitions of Persons that do not, upon acquisition thereof, become
Subsidiary Guarantors, and property that isnot, upon acquisition thereof,
owned by Loan Parties outstanding under Section 7.7(u)
"
Permitted Discretion
" meansin respect of the adjustment of eligibility criteria and (without
duplication) reserves with respect to the Borrowing Base collateral, a
determination made in good faith and in the exercise of reasonable (from the
perspective of a securedasset-based lender) business judgment following (to
the extent practicable) reasonable prior notice to, and consultation with, the
Borrower and in accordance with customary business practices for asset-based
transactions.
"
Permitted Encumbrances
" means Liens permitted pursuant to Section 7.3(a), (b), (c), (d), (e) or (n);
provided
that the term "Permitted Encumbrances" shall not include any Lien securing
Indebtedness (other than with respect to Section 7.3(n)).
"
Permitted Liens
" means Liens permitted pursuant to Section 7.3.
"
Permitted
Non-ABL
Documents
" means
(a) Non-ABL
Facility Documents or (b) any document or instrument executed or delivered at
any time in connection with any and all Permitted
Non-ABL
Loans orIndebtedness securing any Permitted
Non-ABL
Liens, to the extent such are effective at the relevant time, as each may be
amended, restated, amended and restated, replaced, renewed, extended,
supplemented orotherwise modified from time to time in accordance with this
Agreement.
"
Permitted
Non-ABL
Liens
" means Liens permitted by
Section
7.3(h)(iii)
.
"
Permitted
Non-ABL
Loans
" means Indebtedness of the Borrower (a) incurred underor secured by the
Non-ABL
Facility Documents; (b) in the form of (i) one or more broadly syndicated
"term loan B" facilities or (ii) with the consent of the Required Lenders,
othersecured Indebtedness, in each case of clauses (i) and (ii), (A) in an
aggregate principal amount that would not, immediately after the incurrence
and after giving effect thereto, result in the Consolidated Fixed Charge
Coverage Ratio,calculated on a Pro Forma Basis, being less than 1.10:1.00, (B)
that is incurred when Availability, calculated on a pro forma basis after
giving effect to any use of proceeds thereof, is at least $50,000,000, (C)
that does not mature earlier thanthe date that is 91 days after the Latest
Maturity Date then in effect at the time of incurrence thereof, (D) that does
not provide for any regularly scheduled amortization in excess of amortization
customary for Indebtedness of such type inlight of then-prevailing market
conditions (as certified to by the Borrower pursuant to the following
proviso), (E) that is not guaranteed by any Person other than a Loan Party or
secured by (and any Guarantees thereof by any Group Member are notsecured by)
assets other than Collateral and (F) that contains covenants, events of
default, guarantees and other terms that are customary for similar
Indebtedness in light of then-prevailing market conditions (as certified to by
the Borrowerpursuant to the following proviso);
provided
that the (x) the liens securing such Indebtedness shall be junior, with
respect to the ABL Priority Collateral, to the Liens on the Collateral
securing the
37
-------------------------------------------------------------------------------
Obligations and (y) a representative, trustee, collateral agent, security
agent or similar Person acting on behalf of the holders of such Indebtedness
shall have become party to anIntercreditor Agreement;
provided
,
further
, that a certificate of a Responsible Officer delivered to the Administrative
Agent at least five Business Days prior to the incurrence of such Indebtedness
or the modification, refinancing,refunding, renewal or extension thereof (or
such shorter period of time as may reasonably be agreed by the Administrative
Agent), together with a reasonably detailed description of the material terms
and conditions of such resulting Indebtedness ordrafts of the material
definitive documentation relating thereto, stating that the Borrower has
determined in good faith that such terms and conditions satisfy subclauses (E)
and (F) shall be conclusive,
provided
, the Borrower shall havedelivered an officer's certificate including a
reasonably detailed calculation demonstrating compliance with subclauses (A)
and (B) hereof, certifying compliance with the remainder of the conditions in
this definition and specifying thatthe Indebtedness is being incurred in
reliance on Section 7.2(b) prior to the incurrence of such Indebtedness; and
(c) any Permitted Refinancing Indebtedness in respect of any of the foregoing.
"
Permitted Notes
" means any Permitted Unsecured Indebtedness, the 2028 Notes and any Permitted
Refinancing Indebtedness inrespect of the foregoing.
"
Permitted Refinancing Indebtedness
" means with respect to any Indebtedness of any Person (the"
Original Indebtedness
"), any modification, refinancing, refunding, replacement, renewal or
extension of such Indebtedness, in whole or in part;
provided
, that (i) no Person that is not an obligor with respect to theOriginal
Indebtedness shall be an obligor with respect to such Permitted Refinancing
Indebtedness, (ii) the final maturity of such Indebtedness is no sooner and
the weighted average life to maturity of such Indebtedness, if applicable, is
noshorter than such Original Indebtedness, (iii) in the case of any
modification, refinancing, refunding, replacement, renewal or extension of
Indebtedness incurred pursuant Section 7.2(b), the other material terms and
conditions of suchIndebtedness after giving effect to such modification,
refinancing, refunding, replacement, renewal or extension, taken as a whole
(other than interest rates, rate floors, fees and optional prepayment or
redemption terms), either (x) reflectmarket terms at the time of issuance
thereof, as reasonably determined by the Borrower in good faith, or (y) shall,
taken as a whole, not be more favorable to the lenders providing such
Indebtedness than the terms and conditions applicable tothe Original
Indebtedness, (iv) (x) in the case of any Original Indebtedness consisting of
a revolving credit facility, the committed amount in respect of the Permitted
Refinancing Indebtedness does not exceed the committed amount in respect ofthe
Original Indebtedness and (y) otherwise, the principal amount (or accreted
value, if applicable) thereof does not exceed the principal amount (or
accreted value, if applicable) of the Original Indebtedness, except in each
case by an amount(such amount, the "
Additional Permitted Amount
") equal to unpaid accrued interest and premium thereon at such time plus
reasonable fees and expenses incurred in connection with such modification,
refinancing, refunding, replacement,renewal or extension, (v) for the
avoidance of doubt, the Original Indebtedness is paid down (or, with respect
to revolving credit facilities, commitments in respect thereof are reduced
(together with, if applicable, payments of principal)) ona
dollar-for-dollar
basis by such Permitted Refinancing Indebtedness (other than by the Additional
Permitted Amount), (vi) if the Original Indebtedness shall have beensubordinated
to the Obligations, such Permitted Refinancing Indebtedness shall also be
subordinated to the Obligations on terms not less favorable in any material
respect to the Lenders and (vii) such Permitted Refinancing Indebtedness
shallnot be secured by any Lien on any asset other than the assets that
secured such Original Indebtedness (or would have been required to secure such
Original Indebtedness pursuant to the terms thereof) or, in the event Liens
securing such OriginalIndebtedness shall have been contractually subordinated
to any Lien securing the Obligations, by any Lien that shall not have been
contractually subordinated to at least the same extent, and if the Original
Indebtedness was subject to theIntercreditor Agreement, such Permitted
Refinancing Indebtedness shall be subject to the Intercreditor Agreement on
the same terms as the Original Indebtedness.
38
-------------------------------------------------------------------------------
"
Permitted Supply Chain Financing
" means transactions related to accountspayable of the Loan Parties with
respect to their supply chain (a)(i) in the ordinary course of business of the
Loan Parties or (ii) consistent with past practices of the Loan Parties on the
Closing Date and (b) that do not constitute orwould not have constituted
Indebtedness as of the Closing Date.
"
Permitted Unsecured Indebtedness
" means Indebtedness ofthe Borrower or any of its Subsidiaries (a) that is not
(and any Guarantees thereof by any Group Member are not) secured by any
collateral (including the Collateral), (b) that does not mature earlier than
the date that is 91 days after theLatest Maturity Date then in effect at the
time of incurrence thereof and has a weighted average life to maturity no
shorter than the latest maturity of any Permitted
Non-ABL
Loan outstanding at the time ofincurrence of such Indebtedness, (c) that does
not provide for any regularly scheduled amortization in excess of 1% per
annum, mandatory prepayment, redemption or repurchase (other than upon a
change of control, fundamental change, customaryasset sale or event of loss
mandatory offers to purchase and customary acceleration rights after an event
of default and, for the avoidance of doubt, rights to convert or exchange into
Capital Stock of the Borrower in the case of convertible orexchangeable
Indebtedness) prior to the date that is 91 days after the Latest Maturity Date
then in effect at the time of incurrence thereof, (d) that contains covenants,
events of default, guarantees and other terms that are customary forsimilar
Indebtedness in light of then-prevailing market conditions;
provided
that a certificate of a Responsible Officer delivered to the Administrative
Agent at least five Business Days prior to the incurrence of such Indebtedness
or themodification, refinancing, refunding, renewal or extension thereof (or
such shorter period of time as may reasonably be agreed by the Administrative
Agent), together with a reasonably detailed description of the material terms
and conditions of suchresulting Indebtedness or drafts of the material
definitive documentation relating thereto, stating that the Borrower has
determined in good faith that such terms and conditions satisfy the foregoing
requirements shall be conclusive, and(e) that is not guaranteed by any Person
other than on an unsecured basis by Group Members.
"
Person
" means anindividual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"
Plan
" means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV ofERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" asdefined in Section 3(5) of ERISA.
"
Plan Asset Regulations
" means 29 CFR (s)
2510.3-101
et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
"
Prime Rate
" means the rate of interest last quoted by The Wall Street Journal as the
"Prime Rate" in the U.S. or,if The Wall Street Journal ceases to quote such
rate, the highest per annum interest rate published by the Federal Reserve
Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest
Rates) as the "bank prime loan" rate or,if such rate is no longer quoted
therein, any similar rate quoted therein (as determined by the Administrative
Agent) or any similar release by the Federal Reserve Board (as determined by
the Administrative Agent). Each change in the Prime Rateshall be effective
from and including the date such change is publicly announced or quoted as
being effective.
"
Pro
FormaBasis
" means with respect to the calculation of any test or covenant hereunder,
such test or covenant being calculated after giving effect to (a) any
designation of a Restricted Subsidiary as an Unrestricted Subsidiary, (b)
anydesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, (c)
any Permitted Acquisition, (d) (i) any Specified Disposition (or series of
Specified Dispositions) that individually or in the aggregate exceed
$20,000,000 or(ii) a Material Disposition, and (e) any assumption,
39
-------------------------------------------------------------------------------
incurrence, repayment or other Disposition of Indebtedness (all of the
foregoing, "
Applicable Transactions
") using, for purposes of determining such compliance, the historicalfinancial
statements of all entities or assets so designated, acquired or sold (to the
extent available) and the consolidated financial statements of the Borrower
and its Restricted Subsidiaries, which shall be reformulated as if all
ApplicableTransactions during the Applicable Reference Period, or subsequent
to the Applicable Reference Period and on or prior to the date of such
calculation, had been consummated at the beginning of such period (and shall
include, with respect to anyPermitted Acquisition or Material Disposition, any
adjustments calculated in accordance with (and subject to the requirements and
limitations of) clause (i) of the definition of "Consolidated EBITDA");
provided
that withrespect to any assumption, incurrence, repayment or other Disposition
of Indebtedness (i) if such Indebtedness has a floating rate of interest, the
interest expense on such Indebtedness will be calculated as if the rate in
effect on the date ofcalculation had been the applicable rate for the entire
period (taking into account any Swap Obligations applicable to such
Indebtedness if such Swap Obligation has a remaining term as at the date of
calculation in excess of 12 months), (ii)interest on Capital Lease Obligations
shall be deemed to accrue at an interest rate reasonably determined by a
Responsible Officer to be the rate of interest implicit in such Capital Lease
Obligation in accordance with GAAP, (iii) interest onany Indebtedness under a
revolving credit facility shall be based upon the average daily balance of
such Indebtedness during the applicable period and (iv) interest on
Indebtedness that may be optionally determined at an interest rate basedupon a
factor of a prime or similar rate, a eurocurrency interbank offered rate, or
other rate, shall be deemed to have been based upon the rate actually chosen,
or, if none, then based upon such optional rate as the Borrower may designate.
For theavoidance of doubt, in calculating Fixed Charges, (x) the Fixed Charges
attributable to any Indebtedness assumed or incurred in connection with a
Permitted Acquisition consummated during the Applicable Reference Period or
subsequent to theApplicable Reference Period and on or prior to the date of
such calculation shall be included and (y) the Fixed Charges attributable to
any Indebtedness repaid or otherwise Disposed of pursuant to a Material
Disposition consummated during theApplicable Reference Period or subsequent to
the Applicable Reference Period and on or prior to the date of such
calculation shall be excluded.
"
Pro Forma Period
" means with respect to any Disposition, Restricted Payment, Investment or
prepayment or modification ofIndebtedness (any of the foregoing, a "
Specified Event
"), the period (a) commencing 30 days prior to the date such Specified Event
is proposed by the Borrower to occur and (b) ending on the date such Specified
Event isproposed by the Borrower to occur.
"
Prohibited Transaction
" has the meaning set forth in Section 406 of ERISA andSection 4975(c) of the
Code.
"
Protective Advance Exposure
" means at any time, the sum of the aggregate amount ofall outstanding
Protective Advances at such time. The Protective Advance Exposure of any
Revolving Lender at any time shall be its Revolving Percentage of the total
Protective Advance Exposure at such time.
"
Protective Advances
" has the meaning set forth in Section 2.3.
"
PTE
" means a prohibited transaction class exemption issued by the U.S. Department
of Labor, as any such exemption may beamended from time to time.
"
Purchase Agreement
" means that certain Account Purchase Agreement dated as of June 28,2018,
between the Borrower and Wells Fargo Bank, National Association, as the same
is in effect with respect to the "Maximum Amount" (as defined therein) on the
Closing Date.
"
Purchasing Borrower Party
" means any of the Borrower or any Restricted Subsidiary.
40
-------------------------------------------------------------------------------
"
Quarterly Borrowing Base Period
" means each period beginning on any daythe Administrative Agent receives
written notice that the Borrower is electing a Quarterly Borrowing Base Period
so long as during the prior 90 consecutive calendar days the aggregate
Revolving Extensions of Credit shall not have exceeded 15% of theLine Cap, and
ending on the first date thereafter on which the aggregate Revolving
Extensions of Credit exceed 15% of the Line Cap.
"
QFC
" means a "qualified financial contract" has the meaning set forth in, and
interpreted in accordance with, 12U.S.C. 5390(c)(8)(D).
"
QFC Credit Support
" has the meaning set forth in Section 10.20.
"
Qualified Capital Stock
" means Capital Stock of the Borrower other than Disqualified Capital Stock.
"
Receivables Related Assets
" means (a) accounts receivable (including all rights to payment created by or
arising fromthe sales of goods, leases of goods or the rendition of services,
no matter how evidenced (including in the form of chattel paper) and whether
or not earned by performance), (b) any interest in such accounts receivable
and all collateral securingsuch accounts receivable, all contracts and
contract rights, purchase orders, security interests, financing statements or
other documentation in respect of such accounts receivable, any guarantees,
indemnities, warranties or other obligations inrespect of such accounts
receivable, any other assets that are customarily transferred or in respect of
which security interests are customarily granted in connection with receivable
purchase arrangements involving receivables similar to suchaccounts receivable
and any collections or proceeds of any of the foregoing, and (c) any bank
account or lock box maintained primarily for the purpose of receiving
collections of accounts receivables subject to a Permitted A/R FinanceTransactio
n.
"
Recovery Event
" means any settlement of or payment in respect of any property or casualty
insurance claimor any condemnation proceeding relating to any asset of any
Group Member (other than, while Permitted
Non-ABL
Loans are outstanding, assets that constitute
Non-ABL
Priority Collateral).
"
Reference Period
" means each period of four consecutive fiscal quarters of the Borrower.
"
Reference Time
" with respect to any setting of the then-current Benchmark means (1) if such
Benchmark is the Term SOFRRate, 5:00 a.m. (Chicago time) on the day that is
two U.S. Government Securities Business Days preceding the date of such
setting or (2) if such Benchmark is not the Term SOFR Rate, the time
determined by the Administrative Agent in itsreasonable discretion.
"
Register
" has the meaning set forth in Section 10.6(b).
"
Regulation D
" means Regulation D of the Federal Reserve Board, as in effect from time to
time and all official rulings andinterpretations thereunder or thereof.
"
Regulation T
" means Regulation T of the Federal Reserve Board, as in effect fromtime to
time and all official rulings and interpretations thereunder or thereof.
"
Regulation U
" means Regulation U ofthe Federal Reserve Board, as in effect from time to
time and all official rulings and interpretations thereunder or thereof.
"
Regulation X
" means Regulation X of the Federal Reserve Board, as in effect from time to
time and all official rulingsand interpretations thereunder or thereof.
41
-------------------------------------------------------------------------------
"
Reimbursement Obligation
" means the obligation of the Borrower toreimburse the Issuing Lender pursuant
to Section 3.5 for amounts drawn under Letters of Credit.
"
Related Parties
"with respect to any specified Person, such Person's Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person's Affiliates.
"
Relevant Governmental Body
" means the Federal Reserve Board and/or the NYFRB or a committee officially
endorsed or convenedby the Federal Reserve Board and/or the NYFRB or, in each
case, any successor thereto.
"
Relevant Rate
" means withrespect to any Term Benchmark Borrowing, the Adjusted Term SOFR
Rate.
"
Rent Reserve
" means with respect to any store,warehouse distribution center, regional
distribution center or depot where any Inventory subject to Liens arising by
operation of law is located, a reserve equal to three months' rent at such
store, warehouse distribution center, regionaldistribution center or depot.
"
Report
" means reports prepared by the Administrative Agent or another Person showing
theresults of appraisals, field examinations or audits pertaining to the
assets of the Loan Parties from information furnished by or on behalf of the
Borrower, after the Administrative Agent has exercised its rights of
inspection pursuant to thisAgreement, which Reports may be distributed to the
Lenders by the Administrative Agent.
"
Reportable Event
" means any ofthe events set forth in Section 4043(c) of ERISA or the
regulations issued thereunder, with respect to a Pension Plan, other than
those events as to which notice is waived pursuant to DOL Reg. Section 4043 as
in effect on the Closing Date(no matter how such notice requirement may be
changed in the future).
"
Reported Banking Services Obligations
" meansBanking Services Obligations of any Group Member owing to one or more
Lenders or their respective Affiliates;
provided
that, as of any date of determination, such obligations shall constitute
Reported Banking Services Obligations solely tothe extent that the Lender
party thereto or its Affiliate (other than JPMCB) shall have reported the
amount of such outstanding obligations to the Administrative Agent as of the
last day of the previous fiscal quarter on or prior to the date that is15 days
following the end of such fiscal quarter (or (x) prior to the date that is 15
days following the end of the first fiscal quarter following the Closing Date,
within 15 days of the Closing Date such Lender or Affiliate shall have
reportedthe amount of such outstanding obligations as of the Closing Date, and
(y) within 10 days of any request therefor by the Administrative Agent, such
Lender or Affiliate shall have reported the amount of such outstanding
obligations as of anyother date reasonably requested by the Administrative
Agent).
"
Reported Secured Swap Obligations
" means Secured SwapObligations of any Group Member owing to one or more
Lenders or their respective Affiliates;
provided
that, as of any date of determination, such obligations shall constitute
Reported Secured Swap Obligations solely to the extent that as ofany date of
determination, such Lender party thereto or its Affiliate (other than JPMCB)
shall have reported the amount of such outstanding Swap Obligations to the
Administrative Agent as of the last day of the previous fiscal quarter on or
prior tothe date that is 15 days following the end of such fiscal quarter (or
(x) prior to the date that is 15 days following the end of the first fiscal
quarter following the Closing Date, within 30 days of the Closing Date such
Lender or Affiliateshall have reported the amount of such outstanding
obligations as of the Closing Date and (y) within 10 days of any request
therefor by the Administrative Agent, such Lender or Affiliate shall have
reported the amount of such outstanding SwapObligations as of any other date
reasonably requested by the Administrative Agent).
42
-------------------------------------------------------------------------------
"
Required Lenders
" means Lenders having more than 50% of the TotalCommitments then in effect
or, if the Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding;
provided
that
, the Required Lenders must include (a) at any time there are two (2) or fewer
un-affiliated
Lenders, all of the Lenders and (b) at any time there are more than two
(2) un-affiliated
Lenders, two (2) or more
un-affiliated
Lenders.
"
Requirement of Law
" means as to any Person, theCertificate of Incorporation and
By-Laws
or other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court or
otherGovernmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property
is subject.
"
Reserves
" means any and all reserves which the Administrative Agent deems necessary,
in its Permitted Discretion (following(to the extent practicable) reasonable
prior notice to, and consultation with, the Borrower), to maintain (including,
without limitation, an availability reserve, reserves for accrued and unpaid
interest on the Obligations, Banking ServicesReserves, reserves for loggers'
liens, reserves for variance between perpetual inventory report and the
general ledger of the Loan Parties, volatility reserves, Rent Reserves,
reserves for dilution of Accounts, reserves for Inventory shrinkage,reserves
for changes in eligibility criteria, reserves for customs charges and shipping
charges related to any Inventory in transit, reserves for Swap Obligations,
reserves for contingent liabilities of any Loan Party, reserves for uninsured
lossesof any Loan Party, reserves for uninsured, underinsured,
un-indemnified
or under-indemnified liabilities or potential liabilities with respect to any
litigation and reserves for taxes, fees, assessments, andother governmental
charges) with respect to the Collateral or any Loan Party.
Any changes to reserves shall be effective four Business Days after delivery
of notice thereof to the Borrower and the Lenders;
provided
that if consultationwith the Borrower and/or notice to the Borrower and the
Lenders is not practicable or if failure to implement any such change within a
shorter time period would, in the good faith judgment of the Administrative
Agent, reasonably be expected toresult in a Material Adverse Effect or
materially and adversely affect the Collateral or the rights of the Lenders
under the Loan Documents, such change may be implemented within a shorter time
as determined by the Administrative Agent in itsPermitted Discretion;
provided
,
further
, that such changes will become effective immediately prior to any Borrowing
that occurs during such four Business Day period.
"
Resolution Authority
" means an EEA Resolution Authority or, with respect to any UK Financial
Institution, a UK ResolutionAuthority.
"
Responsible Officer
" means the chief executive officer, president or chief financial officer of
theBorrower, but in any event, with respect to financial matters, the chief
financial officer of the Borrower.
"
Restricted DebtPayment
" has the meaning set forth in Section 7.8(a).
"
Restricted Payments
" has the meaning set forth inSection 7.6.
"
Restricted Subsidiary
" means any Subsidiary of the Borrower other than an Unrestricted Subsidiary.
43
-------------------------------------------------------------------------------
"
Revolving Commitment Period
" means (a) the period from and includingthe Closing Date to the Revolving
Termination Date or (b) with respect to any Lender that has elected to make
revolving credit loans available to the Borrower until an Elected Termination
Date pursuant to Section 2.24(e), the period fromand including the Closing
Date to the Revolving Termination Date.
"
Revolving Extensions of Credit
" means as to anyRevolving Lender at any time, an amount equal to the sum of
(a) the aggregate principal amount of all Revolving Loans held by such Lender
then outstanding, (b) such Lender's Revolving Percentage of the L/C
Obligations then outstandingand (c) such Lender's Revolving Percentage of the
Protective Advances then outstanding.
"
Revolving Lender
"means each Lender that has a Commitment or that holds Revolving Loans.
"
Revolving Loans
" has the meaning set forth inSection 2.1(a).
"
Revolving Percentage
" means as to any Revolving Lender at any time, the percentage which
suchLender's Commitment then constitutes of the Total Commitments or, at any
time after the Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender's Revolving Loans then
outstandingconstitutes of the aggregate principal amount of the Revolving
Loans then outstanding, provided, that, in the event that the Revolving Loans
are paid in full prior to the reduction to zero of the Total Revolving
Extensions of Credit, the RevolvingPercentages shall be determined in a manner
designed to ensure that the other outstanding Revolving Extensions of Credit
shall be held by the Revolving Lenders on a comparable basis. Notwithstanding
the foregoing, in the case of Section 2.23when a Defaulting Lender shall
exist, Revolving Percentages shall be determined without regard to any
Defaulting Lender's Commitment.
"
Revolving Termination Date
" means November 7, 2027.
"
S&P
" means Standard & Poor's Rating Services, a Standard & Poor's Financial
Services LLCbusiness.
"
Sanctioned Country
" means, at any time, a country, region or territory which is itself the
subject or targetof any Sanctions (at the time of this Agreement, the
so-called
Donetsk People's Republic, the
so-called
Luhansk People's Republic, the Crimea Region ofUkraine, Cuba, Iran, North
Korea and Syria).
"
Sanctioned Person
" means, at any time, (a) any Person listed in anySanctions-related list of
designated Persons maintained by the Office of Foreign Assets Control of the
U.S. Department of the Treasury, the U.S. Department of State, the United
Nations Security Council, the European Union, any European Union memberstate,
His Majesty's Treasury of the United Kingdom or other relevant sanctions
authority, (b) any Person operating, organized or resident in a Sanctioned
Country, (c) any Person owned or controlled by any such Person or
Personsdescribed in the foregoing clauses (a) or (b), or (d) any Person
otherwise the subject of any Sanctions.
"
Sanctions
" means all economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to timeby (a) the U.S. government,
including those administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury or the U.S. Department of State, or (b) the
United Nations Security Council, the European Union, anyEuropean Union member
state, His Majesty's Treasury of the United Kingdom or other relevant
sanctions authority.
"
ScheduledBorrowing Base Delivery Date
" means any date on which the Borrower is obligated to deliver a Borrowing
Base Certificate pursuant to Section 6.2(g).
44
-------------------------------------------------------------------------------
"
SEC
" means the Securities and Exchange Commission, any successor theretoand any
analogous Governmental Authority of the United States of America.
"
Secured Parties
" has the meaning set forth inthe Guarantee and Collateral Agreement.
"
Secured Swap Obligations
" means Swap Obligations of any Loan Party owing to oneor more Lenders or
their respective Affiliates;
provided
that at or prior to the time that any transaction relating to such Swap
Obligation is executed (or, if later, the Closing Date) the Borrower (other
than for transactions with JPMCB andits Affiliates) and the Lender party
thereto or its Affiliate (other than JPMCB) shall have delivered written
notice to the Administrative Agent that such a transaction has been entered
into and that it constitutes a Secured Swap Obligation entitledto the benefits
of the Security Documents.
"
Security Documents
" means the collective reference to the Guarantee andCollateral Agreement, any
Deposit Account Control Agreements and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Partyunder any
Loan Document.
"
SOFR
" means a rate equal to the secured overnight financing rate as administered
by the SOFRAdministrator.
"
SOFR Administrator
" means the NYFRB (or a successor administrator of the secured overnight
financingrate).
"
SOFR Administrator's Website
" means the NYFRB's website, currently at http://www.newyorkfed.org, orany
successor source for the secured overnight financing rate identified as such
by the SOFR Administrator from time to time.
"
Solvent
" means, when used with respect to any Person, that, as of any date of
determination, (a) the fair value of theassets of such Person, at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or
otherwise, (b) the present fair saleable value of the assets of such Person
will be greater than the amount that will be required topay the probable
liabilities on its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured,
(c) such Person will be able to pay its debts and liabilities,subordinated,
continent or otherwise, as such debts and liabilities become absolute and
matured and (d) such Person will not have an unreasonably small capital with
which to conduct the business in which it is engaged as such business
isconducted as of such date of determination and proposed to be conducted
following such date. The amount of any contingent liability at any time shall
be computed as the amount that, in light of all of the facts and circumstances
existing at suchtime, represents the amount that can reasonably be expected to
become an actual or matured liability.
"
SpecifiedDisposition
" means any Disposition to the extent made in reliance on the exception in,
and subject to the conditions of, Section 7.5(o)(ii) that has been disclosed
in writing to the Administrative Agent and the Lenders on or prior tothe Fifth
Amendment Effective Date.
"
Specified Event of Default
" means an Event of Default under clauses (a) or (f)of Section 8.
"
Subsequent Transaction
" has the meaning set forth in the definition of "Pro Forma Basis".
45
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"
Subordinated Indebtedness
" means any Indebtedness of any Group Member thatis expressly subordinated in
right of payment to the Obligations;
provided
that, for the avoidance of doubt, any Permitted
Non-ABL
Loan or Indebtedness secured by Permitted
Non-ABL
Liens shall not be considered Subordinated Indebtedness.
"
Subsidiary
" means asto any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only byreason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which
is otherwise controlled, directly orindirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of theBorrower.
"
Subsidiary Guarantor
" means (i) each Restricted Subsidiary of the Borrower that is a Domestic
Subsidiary(other than any Excluded Subsidiary) and (ii) each other Restricted
Subsidiary that is an obligor under or guarantor in respect of Permitted
Non-ABL
Loans or any Permitted Refinancing Indebtedness inrespect thereof.
"
Supermajority Lenders
" means Lenders having more than 66 2/3% of the Total Commitments then in
effector, if the Commitments have been terminated, the Total Revolving
Extensions of Credit then outstanding;
provided
that
, the Supermajority Lenders must include (a) at any time there are two (2) or
fewer
un-affiliated
Lenders, all of the Lenders and (b) at any time there are more than two
(2) un-affiliated
Lenders, two or more
un-affiliated
Lenders.
"
Supplier Agreement
" means that certain SupplierAgreement dated as of June 11, 2019 between the
Borrower and Citibank, N.A and any branch, subsidiary, or affiliate of
Citibank acting as a purchaser thereunder, solely with respect to the Buyer
identified on the pricing schedule thereto on theClosing Date.
"
Supported QFC
" has the meaning set forth in Section 10.20.
"
Swap
" means any agreement, contract, or transaction that constitutes a "swap"
within the meaning of section 1a(47)of the Commodity Exchange Act.
"
Swap Agreement
" means any agreement with respect to any swap, forward, future orderivative
transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of
economic,financial or pricing risk or value or any similar transaction or any
combination of these transactions;
provided
that no phantom stock or similar plan providing for payments only on account
of services provided by current or former directors,officers, employees or
consultants of the Borrower or any of its Subsidiaries shall be a "Swap
Agreement".
"
SwapObligation
" means with respect to any Person, any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modificationsthere
of and substitutions therefor), under (a) any and all Swap Agreements, and (b)
any and all cancellations, buy backs, reversals, terminations or assignments
of any Swap Agreement transaction.
"
Syndication Agent
" means the Syndication Agent identified on the cover page of this Agreement.
46
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"
Taxes
" means all present or future taxes, levies, imposts, duties,deductions,
withholdings (including backup withholding), assessments, fees or other
charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.
"
Tax Incentive Transaction
" shall mean any arrangement between any Loan Party and a Governmental
Authority (including anydevelopment authority) for the purpose of providing
property tax incentives to such Loan Party structured as a Sale-Leaseback
Transaction whereby such Governmental Authority (a) acquires property from or
on behalf of such Loan Party,(ii) leases such property back to a Loan Party
(and such leasehold interest is pledged to the Administrative Agent pursuant
to documentation in form and substance reasonably satisfactory to the
Administrative Agent), (iii) if and to the extentsuch Governmental Authority
issues the bonds to finance such acquisition, 100% of such bonds are purchased
and held by a Loan Party, (iv) the rental payments on the lease (disregarding
any amount that is concurrently repaid to a Loan Party inthe form of debt
service on any bonds or otherwise) does not exceed amounts such Loan Party
would have paid in taxes had the Sale-Leaseback Transaction not occurred, (v)
the use of any assets by the Borrower or any of its Subsidiaries is notlimited
in any material respect in connection with such transaction, (vi) the
aggregate amount of all such bonds and other obligations of the Borrower and
its Subsidiaries shall not exceed $350,000,000 at any one time outstanding
and(vii) such Loan Party has the option to terminate its lease and reacquire
the property for nominal consideration (disregarding any additional
consideration that is concurrently repaid to a Loan Party in the form of
repayment of any bonds orotherwise) at any time; provided that if at any time
any of the foregoing conditions shall cease to be satisfied, such transaction
shall cease to be a Tax Incentive Transaction. For purposes of this
definition, "Sale-Leaseback Transaction"shall mean any arrangements with any
Person providing for the leasing by a Loan Party or subsidiary of real or
personal property which has been or is to be sold or transferred by such Loan
Party or such subsidiary to such person or to any otherperson to whom funds
have been or are to be advanced by such person in connection therewith. For
the avoidance of doubt, the transactions contemplated by the Augusta Mill Bond
Documents (as defined in the Augusta Acquisition Agreement as in effecton the
Fifth Amendment Effective Date) shall constitute a Tax Incentive Transaction.
"
Term Intercreditor Agreement
"means that certain Amended and Restated
ABL/Non-ABL
Intercreditor Agreement, dated as of the Fifth Amendment Effective Date, among
the Administrative Agent, the
Non-ABL
Representative and the Loan Parties party thereto.
"
Term Revolver Facility
" means the term revolver credit facilitygoverned by the Existing
Non-ABL
Credit Agreement, and for the avoidance of doubt, shall not include or be
deemed to include the Farm Credit Term Loan Facility or the Commercial Bank
Term Loan Facility.
"
Term SOFR Determination Day
" has the meaning assigned to it under the definition of Term SOFR Reference
Rate.
"
Term SOFR Rate
" means, with respect to any Term Benchmark Borrowing and for any tenor
comparable to the applicable InterestPeriod, the Term SOFR Reference Rate at
approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business
Days prior to the commencement of such tenor comparable to the applicable
Interest Period, as such rate is published by the CMETerm SOFR Administrator.
"
Term SOFR Reference Rate
" means, for any day and time (such day, the "
Term SOFRDetermination Day
"), with respect to any Term Benchmark Borrowing denominated in Dollars and
for any tenor comparable to the applicable Interest Period, the rate per annum
published by the CME Term SOFR Administrator and identified by theAdministrative
Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York
City time) on such Term SOFR Determination Day, the "Term SOFR Reference Rate"
for the applicable tenor has not been published by the CME TermSOFR
Administrator and a
47
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Benchmark Replacement Date with respect to the Term SOFR Rate has not
occurred, then, so long as such day is otherwise a U.S. Government Securities
Business Day, the Term SOFR Reference Rate forsuch Term SOFR Determination Day
will be the Term SOFR Reference Rate as published in respect of the first
preceding U.S. Government Securities Business Day for which such Term SOFR
Reference Rate was published by the CME Term SOFR Administrator, solong as
such first preceding U.S. Government Securities Business Day is not more than
five (5) U.S. Government Securities Business Days prior to such Term SOFR
Determination Day.
"
Third Amendment
" means the Third Amendment to ABL Credit Agreement, dated as of November 7,
2022, among the Borrower,the Subsidiary Guarantors party thereto, the
Administrative Agent and the Lenders party thereto.
"
Third Amendment EffectiveDate
" means the "Third Amendment Effective Date" as defined in the Third Amendment.
"
TotalCommitments
" means at any time, the aggregate amount of the Commitments then in effect.
The original amount of the Total Commitments on the Fifth Amendment Effective
Date is $375,000,000.
"
Total Revolving Extensions of Credit
" means at any time, the aggregate amount of the Revolving Extensions of
Credit of theRevolving Lenders outstanding at such time.
"
Transactions
" means the execution, delivery and performance by the Borrowerand the other
Loan Parties of this Agreement, the borrowing of Loans hereunder and the use
of proceeds thereof.
"
Transferee
" means any Assignee or Participant.
"
Type
" means, when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on theLoans comprising such Borrowing,
is determined by reference to the Adjusted Term SOFR Rate or the Alternate
Base Rate.
"
UKFinancial Institutions
" means any BRRD Undertaking (as such term is defined under the PRA Rulebook
(as amended from time to time) promulgated by the United Kingdom Prudential
Regulation Authority) or any person falling within IFPRU 11.6 ofthe FCA
Handbook (as amended from time to time) promulgated by the United Kingdom
Financial Conduct Authority, which includes certain credit institutions and
investment firms, and certain affiliates of such credit institutions or
investment firms.
"
UK Resolution Authority
" means the Bank of England or any other public administrative authority
having responsibilityfor the resolution of any UK Financial Institution.
"
Unadjusted Benchmark Replacement
" means the applicable BenchmarkReplacement excluding the related Benchmark
Replacement Adjustment.
"
United States
" means the United States of America.
"
Unrestricted Cash
" means unrestricted cash and Cash Equivalents owned by any Group Member and
not controlled by orsubject to any Lien or other preferential arrangement in
favor of any creditor (other than Liens created under the Security Documents
or permitted by Section 7.3(h)(iii) and Liens of the type referred to in
Section 7.3(u)).
48
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"
Unrestricted Subsidiary
" means (a) any Subsidiary of the Borrowerthat is designated as an
Unrestricted Subsidiary by the Borrower pursuant to Section 6.11 subsequent to
the Closing Date and (b) any Subsidiary of an Unrestricted Subsidiary.
"
U.S. Government Securities Business Day
" means any day except for (i) a Saturday, (ii) a Sunday or (iii) aday on
which the Securities Industry and Financial Markets Association recommends
that the fixed income departments of its members be closed for the entire day
for purposes of trading in United States government securities.
"
U.S. Person
" means a "United States person" within the meaning of Section 7701(a)(30) of
the Code.
"
U.S. Special Resolution Regime
" has the meaning set forth in Section 10.20.
"
U.S. Tax Compliance Certificate
" has the meaning set forth in Section 2.19(f)(ii)(B)(3).
"
Wholly Owned Subsidiary
" means as to any Person, any other Person all of the Capital Stock of which
(other thandirectors' qualifying shares required by law) is owned by such
Person directly and/or through other Wholly Owned Subsidiaries.
"
Withdrawal Liability
" means liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from suchMultiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
"
Write-Down and ConversionPowers
" means, (a) with respect to any EEA Resolution Authority, the write-down and
conversion powers of such EEA Resolution Authority from time to time under the
Bail-In
Legislation for theapplicable EEA Member Country, which write-down and
conversion powers are described in the EU
Bail-In
Legislation Schedule, and (b) with respect to the United Kingdom, any powers
of the applicableResolution Authority under the
Bail-In
Legislation to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which that
liability arises,to convert all or part of that liability into shares,
securities or obligations of that person or any other person, to provide that
any such contract or instrument is to have effect as if a right had been
exercised under it or to suspend anyobligation in respect of that liability or
any of the powers under that
Bail-In
Legislation that are related to or ancillary to any of those powers.
1.2
Classification of Loans and Borrowings
. For purposes of this Agreement, Loans may be classified and referred to by
Type (e.g., a"Term SOFR Loan"). Borrowings also may be classified and referred
to by Type (e.g., a "Term SOFR Borrowing").
1.3
Other Definitional Provisions
. (a) Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in the other Loan Documents or any
certificate or other document made or deliveredpursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or
other document made or deliveredpursuant hereto or thereto, (i) accounting
terms relating to any Group Member not defined in Section 1.1 and accounting
terms partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to themunder GAAP (
provided
that all terms of an accounting or financial nature used herein shall be
construed, and all computations of amounts and ratios referred to herein shall
be made, without giving effect to (x) any election underAccounting Standards
Codification
825-10-25
(previously referred to as Statement of Financial Accounting Standards 159)
(or any other Accounting Standards Codificationor Financial Accounting
Standard having a similar result or effect) to value any
49
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Indebtedness or other liabilities of the Borrower or any Subsidiary at "fair
value", as defined therein and (y) any treatment of Indebtedness in respect of
convertible debtinstruments under Accounting Standards Codification
470-20
(or any other Accounting Standards Codification or Financial Accounting
Standard having a similar result or effect) to value any such Indebtedness ina
reduced or bifurcated manner as described therein, and such Indebtedness shall
at all times be valued at the full stated principal amount thereof, (ii) the
words "include", "includes" and "including" shall bedeemed to be followed by
the phrase "without limitation", (iii) the word "incur" shall be construed to
mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words "incurred" and"incurrence" shall have correlative
meanings), (iv) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and
intangible assets and properties,including cash, Capital Stock, securities,
revenues, accounts, leasehold interests and contract rights, (v) references to
agreements or other Contractual Obligations shall, unless otherwise specified,
be deemed to refer to such agreements orContractual Obligations as amended,
supplemented, restated or otherwise modified from time to time and (vi) the
concept of "letters of credit" shall be construed to include banker's
acceptances.
(c) The words "hereof", "herein" and "hereunder" and words of similar import,
when used in this Agreement, shallrefer to this Agreement as a whole and not
to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to
both the singular and plural forms of such terms.
(e) Unless otherwise defined herein or the context otherwise requires, terms
for which meanings are provided in the UCC are used in thisAgreement,
including its preamble and recitals, with such meanings.
1.4
Interest Rates; Benchmark Notification
. The interest rateon a Loan denominated in dollars may be derived from an
interest rate benchmark that may be discontinued or is, or may in the future
become, the subject of regulatory reform. Upon the occurrence of a Benchmark
Transition Event, Section 2.16(b)provides a mechanism for determining an
alternative rate of interest. The Administrative Agent does not warrant or
accept any responsibility for, and shall not have any liability with respect
to, the administration, submission, performance or anyother matter related to
any interest rate used in this Agreement, or with respect to any alternative
or successor rate thereto, or replacement rate thereof, including without
limitation, whether the composition or characteristics of any suchalternative,
successor or replacement reference rate will be similar to, or produce the
same value or economic equivalence of, the existing interest rate being
replaced or have the same volume or liquidity as did any existing interest
rate prior toits discontinuance or unavailability. The Administrative Agent
and its affiliates and/or other related entities may engage in transactions
that affect the calculation of any interest rate used in this Agreement or any
alternative, successor oralternative rate (including any Benchmark
Replacement) and/or any relevant adjustments thereto, in each case, in a
manner adverse to the Borrower. The Administrative Agent may select
information sources or services in its reasonable discretion toascertain any
interest rate used in this Agreement, any component thereof, or rates
referenced in the definition thereof, in each case pursuant to the terms of
this Agreement, and shall have no liability to the Borrower, any Lender or any
otherperson or entity for damages of any kind, including direct or indirect,
special, punitive, incidental or consequential damages, costs, losses or
expenses (whether in tort, contract or otherwise and whether at law or in
equity), for any error orcalculation of any such rate (or component thereof)
provided by any such information source or service.
1.5
Letter of CreditAmounts
. Unless otherwise specified herein, the amount of a Letter of Credit at any
time shall be deemed to be the amount of such Letter of Credit available to be
drawn (without regard to any
50
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conditions contained in such Letter of Credit); provided that with respect to
any Letter of Credit that, by its terms provides for one or more automatic
increases in the available amount thereof,the amount of such Letter of Credit
shall be deemed to be the maximum amount of such Letter of Credit after giving
effect to all such increases, whether or not such maximum amount is available
to be drawn at such time. For clarity, the calculationof the amount of such
Letter of Credit shall take into account any reduction on account of (a) any
permanent reduction of such Letter of Credit or (b) any amount that is drawn,
reimbursed and no longer available under such Letter ofCredit.
1.6
Limited Condition Transactions
. Notwithstanding anything in this Agreement or any Loan Document to the
contrary when(i) calculating any applicable ratio or financial test or
determining whether any Default or Event of Default has occurred, is
continuing or would result from any action, in each case, pursuant to Section
7.2, Section 7.3,Section 7.5, Section 7.6 or Section 7.7 in connection with
the incurrence of Indebtedness, the creation of Liens, the making of any
Disposition, the making of an Investment, the making of a Restricted Payment,
the designation of aSubsidiary as restricted or unrestricted or the repayment
of Indebtedness (each, a "
Specified Transaction
") or (ii) determining the accuracy of any representation or warranty, in each
case of clauses (i) and (ii), inconnection with a Limited Condition
Transaction, the date of determination of such ratio or financial test, the
accuracy of such representation or warranty (but taking into account any
earlier date specified therein) or whether any Default or Eventof Default has
occurred, is continuing or would result therefrom shall, at the option of the
Borrower (the Borrower's election to exercise such option in connection with
any Limited Condition Transaction, an "
LCT Election
"), bedeemed to be the date the definitive agreements for such Limited
Condition Transaction are entered into (the "
LCT Test Date
"). If on a Pro Forma Basis after giving effect to such Limited Condition
Transaction and the othertransactions to be entered into in connection
therewith (including any incurrence of Indebtedness and the use of proceeds
thereof) such ratios, financial tests, representations and warranties and
absence of defaults are calculated as if such LimitedCondition Transaction or
other transactions had occurred at the beginning of the most recent Reference
Period ending prior to the LCT Test Date for which financial statements are
available, the Borrower could have taken such action on the relevantLCT Test
Date in compliance with the applicable ratios or other provisions, such
provisions shall be deemed to have been complied with. For the avoidance of
doubt, (i) if any of such ratios, financial tests, representations and
warranties orabsence of defaults are exceeded or breached as a result of
fluctuations in such ratio (including due to fluctuations in Consolidated
EBITDA), a change in facts and circumstances or other provisions at or prior
to the consummation of the relevantLimited Condition Transaction, such ratios,
representations and warranties and absence of defaults will not be deemed to
have been exceeded, breached, or otherwise failed as a result of such
fluctuations or changed circumstances solely for purposesof determining
whether the Limited Condition Transaction and any related transactions is
permitted hereunder and (ii) such ratios and compliance with such conditions
shall not be tested at the time of consummation of such Limited ConditionTransac
tion or related Specified Transactions. If the Borrower has made an LCT
Election for any Limited Condition Transaction, then in connection with any
subsequent calculation of any ratio or basket availability with respect to any
subsequentacquisition, Investment that the Borrower or a Restricted Subsidiary
is contractually committed to consummate on or following the relevant LCT Test
Date and prior to the earlier of the date on which such Limited Condition
Transaction is consummatedor the date that the definitive agreement for such
Limited Condition Transaction is terminated or expires without consummation of
such Limited Condition Transaction, any such ratio or basket shall be
calculated on a Pro Forma Basis both(i) assuming such Limited Condition
Transaction and other transactions in connection therewith (including any
incurrence of Indebtedness and the use of proceeds thereof) have been
consummated and (ii) assuming such Limited ConditionTransaction and other
transactions in connection therewith (including any incurrence of Indebtedness
and the use of proceeds thereof) have not been consummated.
1.7
Divisions
. For all purposes under the Loan Documents, in connection with any division
or plan of division under Delaware law (orany comparable event under a
different jurisdiction's laws): (a) if any asset, right, obligation or
liability of any Person becomes the asset, right, obligation or
51
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liability of a different Person, then it shall be deemed to have been
transferred from the original Person to the subsequent Person, and (b) if any
new Person comes into existence, such newPerson shall be deemed to have been
organized and acquired on the first date of its existence by the holders of
its Capital Stock at such time.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1
Commitments
. (a) Subject to the terms and conditions hereof, each Revolving Lender
severally agrees to make revolving creditloans ("
Revolving Loans
") to the Borrower from time to time during the Revolving Commitment Period in
an aggregate principal amount at any one time outstanding which would not
result in either (i) the Revolving Loans of suchLender when added to the sum
of (x) such Lender's Revolving Percentage of the L/C Obligations then
outstanding, (y) [
reserved
] and (z) such Lender's Protective Advance Exposure then outstanding,
exceeding the amount ofsuch Lender's Commitment or (ii) the Total Revolving
Extensions of Credit exceeding the Line Cap, subject to the authority of the
Administrative Agent, in its sole discretion, to make Protective Advances
pursuant to the terms ofSection 2.3. During the Revolving Commitment Period
the Borrower may use the Commitments by borrowing, prepaying the Revolving
Loans in whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof. The RevolvingLoans may from time to time be Term SOFR
Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.12.
(b) The Borrower shall repay all outstanding Revolving Loans on the Revolving
Termination Date.
2.2
Procedure for Revolving Loan Borrowing
. The Borrower may borrow under the Commitments during the Revolving
Commitment Period on anyU.S. Government Securities Business Day, provided that
the Borrower shall give the Administrative Agent a Borrowing Request
substantially in the form of Exhibit A attached hereto (which notice must be
received by the Administrative Agent prior to(a) 12:00 Noon, New York City
time three U.S. Government Securities Business Days prior to the requested
Borrowing Date, in the case of Term SOFR Loans, or (b) 12:00 Noon, New York
City time, the date of the requested Borrowing Date, in the case ofABR Loans)
(provided that any such notice of a borrowing of Revolving Loans that are ABR
Loans to finance payments required by Section 3.5 must be given not later than
12:00 Noon, New York City time, on the date of the proposed borrowing),specifyin
g (i) the amount and Type of Revolving Loans to be borrowed, (ii) the
requested Borrowing Date (which may be the same day as the day of the
Borrowing Request in the case of ABR Loans) and (iii) in the case of Term SOFR
Loans,the respective amounts of each such Type of Loan and the respective
lengths of the initial Interest Period therefor. Each borrowing under the
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$1,000,000 or a wholemultiple thereof (or, if the then aggregate Available
Commitments are less than $1,000,000, such lesser amount) and (y) in the case
of Term SOFR Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any suchnotice from the Borrower, the Administrative
Agent shall promptly notify each Revolving Lender thereof. Each Revolving
Lender will make the amount of its pro rata share of each borrowing available
to the Administrative Agent for the account of theBorrower at the Funding
Office prior to 2:00 P.M., New York City time, on the Borrowing Date requested
by the Borrower in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the Borrower by theAdministrative
Agent crediting the account of the Borrower on the books of such office with
the aggregate of the amounts made available to the Administrative Agent by the
Revolving Lenders and in like funds as received by the Administrative Agent.
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2.3
Protective Advances
.
(a) Subject to the limitations set forth below,the Administrative Agent is
authorized by the Borrower and the Lenders, from time to time in the
Administrative Agent's Permitted Discretion (but shall have absolutely no
obligation to), to make Loans to the Borrower, on behalf of all Lenders,which
the Administrative Agent, in its Permitted Discretion, deems necessary or
desirable (i) to preserve or protect the Collateral, or any portion thereof,
(ii) to enhance the likelihood of, or maximize the amount of, repayment of
theLoans and other Obligations, or (iii) to pay any other amount chargeable to
or required to be paid by the Borrower pursuant to the terms of this
Agreement, including payments of reimbursable expenses (including costs, fees,
and expenses asdescribed in Section 10.5) and other sums payable under the
Loan Documents (any of such Loans are herein referred to as "
Protective Advances
");
provided
that, as of the date of the making of any Protective Advance, theaggregate
amount of outstanding Protective Advances shall not exceed 10% of the
Commitments outstanding as of such date;
provided further
that the Total Revolving Extensions of Credit outstanding any time shall not
exceed the TotalCommitments. Protective Advances may be made even if the
conditions precedent set forth in Section 5.2 have not been satisfied. The
Protective Advances shall be secured by the Liens in favor of the
Administrative Agent in and to the Collateraland shall constitute Obligations
hereunder. All Protective Advances shall be ABR Loans. The Administrative
Agent's authorization to make Protective Advances may be revoked at any time
by the Required Lenders. Any such revocation must be inwriting and shall
become effective prospectively upon the Administrative Agent's receipt
thereof. At any time (a) the amount equal to (i) the Line Cap
minus
(ii) the Total Revolving Extensions of Credit then outstanding(calculated,
with respect to any Defaulting Lender, as if such Defaulting Lender had funded
its Revolving Percentage of all outstanding Revolving Loans) exceeds the
amount of any Protective Advance and (b) the conditions precedent set forth
inSection 5.2 have been satisfied, the Administrative Agent may request the
Revolving Lenders to make a Revolving Loan to repay a Protective Advance. At
any other time the Administrative Agent may require the Lenders to fund their
riskparticipations described in Section 2.3(b).
(b) Upon the making of a Protective Advance by the Administrative Agent
(whether beforeor after the occurrence of a Default), each Lender shall be
deemed, without further action by any party hereto, to have unconditionally
and irrevocably purchased from the Administrative Agent, without recourse or
warranty, an undivided interest andparticipation in such Protective Advance in
proportion to its Revolving Percentage. From and after the date, if any, on
which any Lender is required to fund its participation in any Protective
Advance purchased hereunder, the Administrative Agentshall promptly distribute
to such Lender such Lender's Revolving Percentage of all payments of principal
and interest and all proceeds of Collateral received by the Administrative
Agent in respect of such Protective Advance (appropriatelyadjusted, in the
case of interest payments, to reflect the period of time during which such
Lender's participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender's pro rataportion of
such payment if such payment is not sufficient to pay the principal of and
interest on all Protective Advances then due).
2.4
[Reserved]
.
2.5
[Reserved]
.
2.6
[Reserved]
.
2.7
Repayment of Revolving Loans
. The Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of and ratable benefit of each Lender the aggregate
outstanding principal amount of the Revolving Loans on theRevolving
Termination Date.
2.8
Fees, etc.
(a) The Borrower agrees to pay to the Administrative Agent for the account of
eachRevolving Lender a commitment fee for the period from and including the
Closing Date to the last day of the Revolving Commitment Period, equal to the
Commitment Fee Rate
multiplied by
the average daily amount of unused Total Commitmentsduring the period for
which payment is made, payable quarterly in arrears on each Fee Payment Date,
commencing on the first such date to occur after the Closing Date.
53
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(b) The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and onthe dates as set forth in any fee agreements with the
Administrative Agent and to perform any other obligations contained therein.
2.9
Termination or Reduction of Commitments
. The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Commitments or, from time
to time, to reduce the amount of theCommitments;
provided
that no such termination or reduction of Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Loans made
on the effective date thereof, the Total Revolving Extensions ofCredit would
exceed the Line Cap. Any such reduction shall be in an amount equal to
$3,000,000, or a whole multiple thereof, and shall reduce permanently the
Commitments then in effect.
2.10
Optional Prepayments
. The Borrower may at any time and from time to time prepay the Loans, in
whole or in part, without premium orpenalty, upon irrevocable notice delivered
to the Administrative Agent no later than 2:00 PM, New York City time, three
Business Days prior thereto, in the case of Term SOFR Loans, and no later than
1:00 PM, New York City time, one Business Dayprior thereto, in the case of ABR
Loans, which notice shall specify the date and amount of prepayment and
whether the prepayment is of Term SOFR Loans or ABR Loans;
provided
, that if a Term SOFR Loan is prepaid on any day other than the lastday of the
Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.20. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If
any suchnotice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Loans that are ABR Loans) accrued interest to such date on the
amount prepaid. Partialprepayments of Revolving Loans shall be in an aggregate
principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof. The application of any prepayment pursuant to this Section 2.10 shall
be made
first
, to ABR Loansand
second
, to Term SOFR Loans.
2.11
Mandatory Prepayment of Loans
. (a) In the event and on such occasion that(i) the Total Revolving Extensions
of Credit exceed the Total Commitments or (ii) the Total Revolving Extensions
of Credit (excluding for such purposes Protective Advances) exceed the
Borrowing Base, the Borrower shall promptly (and in anyevent within two
Business Days) prepay (or in the case of L/C Exposure, cash collateralize) the
Revolving Loans, L/C Exposure and/or (in the case of clause (i) above) the
Protective Advances in an aggregate amount equal to such excess (it
beingunderstood that the Borrower shall prepay Revolving Loans and/or
Protective Advances prior to cash collateralization of L/C Exposure).
(b) In the event and on each occasion that any Net Cash Proceeds are received
by or on behalf of the Borrower or any Loan Party in respect ofany Disposition
(other than a Disposition pursuant to Section 7.5(b) or any Specified
Disposition) of assets included in the Borrowing Base, the Borrower shall,
immediately after such Net Cash Proceeds are received by the Borrower or any
LoanParty,
first
, prepay the Revolving Loans and,
second
, cash collateralize the L/C Obligations as set forth in Section 2.11(d) below
in an aggregate amount equal to 100% of such Net Cash Proceeds, provided that,
for so long as FullCash Dominion is not in effect, the Borrower shall have 90
days after receipt of such Net Cash Proceeds to apply the Net Cash Proceeds
from such event (or a portion thereof) to acquire (or replace or rebuild) real
property, equipment or othertangible assets (including inventory) to be used
in the business of the Loan Parties and no prepayment shall be required
pursuant to this paragraph in respect of the portion of such Net Cash Proceeds
so applied; provided further that (i) to theextent of any such Net Cash
Proceeds therefrom that have not been so applied by the end of such 90 day
period, a prepayment shall be required at such time in an amount equal to such
Net Cash Proceeds that have not been so applied (ii) to theextent Full Cash
Dominion is in effect at any time during such 90 day period, a prepayment
shall immediately be required at such time in amount equal to such Net Cash
Proceeds that have not been so applied.
54
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(c) In the event and on each occasion that the Borrower or any Restricted
Subsidiaryconsummates a Specified Disposition, the Borrower shall, immediately
upon the Borrower's or any Restricted Subsidiary's receipt of the proceeds
therefrom,
first
, prepay the Revolving Loans and,
second,
if and to the extentrequired by Section 2.11(a), cash collateralize the L/C
Obligations as set forth in Section 2.11(d) below in an aggregate amount equal
to 100% of the value ascribed to those Borrowing Base assets Disposed of in
such Specified Dispositionin the most recent Borrowing Base Certificate
delivered to the Administrative Agent pursuant to Section 6.2(g).
(d) Subject toclause
second
of Section 2.11(c), the application of any prepayment pursuant to this Section
2.11 shall be applied
first
, to ABR Loans,
second
, to Term SOFR Loans and
third
, to cash collateralize L/CObligations.
(e) On each Business Day during any Full Cash Dominion Period, the
Administrative Agent shall apply, subject toSection 2.17(b), all funds
credited to any applicable Collection Account as of 10:00 A.M., New York City
time, on such Business Day (whether or not immediately available) and
first
to prepay any Protective Advances that may beoutstanding,
second
to prepay other Revolving Loans (without a corresponding reduction in
Commitments).
2.12
Conversion andContinuation Options
. (a) The Borrower may elect from time to time to convert Term SOFR Loans to
ABR Loans by giving the Administrative Agent prior irrevocable notice of such
election substantially in the form of Exhibit B attached hereto(an "
Interest Election Request
") no later than 2:00 PM, New York City time, on the Business Day preceding
the proposed conversion date,
provided
that any such conversion of Term SOFR Loans may only be made on the last day
ofan Interest Period with respect thereto. The Borrower may elect from time to
time to convert ABR Loans to Term SOFR Loans by giving the Administrative
Agent prior irrevocable notice of such election no later than 1:00 PM, New
York City time, on thethird U.S. Government Securities Business Day preceding
the proposed conversion date (which Interest Election Request shall specify
the length of the initial Interest Period therefor),
provided
that no ABR Loan under a particular facility maybe converted into a Term SOFR
Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit
suchconversions. Upon receipt of any such Interest Election Request the
Administrative Agent shall promptly notify each relevant Lender thereof.
(b) Any Term SOFR Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the Borrowergiving
irrevocable notice by submitting an Interest Election Request to the
Administrative Agent, in accordance with the applicable provisions of the term
"Interest Period" set forth in Section 1.1, of the length of the next
InterestPeriod to be applicable to such Loans,
provided
that no Term SOFR Loan under a particular Facility may be continued as such
(i) when any Event of Default has occurred and is continuing and the
Administrative Agent has or the MajorityFacility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations or (ii) if a Specified Event of Default is in existence, and
provided
,
further
, that if the Borrowershall fail to give any required Interest Election
Request as described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso such Loans shall be automatically
converted to ABR Loans on the last day ofsuch then expiring Interest Period.
Upon receipt of any such Interest Election Request the Administrative Agent
shall promptly notify each relevant Lender thereof.
2.13
Limitations on Term SOFR Borrowings
. Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions andcontinuations of Term SOFR Loans and all selections of Interest
Periods shall be in such amounts and be made pursuant to such elections so
that, (a) after giving effect thereto, the aggregate principal amount of the
Term SOFR Loans comprisingeach Term SOFR Borrowing shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more
than 10 Term SOFR Borrowings shall be outstanding at any one time.
55
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2.14
Interest Rates and Payment Dates
. Subject to Section 2.16, (a) EachTerm SOFR Loan shall bear interest for each
day during each Interest Period with respect thereto at a rate per annum equal
to Adjusted Term SOFR determined for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
Alternate Base Rate
plus
the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the
statedmaturity, by acceleration or otherwise) upon the election of the
Required Lenders, such overdue amount shall bear interest at a rate per annum
equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuantto the foregoing provisions of this Section 2.14
plus 2% or (y) in the case of Reimbursement Obligations, the rate applicable
to Revolving Loans that are ABR Loans plus 2%, and (ii) if all or a portion of
any interest payable on anyLoan or Reimbursement Obligation or any commitment
fee or other amount payable hereunder shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise) upon election of the
Required Lenders, such overdue amount shall bearinterest at a rate per annum
equal to the rate then applicable to Revolving Loans that are ABR Loans plus
2%, in each case, with respect to clauses (i) and (ii) above, from the date of
such
non-payment
until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest PaymentDate,
provided
that interest accruing pursuant to paragraph (c) of this Section 2.14 shall be
payable from time to time on demand.
2.15
Computation of Interest and Fees
. (a) Interest and fees payable pursuant hereto shall be calculated on the
basis of a
360-day
year for the actual days elapsed, except that, with respect to ABR Loans the
rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a
365-
(or
366-,
as the case may be) day year for the actual days elapsed (including the first
day, but excluding the last day; provided that if a Loan is repaid on thesame
day on which it is made, one day's interest shall be paid on such Loan).
(b) Each determination of an interest rate by theAdministrative Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Borrower and the Lenders in the absence of manifest error. The Administrative
Agent shall, at the request of the Borrower, deliver to theBorrower a
statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.14(a).
2.16
Alternate Rate of Interest
. (a) If prior to the commencement of any Interest Period for a Term SOFR
Borrowing:
(i) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) prior to thecommencement of any Interest
Period for a Term Benchmark Borrowing, that adequate and reasonable means do
not exist for ascertaining the Adjusted Term SOFR Rate (including because the
Term SOFR Reference Rate is not available or published on acurrent basis), for
such Interest Period; or
56
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(ii) the Administrative Agent is advised by the Required Lenders that priorto
the commencement of any Interest Period for a Term Benchmark Borrowing, the
Adjusted Term SOFR Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or itsLoan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and
the Lenders bytelephone, telecopy or electronic mail as promptly as
practicable thereafter and, until (x) the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist with respect to therelevant Benchmark and (y) the Borrower
delivers a new Interest Election Request in accordance with the terms of
Section 2.12 or a new Borrowing Request in accordance with the terms of
Section 2.2, any Interest Election Request thatrequests the conversion of any
Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Term
Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark
Revolving Borrowing shall instead be deemed to be an InterestElection Request
or a Borrowing Request, as applicable, for an ABR Borrowing; provided that if
the circumstances giving rise to such notice affect only one Type of
Borrowings, then all other Types of Borrowings shall be permitted.
Furthermore, ifany Term Benchmark Loan is outstanding on the date of the
Borrower's receipt of the notice from the Administrative Agent referred to in
this Section 2.16(a) with respect to a Relevant Rate applicable to such Term
Benchmark Loan, then until(x) the Administrative Agent notifies the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist with respect to the relevant Benchmark and (y) the Borrower delivers a
new Interest Election Request inaccordance with the terms of Section 2.12 or a
new Borrowing Request in accordance with the terms of Section 2.2, any Term
Benchmark Loan shall on the last day of the Interest Period applicable to such
Loan, be converted by theAdministrative Agent to, and shall constitute, an ABR
Loan.
(b) Notwithstanding anything to the contrary herein or in any other
LoanDocument (and any Swap Agreement shall be deemed not to be a "Loan
Document" for purposes of this Section 2.16), if a Benchmark Transition Event
and its related Benchmark Replacement Date have occurred prior to the
Reference Time inrespect of any setting of the then-current Benchmark, then
the Benchmark Replacement will replace the Benchmark for all purposes
hereunder and under any Loan Document in respect of any Benchmark setting at
or after 5:00 p.m. (New York City time) onthe fifth (5th) Business Day after
the date notice of such Benchmark Replacement is provided to the Lenders
without any amendment to, or further action or consent of any other party to,
this Agreement or any other Loan Document so long as theAdministrative Agent
has not received, by such time, written notice of objection to such Benchmark
Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan
Document, the Administrative Agent will have the right to makeBenchmark
Replacement Conforming Changes in consultation with the Borrower from time to
time and, notwithstanding anything to the contrary herein or in any other Loan
Document, any amendments implementing such Benchmark Replacement ConformingChang
es will become effective without any further action or consent of any other
party to this Agreement or any other Loan Document.
(d)The Administrative Agent will promptly notify the Borrower and the Lenders
of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation
of any Benchmark Replacement, (iii) the effectiveness of any BenchmarkReplacemen
t Conforming Changes, (iv) the removal or reinstatement of any tenor of a
Benchmark pursuant to clause (f) below and (v) the commencement or conclusion
of any Benchmark Unavailability Period. Any determination, decision orelection
that may be made by the Administrative Agent or, if applicable, any Lender (or
group of Lenders) pursuant to this Section 2.16, including any determination
with respect to a tenor, rate or adjustment or of the occurrence or
non-occurrence
of an event, circumstance or date and any decision to take or refrain from
taking any action or any selection, will be conclusive and binding absent
manifest error and may be made in its or their solediscretion and without
consent from any other party to this Agreement or any other Loan Document,
except, in each case, as expressly required pursuant to this Section 2.16.
57
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(e) Notwithstanding anything to the contrary herein or in any other Loan
Document, at anytime (including in connection with the implementation of a
Benchmark Replacement), (i) if the then-current Benchmark is a term rate
(including the Term SOFR Rate) and either (A) any tenor for such Benchmark is
not displayed on a screen or otherinformation service that publishes such rate
from time to time as selected by the Administrative Agent in its reasonable
discretion or (B) the regulatory supervisor for the administrator of such
Benchmark has provided a public statement orpublication of information
announcing that any tenor for such Benchmark is or will be no longer
representative, then the Administrative Agent may modify the definition of
"Interest Period" for any Benchmark settings at or after such timeto remove
such unavailable or
non-representative
tenor and (ii) if a tenor that was removed pursuant to clause (i) above either
(A) is subsequently displayed on a screen or information servicefor a
Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer,
subject to an announcement that it is or will no longer be representative for
a Benchmark (including a Benchmark Replacement), then the Administrative Agent
maymodify the definition of "Interest Period" for all Benchmark settings at or
after such time to reinstate such previously removed tenor.
(f) Upon the Borrower's receipt of notice of the commencement of a Benchmark
Unavailability Period, the Borrower may revoke any requestfor a Term Benchmark
Borrowing of, conversion to or continuation of Term Benchmark Loans to be
made, converted or continued during any Benchmark Unavailability Period and,
failing that, the Borrower will be deemed to have converted any request for
aTerm Benchmark Borrowing into a request for a Borrowing of or conversion to
an ABR Borrowing. During any Benchmark Unavailability Period or at any time
that a tenor for the then-current Benchmark is not an Available Tenor, the
component of ABR basedupon the then-current Benchmark or such tenor for such
Benchmark, as applicable, will not be used in any determination of ABR.
Furthermore, if any Term Benchmark Loan is outstanding on the date of the
Borrower's receipt of notice of thecommencement of a Benchmark Unavailability
Period with respect to a Relevant Rate applicable to such Term Benchmark Loan,
then until such time as a Benchmark Replacement is implemented pursuant to
this Section 2.16, any Term Benchmark Loanshall on the last day of the
Interest Period applicable to such Loan, be converted by the Administrative
Agent to, and shall constitute an ABR Loan.
2.17
Pro Rata Treatment and Payments
. (a) Each borrowing by the Borrower from the Revolving Lenders hereunder,
each payment by theBorrower on account of any commitment fee and any reduction
of the Commitments of the Lenders shall be made pro rata according to the
Revolving Percentages of the Lenders, in each case unless otherwise provided
in this Agreement.
(b) Any proceeds of Collateral of any Loan Party received by the Administrative
Agent (i) after an Event of Default has occurred and iscontinuing and the
Administrative Agent so elects or the Required Lenders so direct or (ii) at
any other time, not constituting (A) a specific payment of principal,
interest, fees or other sum payable under the Loan Documents (which shallbe
applied as specified by the Borrower), (B) a mandatory prepayment (which shall
be applied in accordance with Section 2.11(a)) or (C) amounts to be applied
from the Collection Account (which shall be applied in accordance withSection
2.11(e)), shall be applied, subject to the Intercreditor Agreements, ratably
first
, to pay any fees, indemnities, or expense reimbursements then owing to the
Administrative Agent and any Issuing Lender from, or guaranteed by,such Loan
Party under the Loan Documents (other than in connection with Banking Services
Obligations or Swap Obligations),
second
, to pay any fees or expense reimbursements then owing to the Lenders from, or
guaranteed by, such Loan Partyunder the Loan Documents (other than in
connection with Banking Services or Swap Obligations),
third
, to pay interest due in respect of the Protective Advances owing by or
guaranteed by such Loan Party,
fourth
, to pay the principal ofthe Protective Advances owing by or guaranteed by
such Loan Party,
fifth
, to pay interest then due and payable on the Loans (other than the Protective
Advances) and unreimbursed L/C Disbursements, in each case owing or guaranteed
by such
58
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Loan Party, ratably,
sixth
, to prepay principal on the Loans (other than the Protective Advances) and
unreimbursed L/C Disbursements owing or guaranteed by such Loan Party, to the
paymentof any amounts owing with respect to Reported Banking Services
Obligations and Reported Secured Swap Obligations owing or guaranteed by such
Loan Party and to pay an amount to the Administrative Agent equal to 103% of
the aggregate undrawn faceamount of all outstanding Letters of Credit issued
on behalf of, or guaranteed by, such Loan Party, to be held as cash collateral
for such Obligations, ratably,
seventh
, [Reserved],
eighth
, to the payment of any amounts owing withrespect to Banking Services
Obligations (other than Reported Banking Services Obligations) and Secured
Swap Obligations (other than Reported Secured Swap Obligations) owing or
guaranteed by such Loan Party, ratably,
ninth
, to the payment ofany other Obligations owing to the Administrative Agent or
any Lender by, or guaranteed by, such Loan Party, ratably, and
tenth
, any balance remaining after the Obligations shall have been paid in full and
no Letters of Credit shall beoutstanding (other than Letters of Credit which
have been cash collateralized in accordance with the foregoing) shall be paid
over to the applicable Loan Party at its account designated for such purpose
by written notice by such Loan Party to theAdministrative Agent or to
whomsoever else may be lawfully entitled to receive the same. The application
of any payment pursuant to this Section 2.17(b) shall be made
first
, to ABR Loans and
second
, to Term SOFR Loans. Each of theAdministrative Agent and the Lenders shall
have the continuing and exclusive right to apply and reverse and reapply any
and all such proceeds and payments to any portion of the Obligations to
maximize realization of the Collateral (it beingunderstood that, notwithstanding
the foregoing, in no event shall be payments be made pursuant to levels "
eighth
" or "
ninth
" above prior to the payment in full of all obligations described in levels"
first
" through "
seventh
" above). Notwithstanding the foregoing, no amount received from any Loan
Party shall be applied to any Excluded Swap Obligation of such Loan Party.
(c) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Revolving Loans shall be made prorata
according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders, unless otherwise provided by this
Agreement.
(d) All payments (including prepayments) to be made by the Borrower hereunder,
whether on account of principal, interest, fees or otherwise,shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, New York
City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Funding Office, in Dollars and in immediatelyavai
lable funds. The Administrative Agent shall distribute such payments to each
relevant Lender promptly upon receipt in like funds as received, net of any
amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder
(otherthan payments on the Term SOFR Loans) becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next
succeeding Business Day. If any payment on a Term SOFR Loan becomes due and
payable on a day other than aBusiness Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in
which event such payment shall be made on the immediatelypreceding Business
Day. In the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then
applicable rate during such extension. During any Full Cash Dominion
Period,solely for purposes of determining the amount of Loans available for
borrowing purposes, checks (in addition to immediately available funds applied
pursuant to Section 2.11(e)) from collections of items of payment and proceeds
of any Collateralshall be applied in whole or in part against the applicable
Obligations as of 10:00 A.M., New York City time, on the Business Day of
receipt, subject to actual collection.
(e) Unless the Administrative Agent shall have been notified in writing by any
Lender prior to a borrowing that such Lender will not make theamount that
would constitute its share of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative Agent
may, in
59
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reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by
the required time on the Borrowing Datetherefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon, at a rate
equal to the greater of (i) the NYFRB Rate and (ii) a rate determined by the
Administrative Agent in accordance withbanking industry rules on interbank
compensation, for the period until such Lender makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative
Agent submitted to any Lender with respect to any amountsowing under this
paragraph shall be conclusive in the absence of manifest error. If such
Lender's share of such borrowing is not made available to the Administrative
Agent by such Lender within three Business Days after such Borrowing Date,
theAdministrative Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to Revolving Loans that are
ABR Loans, on demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified in writing by the
Borrower prior to the date of any payment due to be made by theBorrower
pursuant to the terms hereof or any other Loan Document (including any date
that is fixed for prepayment by notice from the Borrower to the Administrative
Agent pursuant to Section 2.10) that the Borrower will not make such payment
tothe Administrative Agent, the Administrative Agent may assume that the
Borrower is making such payment, and the Administrative Agent may, but shall
not be required to, in reliance upon such assumption, make available to the
Lenders their respective
pro
rata
shares of a corresponding amount. If such payment is not made to the
Administrative Agent by the Borrower within three Business Days after such due
date, the Administrative Agent shall be entitled to recover, on demand,
fromeach Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average NYFRB Rate. Nothing herein shall be deemed to limit
the rights of theAdministrative Agent or any Lender against the Borrower.
(g) If any Lender shall fail to make any payment required to be made by
itpursuant to Section 2.17(e), 2.17(f), 2.19(e), 3.4(a) or 9.7, then the
Administrative Agent may, in its discretion and notwithstanding any contrary
provision hereof, (i) apply any amounts thereafter received by the
Administrative Agent forthe account of such Lender for the benefit of the
Administrative Agent or the Issuing Lender to satisfy such Lender's
obligations to it under such Sections until all such unsatisfied obligations
are fully paid, and/or (ii) hold any suchamounts in a segregated account as
cash collateral for, and application to, any future funding obligations of
such Lender under any such Section, in the case of each of clauses (i) and
(ii) above, in any order as determined by theAdministrative Agent in its
discretion.
2.18
Requirements of Law
. (a) If the adoption of or any change in any Requirement ofLaw or in the
interpretation, administration, implementation or application thereof or
compliance by any Lender or other Credit Party with any request or directive
(whether or not having the force of law) from any central bank or other
GovernmentalAuthority, in each case made or occurring subsequent to the
Closing Date:
shall subject any Credit Party to any Taxes (other than(A) Indemnified Taxes,
(B) Taxes described in clauses (b) through (d) of the definition of Excluded
Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters
of credit, commitments, or other obligations, or itsdeposits, reserves, other
liabilities or capital attributable thereto;
shall impose, modify or hold applicable any reserve, specialdeposit,
compulsory loan, insurance charge or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit (or participations therein) by, or any other
acquisitionof funds by, any office of such Lender that is not otherwise
included in the determination of Adjusted Term SOFR; or
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shall impose on such Lender any other condition (other than Taxes);
and the result of any of the foregoing is to increase the cost to such Lender
or such other Credit Party, by an amount that such Lender or other Credit
Partydeems to be material, of making, converting into, continuing or
maintaining Loans or issuing or participating in Letters of Credit, or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, the Borrower shall promptlypay such Lender or such other Credit Party,
upon its demand, any additional amounts necessary to compensate such Lender or
such other Credit Party for such increased cost or reduced amount receivable.
If any Lender or such other Credit Party becomesentitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.
(a) If any Lender shall have determined that the adoption of or any change in
any Requirement of Law regarding capital or liquidityrequirements or in the
interpretation, administration, implementation or application thereof or
compliance by such Lender or any corporation controlling such Lender with any
request or directive regarding capital or liquidity requirements (whetheror
not having the force of law) from any Governmental Authority made subsequent
to the Closing Date shall have the effect of reducing the rate of return on
such Lender's or such corporation's capital as a consequence of its
obligationshereunder or under or in respect of any Letter of Credit to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's
or suchcorporation's policies with respect to capital adequacy or liquidity)
by an amount deemed by such Lender to be material, then from time to time,
after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of awritten request therefor, the Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender
or such corporation for such reduction.
(b) Notwithstanding anything herein to the contrary, (i) all requests, rules,
guidelines, requirements and directives promulgated by theBank for
International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or by United States or foreign regulatory
authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank
WallStreet Reform and Consumer Protection Act and all requests, rules,
guidelines, requirements and directives thereunder or issued in connection
therewith or in implementation thereof, shall in each case be deemed to be a
change in law, regardless ofthe date enacted, adopted, issued or implemented.
(c) A certificate as to any additional amounts payable pursuant to this
Sectionsubmitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error.
Notwithstanding anything to the contrary in this Section, the Borrower shall
not be required to compensate aLender pursuant to this Section for any amounts
incurred more than nine months prior to the date that such Lender notifies the
Borrower of such Lender's intention to claim compensation therefor;
provided
that, if the circumstances givingrise to such claim have a retroactive effect,
then such nine-month period shall be extended to include the period of such
retroactive effect. The obligations of the Borrower pursuant to this Section
shall survive the termination of this Agreementand the payment of the Loans
and all other amounts payable hereunder.
(d) Notwithstanding any other provision of this Section 2.18to the contrary,
no Lender shall be entitled to receive any compensation pursuant to this
Section 2.18 unless it shall be the general policy or practice of such Lender
to seek compensation from other similarly situated borrowers in the
U.S.syndicated loan market with respect to its similarly affected loans under
agreements with such borrowers having provisions similar to this Section 2.18.
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2.19
Taxes
. (a) Any and all payments by or on account of any obligation of any LoanParty
under any Loan Document shall be made without deduction or withholding for any
Taxes, except as required by applicable law. If any applicable law (as
determined in the good faith discretion of an applicable withholding agent)
requires thededuction or withholding of any Tax from any such payment by a
withholding agent, then the applicable withholding agent shall be entitled to
make such deduction or withholding and shall timely pay the full amount
deducted or withheld to the relevantGovernmental Authority in accordance with
applicable law and, if such Tax is an Indemnified Tax, then the sum payable by
the applicable Loan Party shall be increased as necessary so that, after such
deduction or withholding has been made (includingsuch deductions and
withholdings applicable to additional sums payable under this Section 2.19),
the amounts received with respect to this agreement equal the sum which would
have been received had no such deduction or withholding been made.
(b) The Loan Parties shall timely pay to the relevant Governmental Authority
in accordance with applicable law, or at the option of theAdministrative Agent
timely reimburse it for, Other Taxes.
(c) As soon as practicable after any payment of Taxes by any Loan Party to
aGovernmental Authority pursuant to this Section 2.19, such Loan Party shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the returnreporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(d) Without duplication ofpayments made pursuant to Section 2.19(a) above, the
Loan Parties shall jointly and severally indemnify each Credit Party, within
10 days after demand therefor, for the full amount of any Indemnified Taxes
(including Indemnified Taxes imposedor asserted on or attributable to amounts
payable under this Section 2.19) payable or paid by such Credit Party or
required to be withheld or deducted from a payment to such Credit Party and
any reasonable expenses arising therefrom or withrespect thereto, whether or
not such Indemnified Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender (with acopy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(e) Each Lender shall severally indemnify the Administrative Agent, within 10
days after demand therefor, for (i) any Taxes attributableto such Lender (but
only to the extent that any Loan Party has not already indemnified the
Administrative Agent for such Indemnified Taxes and without limiting the
obligation of the Loan Parties to do so) and (ii) any Taxes attributable to
suchLender's failure to comply with the provisions of Section 10.6(c) relating
to the maintenance of a Participant Register, in either case, that are payable
or paid by the Administrative Agent in connection with any Loan Document, and
anyreasonable expenses arising therefrom or with respect thereto, whether or
not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered toany Lender by the Administrative Agent shall be
conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time
owing to such Lender under any Loan Document or otherwisepayable by the
Administrative Agent to the Lender from any other source against any amount
due to the Administrative Agent under this paragraph (e).
(f) (i) Any Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Loan Documentshall
deliver to the Borrower and the Administrative Agent, at the time or times
reasonably requested by the Borrower or the Administrative Agent, such
properly completed and executed documentation reasonably requested by the
Borrower or theAdministrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any
Lender, if reasonably requested by the Borrower or the Administrative Agent,
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shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will
enable the Borrower or the Administrative Agent todetermine whether or not
such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation(other
than such documentation set forth in Section 2.19(f)(ii)(A), (ii)(B) and
(ii)(D) below) shall not be required if in the Lender's reasonable judgment
such completion, execution or submission would subject such Lender to any
materialunreimbursed cost or expense or would materially prejudice the legal
or commercial position of such Lender.
(ii) Without limiting thegenerality of the foregoing, in the event that the
Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to thedate on which such Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request
of the Borrower or the Administrative Agent), executed copies of IRS Form
W-9
certifying that such Lender is exempt
from U.S. federal backup withholding tax;
(B) any
Non-U.S.
Lender shall, to the extent it is legally entitled to doso, deliver to the Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such
Non-U.S.
Lender becomes a Lender under thisAgreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a
Non-U.S.
Lender claiming the benefits of an income taxtreaty to which the United States is a party (x)
with respect to payments of interest under any Loan Document, executed copies of IRS Form
W-8BEN
or IRS Form
W-8BEN-E
establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the "interest" article
of such tax treaty and (y) with respect to any other applicablepayments under any Loan Document, IRS Form
W-8BEN
or IRS Form
W-8BEN-E
establishing an exemption from, or reduction of, U.S.federal withholding Tax
pursuant to the "business profits" or "other income" article of such tax treaty;
(2) executed copies of IRS Form
W-8ECI;
(3) in the case of a
Non-U.S.
Lender claiming the benefits of the
exemptionfor portfolio interest under Section
881(c) of the Code, (x) a certificate
substantially in the form of Exhibit
H-1
to the effect that such
Non-U.S.
Lender isnot a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, a "10 percent shareholder" of the Borrower within the
meaning of Section 881(c)(3)(B) of the Code, or a "controlled
foreigncorporation" described in Section 881(c)(3)(C) of the Code (a "
U.S. Tax Compliance Certificate
") and (y) executed copies of IRS Form
W-8BEN
or IRS Form
W-8BEN-E;
or
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(4) to the extent a
Non-U.S.
Lender is not the beneficial owner, executedcopies of IRS Form
W-8IMY,
accompanied by IRS Form
W-8ECI,
IRS Form
W-8BEN,
IRS Form
W-8BEN-E,
a U.S. Tax Compliance Certificate substantially in the form of Exhibit
H-2
or Exhibit
H-3,
IRS Form
W-9,
and/or other certification documents from each beneficial owner, as applicable;
provided
that if the
Non-U.S.
Lender is a partnership and one or more direct orindirect partners of such
Non-U.S.
Lender are claiming the portfolio interest exemption, such
Non-U.S.
Lender may provide a U.S. Tax Compliance Certificate substantiallyin the form of Exhibit
H-4
on behalf of each such direct and indirect partner;
(C) any
Non-U.S.
Lender shall, to the extent
it is legally entitled to
doso, deliver to the Borrower
and the Administrative
Agent (in such number of
copies as shall be requested
by the recipient) on or prior
to the date on which such
Non-U.S.
Lender becomes a Lender under thisAgreement (and from time to time
thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed copies of any other form prescribed
by applicable law as a basis for claiming exemption from or a
reduction in U.S.Federal withholding Tax, duly completed, together
with such supplementary documentation as may be prescribed by
applicable law to permit the Borrower or the Administrative Agent
to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject
to U.S. federal withholding Tax imposedby FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA
(including those contained in Section 1471(b) or 1472(b) of the Code,
as applicable), such Lender shall deliver to the Borrower and
theAdministrative Agent at the time or times prescribed by law and at such
time or times reasonably requested by the Borrower or the Administrative
Agent such documentation prescribed by applicable law (including
as prescribed bySection 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with their obligations underFATCA and to
determine that such Lender has complied with such Lender's obligations
under FATCA or to determine the amount, if any, to deduct and withhold
from such payment. Solely for purposes of this clause (D), "FATCA"
shallinclude any amendments made to FATCA after the Closing Date.
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Each Lender agrees that if any form or certification it previously delivered
expires orbecomes obsolete or inaccurate in any respect, it shall update such
form or certification or promptly notify the Borrower and the Administrative
Agent in writing of its legal inability to do so.
(g) If any party determines, in its sole discretion exercised in good faith,
that it has received a refund of any Taxes as to which it hasbeen indemnified
pursuant to this Section 2.19 (including by the payment of additional amounts
pursuant to this Section 2.19), it shall pay to the indemnifying party an
amount equal to such refund (but only to the extent of indemnitypayments made
under this Section with respect to the Taxes giving rise to such refund), net
of all
out-of-pocket
expenses (including Taxes) of such indemnified party andwithout interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund). Such indemnifying party, upon the request of such
indemnified party, shall repay to such indemnified party the amount paid
overpursuant to this paragraph (g) (
plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to repay such
refund to such Governmental Authority.Notwithstanding anything to the contrary
in this paragraph (g), in no event will the indemnified party be required to
pay any amount to an indemnifying party pursuant to this paragraph (g) the
payment of which would place the indemnified partyin a less favorable net
after-Tax
position than the indemnified party would have been in if the indemnification
payments or additional amounts giving rise to such refund had never been paid.
ThisSection 2.19 shall not be construed to require any indemnified party to
make available its Tax returns (or any other information relating to its Taxes
that it deems confidential) to the indemnifying party or any other Person.
(h) Each party's obligations under this Section 2.19 shall survive the
resignation or replacement of the Administrative Agent or anyassignment of
rights by, or the replacement of, a Lender, the termination of the Commitments
and the repayment, satisfaction or discharge of all obligations under the Loan
Documents.
(i) For purposes of this Section 2.19, the term "Lender" includes the Issuing
Lender and the term "applicable law"includes FATCA.
2.20
Indemnity
. The Borrower agrees to indemnify each Lender for, and to hold each Lender
harmless from, any lossor expense that such Lender sustains or incurs as a
consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Term SOFR Loans after the Borrower has
given a notice requesting the same in accordancewith the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or
conversion from Term SOFR Loans after the Borrower has given a notice thereof
in accordance with the provisions of this Agreement or (c) themaking of a
prepayment of Term SOFR Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would haveaccrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert
or continue to the last day of such Interest Period (or, in the case of a
failure toborrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein,if any) over (ii) the amount of interest
(as reasonably determined by such Lender) that would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollarmarket. A certificate as
to any amounts payable pursuant to this Section submitted to the Borrower by
any Lender shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment ofthe Loans
and all other amounts payable hereunder for nine months.
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2.21
Change of Lending Office
. Each Lender agrees that, upon the occurrence of anyevent giving rise to the
operation of Section 2.18 or 2.19(a) with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lendingoffice for any
Loans affected by such event or to assign and delegate its rights and
obligations hereunder to another of its offices, branches or Affiliates with
the object of avoiding the consequences of such event;
provided
, that suchdesignation or assignment is made on terms that, in the sole
judgment of such Lender, cause such Lender and its lending offices to suffer
no material economic, legal or regulatory disadvantage, and
provided
,
further
, that nothing inthis Section shall affect or postpone any of the obligations
of the Borrower or the rights of any Lender pursuant to Section 2.18 or
2.19(a).
2.22
Replacement of Lenders
. The Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amountsowing pursuant to Section 2.18 or 2.19(a), (b)
becomes a Defaulting Lender or (c) does not consent to any proposed amendment,
supplement, modification, consent or waiver of any provision of this Agreement
or any other Loan Document thatrequires the consent of the Supermajority
Lenders, each of the Lenders or each of the Lenders affected thereby (so long
as the consent of the Required Lenders has been obtained), with a replacement
financial institution;
provided
that(i) such replacement does not conflict with any Requirement of Law, (ii)
no Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall have taken
noaction under Section 2.21 so as to eliminate the continued need for payment
of amounts owing pursuant to Section 2.18 or 2.19(a), (iv) the replacement
financial institution shall purchase, at par, all Loans and other amounts
owing to suchreplaced Lender on or prior to the date of replacement, (v) the
Borrower shall be liable to such replaced Lender under Section 2.20 if any
Term SOFR Loan owing to such replaced Lender shall be purchased other than on
the last day of theInterest Period relating thereto, (vi) the replacement
financial institution shall be reasonably satisfactory to the Administrative
Agent, (vii) the replaced Lender shall be obligated to make such replacement
in accordance with theprovisions of Section 10.6 (provided that the Borrower
shall be obligated to pay the registration and processing fee referred to
therein), (viii) until such time as such replacement shall be consummated, the
Borrower shall pay all additionalamounts (if any) required pursuant to Section
2.18 or 2.19(a), as the case may be, and (ix) any such replacement shall not
be deemed to be a waiver of any rights that the Borrower, the Administrative
Agent or any other Lender shall haveagainst the replaced Lender. Each party
hereto agrees that an assignment required pursuant to this paragraph may be
effected pursuant to an Assignment and Assumption executed by the Borrower,
the Administrative Agent and the assignee, and that theLender required to make
such assignment need not be a party thereto in order for such assignment to be
effective.
2.23
DefaultingLenders
. Notwithstanding any provision of this Agreement to the contrary, if any
Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of
such Defaulting Lender pursuant to Section 2.8(a);
(b) the Commitment and Revolving Extensions of Credit of such Defaulting
Lender shall not be included in determining whether the RequiredLenders have
taken or may take any action hereunder (including any consent to any
amendment, waiver or other modification pursuant to Section 10.1);
provided
, that this clause (b) shall not apply to the vote of a Defaulting Lenderin
the case of an amendment, waiver or other modification requiring the consent
of such Lender or each Lender affected thereby;
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(c) if any L/C Exposure or Protective Advance Exposure exists at the time such
Lenderbecomes a Defaulting Lender then:
all or any part of the L/C Exposure and Protective Advance Exposure of such
Defaulting Lender shall be reallocated amongthe
non-Defaulting
Lenders in accordance with their respective Revolving Percentages but only to
the extent the sum of all
non-Defaulting
Lenders' RevolvingExtensions of Credit
plus
such Defaulting Lender's L/C Exposure and Protective Advance Exposure does not
exceed the total of all
non-Defaulting
Lenders' Commitments;
if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following
noticeby the Administrative Agent (x)
first
, prepay such Protective Advance Exposure and (y)
second
, cash collateralize for the benefit of the Issuing Lender only the Borrower's
obligations corresponding to such DefaultingLender's L/C Exposure (after
giving effect to any partial reallocation pursuant to clause (i) above) in
accordance with the procedures set forth in Section 8 for so long as such L/C
Exposure is outstanding;
if the Borrower cash collateralizes any portion of such Defaulting Lender's
L/C Exposure pursuant to clause (ii) above, the Borrower shall not berequired
to pay any fees to such Defaulting Lender pursuant to Section 3.3(a) with
respect to such Defaulting Lender's L/C Exposure during the period such
Defaulting Lender's L/C Exposure is cash collateralized;
if the L/C Exposure of the
non-Defaulting
Lenders is reallocated pursuant to clause (i) above, then the feespayable to
the Lenders pursuant to Section 2.8(a) and Section 3.3(a) shall be adjusted in
accordance with such
non-Defaulting
Lenders' Revolving Percentages; and
if all or any portion of such Defaulting Lender's L/C Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above,then,
without prejudice to any rights or remedies of the Issuing Lender or any other
Lender hereunder, all fees payable under Section 3.3(a) with respect to such
Defaulting Lender's L/C Exposure shall be payable to the Issuing Lender
untiland to the extent that such L/C Exposure is reallocated and/or cash
collateralized; and
(d) so long as such Lender is a DefaultingLender, the Issuing Lender shall not
be required to issue, amend or increase any Letter of Credit, unless it is
satisfied that the related exposure and the Defaulting Lender's then
outstanding L/C Exposure will be 100% covered by theCommitments of the
non-Defaulting
Lenders and/or cash collateral will be
provided
by the Borrower in accordance with Section 2.23(c), and participating
interests in any newly issued or increasedLetter of Credit shall be allocated
among
non-Defaulting
Lenders in a manner consistent with Section 2.23(c)(i) (and such Defaulting
Lender shall not participate therein).
If (i) a Bankruptcy Event with respect to a Lender Parent of any Lender shall
occur following the Closing Date and for so long as suchevent shall continue
or (ii) the Issuing Lender has a good faith belief that any Lender has
defaulted in fulfilling its obligations under one or more other agreements in
which such Lender commits to extend credit, the Issuing Lender shall notbe
required to issue, amend or increase any Letter of Credit, unless the Issuing
Lender, as the case may be, shall have entered into arrangements with the
Borrower or such Lender, satisfactory to the Issuing Lender, as the case may
be, to defeaseany risk to it in respect of such Lender hereunder.
In the event that the Administrative Agent, the Borrower and the Issuing
Lender eachagrees that a Defaulting Lender has adequately remedied all matters
that caused such Lender to be a Defaulting Lender, then the L/C Exposure and
Protective Advance Exposure of the Lenders shall be readjusted to reflect the
inclusion of suchLender's Commitment and on such date such Lender shall
purchase at par such of the Loans of the other Lenders as the Administrative
Agent shall determine may be necessary in order for such Lender to hold such
Loans in accordance with itsRevolving Percentage.
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2.24
Incremental Facilities
. (a) The Borrower and any one or more Lenders(including New Lenders) may from
time to time agree that such Lenders shall make, obtain or increase the amount
of their Commitments (any such new or increased Commitments, "
Incremental Commitments
") by executing and delivering tothe Administrative Agent an Increased
Facility Activation Notice specifying (x) the amount of such Incremental
Commitments and (y) the applicable Increased Facility Closing Date (which
shall be a date not less than 10 Business Days afterthe date on which such
notice is delivered to the Administrative Agent (or such earlier date as shall
be agreed by the Administrative Agent));
provided
that (i) with respect to any Increased Facility Closing Date, the
IncrementalCommitments shall be in a minimum amount of $20,000,000 and (ii)
the aggregate amount of Incremental Commitments obtained after the Fifth
Amendment Effective Date pursuant to this Section 2.24 shall not exceed
$100,000,000. No Lender shallhave any obligation to participate in any
increase described in this paragraph unless it agrees to do so in its sole
discretion.
(b) Anyadditional bank, financial institution or other entity which, with the
consent of the Borrower, the Issuing Lender and the Administrative Agent
(which consent shall not be unreasonably withheld), elects to become a
"Lender" under thisAgreement in connection with any transaction described in
Section 2.24(a) shall execute a New Lender Supplement (each, a "
New Lender Supplement
"), substantially in the form of Exhibit
I-2,
whereupon such bank, financial institution or other entity (a "
New Lender
") shall become a Lender for all purposes and to the same extent as if
originally a party hereto and shall bebound by and entitled to the benefits of
this Agreement.
(c) Unless otherwise agreed or otherwise directed by the Administrative
Agent,on each Increased Facility Closing Date, the Borrower shall borrow
Revolving Loans under the relevant Incremental Commitments from each Lender
participating in the relevant increase in an amount determined by reference to
the amount of each Type ofLoan (and, in the case of Term SOFR Loans, of each
Term SOFR Borrowing) which would then have been outstanding from such Lender
if (i) each such Type or Term SOFR Borrowing had been borrowed or effected on
such Increased Facility Closing Dateand (ii) the aggregate amount of each such
Type or Term SOFR Borrowing requested to be so borrowed or effected had been
proportionately increased. The Term SOFR Reference Rate applicable to any Term
SOFR Loan borrowed pursuant to the precedingsentence shall equal the Term SOFR
Reference Rate then applicable to the Term SOFR Loans of the other Lenders in
the same Term SOFR Borrowing (or, until the expiration of the then-current
Interest Period, such other rate as shall be agreed uponbetween the Borrower
and the relevant Lender).
(d) It shall be a condition precedent to the availability of any Incremental
Commitmentsthat (i) no Default or Event of Default shall have occurred and be
continuing immediately prior to and immediately after giving effect to the
making of such Incremental Commitments, (ii) the representations and
warranties set forth in eachLoan Document shall be true and correct in all
material respects (or, if qualified by materiality, in all respects) on and as
of the Increased Facility Closing Date immediately prior to and immediately
after giving effect to the making of suchIncremental Commitments, except to
the extent expressly made as of an earlier date, in which case they shall be
so true and correct as of such earlier date and (iii) the Borrower shall have
delivered such legal opinions, board resolutions,secretary's certificate,
officer's certificate and other documents as shall be reasonably requested by
the Administrative Agent in connection with any Incremental Commitments.
2.25
Loan Modification Offers
. (a) The Borrower may on one or more occasions after the Closing Date, by
written notice to theAdministrative Agent, make one or more offers (each, a "
Loan Modification Offer
") to all (and not fewer than all) the Lenders of one or more Facilities (each
Facility subject to such a Loan Modification Offer, an "
AffectedFacility
") to make one or more Permitted Amendments pursuant to procedures reasonably
specified by the Administrative Agent and reasonably acceptable to the
Borrower.
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Such notice shall set forth (i) the terms and conditions of the requested Loan
Modification Offer and (ii) the date on which such Loan Modification Offer is
requested to becomeeffective. Permitted Amendments shall become effective only
with respect to the Loans of the Lenders of the Affected Facility that accept
the applicable Loan Modification Offer (such Lenders, the "
Accepting Lenders
") and, in thecase of any Accepting Lender, only with respect to such Lender's
Loans and Commitments of such Affected Facility as to which such Lender's
acceptance has been made. With respect to all Permitted Amendments consummated
by the Borrowerpursuant to this Section 2.25, such Permitted Amendments shall
not constitute voluntary or mandatory payments or prepayments for purposes of
Section 2.11 and (ii) any Loan Modification Offer, unless contemplating a
scheduled maturitydate already in effect with respect to any Loans hereunder
pursuant to a previously consummated Permitted Amendment, must be in a minimum
amount of $25,000,000 (or such lesser amount as may be approved by the
Administrative Agent in its reasonablediscretion); provided that the Borrower
may at its election specify as a condition (a "
Minimum Extension Condition
") to consummating any such Permitted Amendment that a minimum amount (to be
determined and specified in the relevantLoan Modification Offer in the
Borrower's sole discretion and which may be waived by the Borrower) of Loans
of any or all Affected Facilities be extended. If the aggregate principal
amount of Loans of any Affected Facility in respect of whichLenders shall have
accepted the relevant Loan Modification Offer shall exceed the maximum
aggregate principal amount of Loans of such Affected Facility offered to be
extended by the Borrower pursuant to such Loan Modification Offer, then the
Loansof such Lenders shall be extended ratably up to such maximum amount based
on the relative principal amounts (but not to exceed actual holdings of
record) with respect to which such Lenders have accepted such Loan
Modification Offer.
(b) A Permitted Amendment shall be effected pursuant to a Loan Modification
Agreement executed and delivered by the Borrower, each AcceptingLender and the
Administrative Agent;
provided
that no Permitted Amendment shall become effective unless (i) on the date of
effectiveness thereof, the representations and warranties of each Loan Party
set forth in the Loan Documents(other than Section 4.7 as to no Default or
Event of Default) shall be true and correct in all material respects (or if
qualified by materiality, in all respects), in each case on and as of such
date, except in the case of any suchrepresentation and warranty expressly made
as of an earlier date, in which case such representation and warranty shall be
so true and correct on and as of such earlier date, (ii) the Borrower shall
have delivered, or agreed to deliver by a datefollowing the effectiveness of
such Permitted Amendment reasonably acceptable to the Administrative Agent, to
the Administrative Agent such legal opinions, board resolutions, secretary's
certificates, officer's certificates and otherdocuments (including
reaffirmation agreements, supplements and/or amendments to other Security
Documents, in each case to the extent applicable) as shall reasonably be
requested by the Administrative Agent in connection therewith and (iii)
anyapplicable Minimum Extension Condition shall be satisfied (unless waived by
the Borrower). The Administrative Agent shall promptly notify each Lender as
to the effectiveness of each Loan Modification Agreement. Each Loan
Modification Agreement may,without the consent of any Lender other than the
applicable Accepting Lenders, effect such amendments to this Agreement and the
other Loan Documents as may be necessary or appropriate, in the reasonable
opinion of the Administrative Agent, to giveeffect to the provisions of this
Section 2.26, including any amendments necessary to treat the applicable Loans
of the Accepting Lenders as a new Facility of loans hereunder (and the Lenders
hereby irrevocably authorize the Administrative Agentto enter into any such
amendments);
provided
that (i) all prepayments of Loans (i.e., both extended and
non-extended)
shall continue to be made on a ratable basis among all Lenders, based on
therelative amounts of their Loans unless a Permitted Amendment provides for
lesser treatment of the Loans of the Accepting Lenders, until the repayment of
the
non-extended
Loans on the relevant scheduledmaturity date in respect thereof. The
Administrative Agent and the Lenders hereby acknowledge that in respect of
payments on
non-extended
Loans on the scheduled maturity date in respect thereof the pro ratapayment
requirements contained elsewhere in this Agreement are not intended to apply
to the transactions effected pursuant to this Section 2.26. This Section 2.26
shall supersede any provisions in Section 2.17 or Section 10.1 tothe contrary.
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SECTION 3. LETTERS OF CREDIT
3.1
L/C Commitment
. (a) Subject to the terms and conditions hereof, the Issuing Lender, in
reliance on the agreements of the otherRevolving Lenders set forth in Section
3.4(a), agrees to issue letters of credit ("
Letters of Credit
") during the Availability Period for the account of the Borrower on any
Business Day during the Revolving Commitment Period insuch form as may be
approved from time to time by the Issuing Lender; provided that the Issuing
Lender shall not issue any Letter of Credit if, after giving effect to such
issuance, the Total Revolving Extensions of Credit would exceed the Line
Cap,subject to the authority of the Administrative Agent, in its sole
discretion, to make Protective Advances pursuant to the terms of Section 2.3.
Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
later thanthe earlier of (x) the first anniversary of its date of issuance (or
such longer period as agreed to by the applicable Issuing Lender in its sole
discretion) and (y) the date that is five Business Days prior to the Revolving
TerminationDate, provided that any Letter of Credit with a
one-year
term may provide for the renewal thereof for additional
one-year
periods (which shall in no event extend beyondthe date referred to in clause
(y) above unless such Letter of Credit has been cash collateralized or other
arrangements backstopping such Letter of Credit have been made, in each case,
reasonably satisfactory to the Issuing Lender). No morethan 20 Letters of
Credit shall be outstanding at any time.
(b) The Issuing Lender shall not at any time be obligated to issue any
Letterof Credit if the issuance of such Letter of Credit would (i) result in
such Issuing Lender's L/C Obligations exceeding such Lender's L/C Commitment,
(ii) violate one or more policies of the Issuing Lender applicable to letters
ofcredit generally or (iii) conflict with, or cause the Issuing Lender or any
L/C Participant to exceed any limits imposed by, any applicable Requirement of
Law. Without limiting the foregoing and without affecting the limitations
containedherein, it is understood and agreed that the Borrower may from time
to time request that an Issuing Lender issue Letters of Credit in excess of
such Issuing Lender's L/C Commitment in effect at the time of such request,
and each Issuing Lenderagrees to consider any such request in good faith. Any
Letter of Credit so issued by an Issuing Lender in excess of its L/C
Commitment then in effect shall nonetheless constitute a Letter of Credit for
all purposes of this Agreement, and shall notaffect the L/C Commitment of any
other Issuing Bank.
(c) The parties hereto agree that the Existing Letters of Credit shall be
deemed tobe Letters of Credit for all purposes under this Agreement, without
any further action by the Borrower, the Issuing Lender or any other Person.
3.2
Procedure for Issuance of Letter of Credit
. The Borrower may from time to time request that the Issuing Lender issue a
Letter ofCredit (or the amendment, renewal or extension of an outstanding
Letter of Credit) by delivering to the Issuing Lender at its address for
notices specified herein, with a copy to the Administrative Agent, an
Application therefor, completed to thereasonable satisfaction of the Issuing
Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any
Application, the Issuing Lender will process such Application and
thecertificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
the Issuing Lender berequired to issue, amended, renew or extend any Letter of
Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuingthe original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed to by the Issuing
Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following theissuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
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3.3
Fees and Other Charges
. (a) The Borrower will pay a fee on all outstandingLetters of Credit at a per
annum rate equal to the Applicable Margin then in effect with respect to
Revolving Loans that are Term SOFR Loans, shared ratably among the Revolving
Lenders and payable quarterly in arrears on each Fee Payment Date afterthe
issuance date. In addition, the Borrower shall pay to each Issuing Lender for
its own account a fronting fee equal to 0.125% per annum
multiplied by
the daily average undrawn and unexpired amount of each Letter of Credit issued
by suchIssuing Lender, payable quarterly in arrears on each Fee Payment Date.
(b) In addition to the foregoing fees, the Borrower shall pay orreimburse the
Issuing Lender for such normal and customary costs and expenses as are
incurred or charged by the Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
3.4
L/C Participations
. (a) The Issuing Lender irrevocably agrees to grant and hereby grants to each
L/C Participant, and, toinduce the Issuing Lender to issue Letters of Credit,
each L/C Participant irrevocably agrees to accept and purchase and hereby
accepts and purchases from the Issuing Lender, on the terms and conditions set
forth below, for such L/CParticipant's own account and risk an undivided
interest equal to such L/C Participant's Revolving Percentage in the Issuing
Lender's obligations and rights under and in respect of each Letter of Credit
and the amount of each draftpaid by the Issuing Lender thereunder. Each L/C
Participant agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms ofSection 3.5 (or in the event that any
reimbursement received by the Issuing Lender shall be required to be returned
by it at any time), such L/C Participant shall pay to the Issuing Lender upon
demand at the Issuing Lender's address fornotices specified herein an amount
equal to such L/C Participant's Revolving Percentage of the amount that is not
so reimbursed (or is so returned). Each L/C Participant's obligation to pay
such amount shall be absolute and unconditionaland shall not be affected by
any circumstance, including (i) any setoff, counterclaim, recoupment, defense
or other right that such L/C Participant may have against the Issuing Lender,
the Borrower or any other Person for any reason whatsoever,(ii) the occurrence
or continuance of a Default or an Event of Default or the failure to satisfy
any of the other conditions specified in Section 5, (iii) any adverse change
in the condition (financial or otherwise) of the Borrower,(iv) any breach of
this Agreement or any other Loan Document by the Borrower, any other Loan
Party or any other L/C Participant or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
(b) If any amount required to be paid by any L/C Participant to the Issuing
Lender pursuant to Section 3.4(a) in respect of anyunreimbursed portion of any
payment made by the Issuing Lender under any Letter of Credit is not paid to
the Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demandan amount
equal to the product of (i) such amount, times (ii) the greater of (x) the
daily average NYFRB Rate during the period from and including the date such
payment is required to the date on which such payment is immediatelyavailable
to the Issuing Lender and (y) a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, times (iii)
a fraction the numerator of which is the number of days that elapseduring such
period and the denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to Section 3.4(a) is not made available
to the Issuing Lender by such L/C Participant within three Business Daysafter
the date such payment is due, the Issuing Lender shall be entitled to recover
from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to the
Alternate Base Rate
plus
the Applicable Margin. A certificate of the Issuing Lender submitted to any
L/C Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.
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(c) Whenever, at any time after the Issuing Lender has made payment under any
Letter ofCredit and has received from any L/C Participant its
pro
rata
share of such payment in accordance with Section 3.4(a), the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from
the Borrower orotherwise, including proceeds of collateral applied thereto by
the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its
pro
rata
share thereof;
provided
,
however
, that in the event that any such payment received by the Issuing Lender shall
be required to be returned by the Issuing Lender, such L/C Participant shall
return to the Issuing Lender the portion thereof previously distributed by
theIssuing Lender to it.
3.5
Reimbursement Obligation of the Borrower
. If any draft is paid under any Letter of Credit, the Borrowershall reimburse
the Issuing Lender for the amount of (a) the draft so paid and (b) any taxes,
fees, charges or other costs or expenses incurred by the Issuing Lender in
connection with such payment, not later than 12:00 Noon, New York Citytime, on
(i) the Business Day that the Borrower receives notice of such draft, if such
notice is received on such day prior to 10:00 A.M., New York City time and
JPMCB is the applicable Issuing Lender, or (ii) if clause (i) above doesnot
apply, the Business Day immediately following the day that the Borrower
receives such notice. Each such payment shall be made to the Issuing Lender at
its address for notices referred to herein in Dollars and in immediately
available funds.Interest shall be payable on any such amounts from the date on
which the relevant draft is paid until payment in full at the rate set forth
in (x) until the Business Day next succeeding the date of the relevant notice,
Section 2.14(b) and(y) thereafter, Section 2.14(c).
3.6
Obligations Absolute
. The Borrower's obligations under this Section 3shall be absolute,
unconditional and irrevocable under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment that the Borrower may have
or have had against the Issuing Lender, any beneficiary of a Letter ofCredit
or any other Person. The Borrower also agrees with the Issuing Lender that the
Issuing Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 3.5 shall not be affected by, among other things,(a)
any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (b) any draft or other document
presented under a Letter of Credit proving to be invalid, fraudulent or forged
in anyrespect or any statement therein being untrue or inaccurate in any
respect, (c) any dispute between or among the Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit may be
transferred or anyclaims whatsoever of the Borrower against any beneficiary of
such Letter of Credit or any such transferee, (d) payment by the Issuing
Lender under a Letter of Credit against presentation of a draft or other
document that does not comply withthe terms of such Letter of Credit, or (e)
any other event or circumstance whatsoever, whether or not similar to any of
the foregoing, that might, but for the provisions of this Section, constitute
a legal or equitable discharge of, or providea right of setoff against, the
Borrower's obligations hereunder. The Issuing Lender shall not have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure tomake any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or message or advice,
howevertransmitted, in connection with any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation
of technical terms or any consequence arising from causes beyond the control
of the Issuing Lender;
provided
that the foregoing shall not be construed to excuse the Issuing Lender from
liability to the Borrower to the extent of any direct damages (as opposed to
special, indirect, consequential or punitive damages, claims in respect of
whichare hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Lender's failure
to exercise care when determining whether drafts and other documents presented
under a Letterof Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct
on the part of the Issuing Lender (as finally determined by a court of
competent jurisdiction), the IssuingLender shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be insubstantial compliance
with the terms of a Letter of Credit, the Issuing Lender may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
informationto the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of
such Letter of Credit.
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3.7
Letter of Credit Payments
. If any draft shall be presented for payment under anyLetter of Credit, the
Issuing Lender shall promptly notify the Administrative Agent of the date and
amount thereof and the Administrative Agent shall provide such notice to the
Borrower;
provided
that any failure to give or delay in givingsuch notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Lender and the Revolving
Lenders pursuant to Section 3.5. The Borrower may request that a Revolving
Loan be made to provide funds for the payment required bythis Section 3.7;
provided
that, after giving effect to any such Revolving Loan, the Line Cap would not
be exceeded at such time. The proceeds of such Revolving Loan shall be paid
directly to the Issuing Lender to reimburse it for thepayment made by it under
the Letter of Credit.
3.8
Applications
. To the extent that any provision of any Application related toany Letter of
Credit is inconsistent with the provisions of this Section 3, the provisions
of this Section 3 shall apply.
3.9
Replacement of an Issuing Lender
. An Issuing Lender may be replaced at any time by (a) the Borrower in its
sole discretion upon written notice to the Administrative Agent;
provided
that there are no outstanding Letters of Creditissued by such Issuing Lender
which are not cash collateralized by the Borrower or (b) written agreement
among the Borrower Representative, the Administrative Agent, the replaced
Issuing Lender and the successor Issuing Lender. TheAdministrative Agent shall
notify the Lenders of any such replacement of an Issuing Lender. At the time
any such replacement shall become effective, the Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Lenderpursuant to Section
3.3. From and after the effective date of any such replacement, (a) the
successor Issuing Lender shall have all the rights and obligations of the
Issuing Lender under this Agreement with respect to Letters of Credit tobe
issued thereafter and (b) references herein to the term "Issuing Lender" shall
be deemed to refer to such successor or to any previous Issuing Lender, or to
such successor and all previous Issuing Lenders, as the context shallrequire.
After the replacement of an Issuing Lender hereunder, the replaced Issuing
Lender shall remain a party hereto and shall continue to have all the rights
and obligations of an Issuing Lender under this Agreement with respect to
Letters ofCredit then outstanding and issued by it prior to such replacement,
but shall not be required to issue additional Letters of Credit.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Lettersof
Credit, the Borrower hereby represents and warrants to the Administrative
Agent and each Lender that:
4.1
Financial Condition
.The audited consolidated balance sheets of the Borrower and its consolidated
Restricted Subsidiaries as at December 31, 2016, December 31, 2017 and
December 31, 2018, and the related consolidated statements of income,stockholder
s' equity and cash flows for the fiscal years ended on such dates, reported on
by and accompanied by an unqualified report from KPMG LLP, present fairly, in
all material respects, the consolidated financial condition of the Borrowerand
its consolidated Restricted Subsidiaries as at such date, and the consolidated
results of its operations and its consolidated cash flows for the respective
fiscal years then ended. The unaudited consolidated balance sheet of the
Borrower and itsconsolidated Restricted Subsidiaries as at March 31, 2019, and
the related unaudited consolidated statement of income, stockholders' equity
and cash flow for the applicable three-month period ended on such date,
present fairly, in allmaterial respects, the consolidated financial condition
of the Borrower and its consolidated Restricted Subsidiaries as at each such
date, and the consolidated
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results of its operations and its consolidated cash flow for the three-month
period then ended (subject to normal
year-end
audit adjustments). All suchfinancial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by
the aforementioned firm of accountants and disclosedtherein), except that the
interim financial statements are subject to
year-end
adjustments and are lacking footnote disclosures.
4.2
No Change
. Since December 31, 2018, there has been no development or event that has had
or could reasonably be expected tohave a Material Adverse Effect.
4.3
Existence; Compliance with Law
. Each Group Member (a) is duly organized or formed,validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate or similar organizational power and authority, and the legal
right, to own and operate its property, to lease the property itoperates as
lessee and to conduct the business in which it is currently engaged, (c) is
duly qualified as a foreign corporation or other organization and in good
standing under the laws of each jurisdiction where its ownership, lease
oroperation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect and (d) is
in compliance withall Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
4.4
Power; Authorization; Enforceable Obligations
. (a) Each Loan Party has the corporate or similar organizational power
andauthority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and, in the case of the Borrower, to obtain
extensions of credit hereunder. Each Loan Party has taken all necessary
corporate or similarorganizational action to authorize the execution, delivery
and performance of the Loan Documents to which it is a party and, in the case
of the Borrower, to authorize the extensions of credit on the terms and
conditions of this Agreement. Each LoanDocument has been duly executed and
delivered on behalf of each Loan Party party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party partythereto,
enforceable against each such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors'rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(b) No consentor authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required in
connection with the extensions of credit hereunder or with the execution,
delivery, performance, validity orenforceability of this Agreement or any of
the Loan Documents, except (i) consents, authorizations, filings and notices
that have been obtained or made and are in full force and effect and (ii) the
filings referred to in Section 4.19.
4.5
No Legal Bar
. The execution, delivery and performance of this Agreement and the other Loan
Documents, the borrowings hereunderand the use of the proceeds thereof will
not violate any Requirement of Law or any Contractual Obligation of any Group
Member, except for violations that could not reasonably be expected to have a
Material Adverse Effect, and will not result in, orrequire, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other
than the Liens created by the Security Documents).
4.6
Litigation
. No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to theknowledge of the Borrower,
threatened by or against any Group Member or against any of their respective
properties (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) that couldreasonably be
expected to have a Material Adverse Effect if determined adversely to any
applicable Group Member.
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4.7
No Default
. No Default or Event of Default has occurred and is continuing.
4.8
Ownership of Property; Liens
. Each Group Member has such title in fee simple or valid leasehold to the
real property owned orleased by it as is necessary to the conduct of its
business and valid and legal title to all of its personal property owned by
it, in each case, subject to Permitted Liens.
4.9
Intellectual Property
. Except as could not reasonably be expected to have a Material Adverse
Effect, each Group Member owns, or islicensed to use, all material
Intellectual Property reasonably necessary for the conduct of its business as
currently conducted, free and clear of all Liens, except as permitted by
Section 7.3, and to the knowledge of each Loan Party, the useof any such
material Intellectual Property and the conduct of each of the Group Members
does not infringe in any material respect upon the rights of any Person.
Except as could not reasonably be expected to have a Material Adverse Effect,
no claimhas been asserted or is pending by any Person challenging or
questioning the use of any material Intellectual Property or the validity or
effectiveness of any material Intellectual Property, nor does the Borrower
know of any valid basis for any suchclaim.
4.10
Taxes
. Each Group Member has filed or caused to be filed all Federal, state and
other material Tax returns that arerequired to be filed and has paid all Taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other Taxes, fees or other charges imposed
on it or any of its property by any GovernmentalAuthority (other than (i) any
the amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the relevantGroup Member, or (ii) to
the extent that the failure to file or pay, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect); to the
knowledge of the Borrower, no material Liens for Taxes have beenfiled, and, to
the knowledge of the Borrower, no claim is being asserted, with respect to any
such Tax, fee or other charge.
4.11
Federal Regulations
. The Borrower is not engaged and will not engage, principally or as one of
its important activities, in the business of purchasing or carrying Margin
Stock, or extending credit for the purpose of purchasing or carryingMargin
Stock, and no part of the proceeds of any Revolving Extension of Credit
hereunder will be used to buy or carry any Margin Stock. Following the
application of the proceeds of each Borrowing or drawing under each Letter of
Credit, not more than25% of the value of the assets (either of the Borrower
only or of the Borrower and its Restricted Subsidiaries on a consolidated
basis) will be Margin Stock.
4.12
Labor Matters
. Except as, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect: (a) there areno strikes or other labor disputes
against any Group Member pending or, to the knowledge of the Borrower,
threatened; (b) hours worked by and payment made to employees of each Group
Member have not been in violation of the Fair Labor StandardsAct or any other
applicable Requirement of Law dealing with such matters; and (c) all payments
due from any Group Member on account of employee health and welfare insurance
have been paid or accrued as a liability on the books of the relevantGroup
Member.
4.13
ERISA
. Except as could not reasonably be expected, individually or in the
aggregate, to have a Material AdverseEffect: (a) each Group Member and each of
their respective ERISA Affiliates (and in the case of a Pension Plan or a
Multiemployer Plan, each of their respective ERISA Affiliates) are in
compliance with all applicable provisions and requirementsof ERISA and the
Code and other federal and state laws and the regulations and published
interpretations thereunder with respect to each Plan and Pension Plan and have
performed all their obligations under each Plan and Pension Plan; (b)
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no ERISA Event or Foreign Plan Event has occurred or is reasonably expected to
occur, and no ERISA Affiliate is aware of any fact, event or circumstance that
could reasonably be expected toconstitute or result in an ERISA Event; (c)
each Plan or Pension Plan which is intended to qualify under Section 401(a) of
the Code has received a favorable determination letter from the IRS indicating
that such Plan or Pension Plan is soqualified and the trust related thereto
has been determined by the Internal Revenue Service to be exempt from federal
income tax under Section 501(a) of the Code or an application for such a
determination is currently pending before theInternal Revenue Service and, to
the knowledge of the Borrower, nothing has occurred subsequent to the issuance
of the most recent determination letter which would cause such Plan or Pension
Plan to lose its qualified status; (d) no liabilityto the PBGC (other than
required premium payments), the IRS, any Plan or Pension Plan or any trust
established under Title IV of ERISA has been or is reasonably expected to be
incurred by any Group Member or any of their ERISA Affiliates;(e) each of the
Group Members' ERISA Affiliates has complied with the requirements of Section
515 of ERISA with respect to each Multiemployer Plan and is not in "default"
(as defined in Section 4219(c)(5) of ERISA) withrespect to payments to a
Multiemployer Plan; (f) all amounts required by applicable law with respect
to, or by the terms of, any retiree welfare benefit arrangement maintained by
any Group Member or any ERISA Affiliate or to which any GroupMember or any
ERISA Affiliate has an obligation to contribute have been accrued in
accordance with ASC Topic
715-60;
(g) as of the most recent valuation date for each Multiemployer Plan for which
the actuarialreport is available and except as reported in the most recent Form
10-K
filed with the SEC, no Group Member nor any of their respective ERISA
Affiliates has any potential liability for a complete withdrawalfrom such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section
4221(e) ofERISA; (h) there has been no Prohibited Transaction or violation of
the fiduciary responsibility rules with respect to any Plan or Pension Plan
that has resulted or could reasonably be expected to result in a Material
Adverse Effect; and(i) neither any Group Member nor any ERISA Affiliate
maintains or contributes to, or has any unsatisfied obligation to contribute
to, or liability under, any active or terminated Pension Plan other than (i)
on the Closing Date, thoselisted on Schedule 4.13 hereto and (ii) thereafter,
Pension Plans not otherwise prohibited by this Agreement. Except as disclosed
on Schedule 4.13, the present value of all accumulated benefit obligations
under each Pension Plan, did not, as ofthe close of its most recent plan year,
exceed by more than $10,000,000 the fair market value of the assets of such
Pension Plan allocable to such accrued benefits (determined in both cases
using the applicable assumptions for financial statementreporting purposes
under ASC Topic 715), and the present value of all accumulated benefit
obligations of all underfunded Pension Plans did not, as of the date of the
most recent financial statements reflecting such amounts, exceed by more
than$10,000,000 the fair market value of the assets of all such underfunded
Pension Plans (determined in both cases using the applicable assumptions for
financial statement reporting purposes under ASC Topic 715).
4.14
Investment Company Act; Other Regulations
. No Loan Party is an "investment company", or a company "controlled"by an
"investment company", within the meaning of the Investment Company Act of
1940, as amended. No Loan Party is subject to regulation under any Requirement
of Law (other than Regulation X of the Federal Reserve Board) that limits
itsability to incur Indebtedness.
4.15
Subsidiaries; Capital Stock
. As of the Closing Date, (a) Schedule 4.15 sets forth thename and
jurisdiction of incorporation or formation, as applicable, of each Subsidiary
and, as to each such Subsidiary, the percentage of each class of Capital Stock
owned by any Loan Party and (b) there are no outstanding subscriptions,options,
warrants, calls, rights or other agreements or commitments (other than stock
options and restricted stock units granted to employees or directors and
directors' qualifying shares) of any nature relating to any Capital Stock of
theBorrower or any Restricted Subsidiary, except (i) with respect to Capital
Stock of Loan Parties, as created by the Loan Documents and (ii) otherwise, as
permitted by this Agreement.
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4.16
Use of Proceeds
. The proceeds of the Revolving Loans and the Letters of Credit,shall be used
for general corporate purposes (including to finance the Transactions).
4.17
Environmental Matters
. Except as,individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect:
(a) Materials of EnvironmentalConcern are not present at, on, under, in, or
about any real property now or formerly owned, leased or operated by any Group
Member or at any other location (including, without limitation, any location
to which Materials of Environmental Concernhave been sent for
re-use
or recycling or for treatment, storage, or disposal), in amounts or
concentrations or under circumstances that constitute or constituted a
violation of, or could give rise toliability under, any Environmental Law;
(b) no Group Member has received or is aware of any notice of violation,
alleged violation,
non-compliance,
liability or potential liability under or relating to any Environmental Law,
nor does the Borrower have knowledge or reason to believe that any such notice
will be received or is being threatened;
(c) no judicial, arbitral, governmental or administrative litigation,
investigation, proceeding or similar action is pending or, to theknowledge of
the Borrower, threatened, under any Environmental Law to which any Group
Member is or will be named as a party, nor has any Group Member entered into
or agreed to any settlements or other agreements, consent decrees or other
decrees,consent orders, administrative orders or other orders, or other
administrative or judicial requirements relating to compliance with or
liability under any Environmental Law that have not been fully and finally
resolved;
(d) each Group Member, is in compliance, and within the period of all
applicable statute of limitation has been in compliance, with allapplicable
Environmental Laws; and
(e) no Group Member has assumed or retained, by contract or operation of law,
any liability of anyother Person under Environmental Laws or with respect to
any Material of Environmental Concern.
4.18
Accuracy of Information, etc.
The statements and information contained in this Agreement, the other Loan
Documents, and the other material documents, certificates and statements
furnished by or on behalf of any Loan Party to the Administrative Agent or the
Lenders, or any ofthem, in writing, for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents (as
modified or supplemented by other information so furnished), taken together as
a whole, did not contain as of the date suchwritten statements, information,
documents or certificates were so furnished, any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements contained herein or therein not misleading in any materialrespect.
The projections and
pro
forma
financial information contained in the materials referenced above are based
upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, itbeing recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projectedresults set forth
therein by a material amount.
4.19
Security Documents
. The Guarantee and Collateral Agreement is effective tocreate in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral described therein and
proceeds thereof. In the case of the Pledged Collateral required to
bedelivered in the Guarantee and Collateral Agreement, when such Pledged
Collateral is delivered (in accordance with the Intercreditor Agreements) to
the Administrative Agent or
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the
Non-ABL
Representative (together with a properly completed and signed undated
endorsement), in the case of Collateral consisting of Deposit Accounts
orSecurities Accounts, when such Deposit Accounts or Securities Accounts, as
applicable, are subject to an Account Control Agreement (as defined in the
Guarantee and Collateral Agreement) and in the case of the other Collateral
described in theGuarantee and Collateral Agreement that can be perfected by
the filing of a financing statement or other filing, when financing statements
and other filings specified on Schedule 4.19 in appropriate form are filed in
the offices specified onSchedule 4.19, the Guarantee and Collateral Agreement
shall constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof, as security for theObligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to the
Lien of any other Person (except Liens expressly permitted by this Agreement
or the Intercreditor Agreements, in each case, to beprior to the Liens on the
Collateral).
4.20
Solvency
. As of the Closing Date and after giving effect to the Transactions,
theBorrower and its Restricted Subsidiaries, on a consolidated basis, are
Solvent.
4.21
Anti-Corruption Laws, Anti-Money Laundering andSanctions
. The Borrower has implemented and maintains in effect policies and procedures
designed to ensure compliance in all material respects by the Borrower, its
Subsidiaries and their respective directors, officers, employees and agents
withAnti-Corruption Laws and applicable Sanctions, and the Borrower, its
Subsidiaries and their respective officers and directors and to the knowledge
of the Borrower its employees and agents, are in compliance with Anti-Corruption
Laws and applicableSanctions in all material respects. None of (a) the
Borrower, any Subsidiary, any of their respective directors or officers, or
(b) to the knowledge of the Borrower, any employee or agent of the Borrower or
any Subsidiary that will act inany capacity in connection with or benefit from
the credit facility established hereby, is a Sanctioned Person. No Revolving
Extensions of Credit, use of proceeds or other transaction contemplated by
this Agreement will violate any Anti-CorruptionLaw or applicable Sanctions.
4.22
Plan Assets; Prohibited Transactions
. None of the Borrower or any of its Subsidiaries is anentity deemed to hold
"plan assets" (within the meaning of the Plan Asset Regulations), and neither
the execution, delivery nor performance of the transactions contemplated under
this Agreement, including the making of any Loan hereunder,will give rise to a
non-exempt
prohibited transaction under Section 406 of ERISA or Section 4975 of the Code.
SECTION 5. CONDITIONS PRECEDENT
5.1
[Reserved]
.
5.2
Conditions to Each Extension of Credit
. The agreement of each Lender to make any extension of credit requested to be
made by it on any date (including, for the avoidance of doubt, the making of
its Commitments and the making of its initialextension of credit on the
Closing Date, but excluding any Protective Advance) is subject to the
satisfaction of the following conditions precedent:
(a)
Representations and Warranties
. Each of the representations and warranties made by any Loan Party in or
pursuant to the LoanDocuments shall be true and correct in all material
respects (or in all respects if qualified by materiality) on and as of such
date as if made on and as of such date, except to the extent expressly made as
of an earlier date, in which case suchrepresentations and warranties shall
have been so true and correct as of such earlier date.
(b)
No Default
. No Default or Event ofDefault shall have occurred and be continuing on such
date or after giving effect to the extensions of credit requested to be made
on such date.
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(c)
Borrowing Base Certificate
. The Administrative Agent shall have received acompleted Borrowing Base
Certificate concurrently with the delivery of any Borrowing Request delivered
during a Quarterly Borrowing Base Period if immediately after giving pro forma
effect to such extension of credit, a Quarterly Borrowing BasePeriod would no
longer be in effect as a result of such extension of credit, unless the
Borrower has delivered a Borrowing Base Certificate within the 30 calendar
days prior to the date specified in the Borrowing Request as the date on which
suchextension of credit is to be made.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder (other thanthe initial extensions of credit on the Closing Date and
other than with respect to a Protective Advance) shall constitute a
representation and warranty by the Borrower as of the date of such extension
of credit that the conditions contained in thisSection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect,
any Letter of Credit remains outstanding or any Loan or otheramount is owing
to any Lender or the Administrative Agent hereunder, the Borrower shall and,
in the case of Sections 6.3 through 6.8, 6.10 and 6.13, shall, to the extent
applicable, cause each of its Restricted Subsidiaries to and, in the case
ofSection 6.12, shall cause each of its Domestic Subsidiaries to:
6.1
Financial Statements
. Furnish to the Administrative Agentfor delivery to each Lender:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Borrower,a copy of the audited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of such
year and the related audited consolidated statements of income, stockholders'
equity and cash flows for such year, settingforth in each case in comparative
form the figures for the previous year, reported on without a "going concern"
or like qualification or exception, or qualification arising out of the scope
of the audit, by KPMG, LLP or other independentcertified public accountants of
nationally recognized standing acceptable to the Administrative Agent;
(b) as soon as available, but inany event not later than 45 days after the end
of each of the first three quarterly periods of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarterand the related
unaudited consolidated statements of income, stockholders' equity and cash
flows for such quarter and/or the portion of the fiscal year through the end
of such quarter, as required by applicable SEC rules, setting forth in
eachcase in comparative form the figures for the corresponding period or
periods of the previous fiscal year (or, in the case of the balance sheet, as
of the end of the previous fiscal year), certified by a Responsible Officer as
being fairly stated inall material respects (subject to normal
year-end
audit adjustments and the absence of footnotes);
(c) during a Full Cash Dominion Period, as soon as available, but in any event
not later than 30 days after the end of each calendar month ofthe Borrower,
the unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and a statement of cash flows related to
capitalexpenditures, investing activities and financing activities for such
month and the portion of the fiscal year through the end of such month,
setting forth in each case in comparative form the figures for the previous
year, certified by a ResponsibleOfficer as being fairly stated in all material
respects (subject to normal
year-end
audit adjustments), it being understood that, for the avoidance of doubt, no
such monthly financial statements shall berequired to be delivered if the Full
Cash Dominion Period that triggered the requirement to deliver monthly
financial statements pursuant to this Section 6.1(c) has ended, until the
occurrence of the next Full Cash Dominion Period, if any; and
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(d) if any Unrestricted Subsidiary exists, concurrently with each delivery of
financialstatements under clause (a), (b) or (c) above, financial statements
(in substantially the same form as the financial statements delivered pursuant
to clause (a), (b) or (c) above, as applicable) prepared on the basis of
consolidatingthe accounts of the Borrower and its Restricted Subsidiaries and
treating any Unrestricted Subsidiaries as if they were not consolidated with
the Borrower, together with an explanation of reconciliation adjustments in
reasonable detail.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with
GAAPapplied (except as approved by such accountants or officer, as the case
may be, and disclosed in reasonable detail therein) consistently throughout
the periods reflected therein and with prior periods.
Documents required to be delivered pursuant to Section 6.1(a), (b), (c) or (d)
or Section 6.2(c) or (d) may be deliveredelectronically and if so delivered,
shall be deemed to have been delivered on the date on which (i) such documents
are posted on the Borrower's behalf on IntraLinks/IntraAgency or another
relevant Internet or intranet website, if any, towhich each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent) or (ii) such documents are
filed of record with the SEC;
provided
that
, uponwritten request by the Administrative Agent, the Borrower shall deliver
paper copies of such documents to the Administrative Agent for further
distribution to each Lender until a written request to cease delivering paper
copies is given by theAdministrative Agent. The Administrative Agent shall
have no obligation to request the delivery of or to maintain or deliver to
Lenders paper copies of the documents referred to above, and in any event
shall have no responsibility to monitorcompliance by the Borrower with any
such request for delivery, and each Lender shall be solely responsible for
timely accessing posted documents or requesting delivery of paper copies of
such documents from the Administrative Agent and maintainingits copies of such
documents.
6.2
Certificates; Borrowing Base; Other Information
. Furnish to the Administrative Agent fordelivery to each Lender:
(a) [reserved];
(b) concurrently with the delivery of any financial statements pursuant to
Sections 6.1(a) and 6.1(b), (i) a Compliance Certificate executedby a
Responsible Officer, which Compliance Certificate shall (x) include a
statement that, to each such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and
otheragreements, and satisfied every condition contained in this Agreement and
the other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge
of any Default orEvent of Default except as specified in such certificate, (y)
in the case of quarterly or annual financial statements, set forth, in
reasonable detail, the calculation of the Consolidated Fixed Charge Coverage
Ratio for the Reference Periodending as of the last day of the fiscal year or
fiscal quarter for which financial statements are being delivered pursuant to
Section 6.1 and (ii) in the case of quarterly or annual financial statements,
to the extent not previouslydisclosed to the Administrative Agent, (x) a
description of any change in the jurisdiction of organization of any Loan
Party, (y) a list of any material registered Intellectual Property acquired or
created by any Loan Party and (z) adescription of any Person that has become a
Group Member, a Restricted Subsidiary or an Unrestricted Subsidiary, in each
case since the date of the most recent report delivered pursuant to this
clause (ii) (or, in the case of the first such reportso delivered, since the
Closing Date);
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(c) as soon as available, and in any event no later than 90 days after the end
of eachfiscal year of the Borrower, a detailed consolidated budget for the
following fiscal year (including a projected consolidated balance sheet of the
Borrower and its Restricted Subsidiaries as of the end of the following fiscal
year, the relatedconsolidated statements of projected cash flow and projected
income and a description of the underlying assumptions applicable thereto
(collectively, the "
Budget
"), which Budget shall in each case be accompanied by a certificate ofa
Responsible Officer stating that such Budget is based on reasonable estimates,
information and assumptions and that such Responsible Officer has no reason to
believe that such Budget is incorrect or misleading in any material respect;
(d) within 45 days after the end of each fiscal quarter of the Borrower (or 90
days, in the case of the fourth fiscal quarter of each fiscalyear), a
narrative discussion and analysis of the financial condition and results of
operations of the Borrower and its Restricted Subsidiaries for such fiscal
quarter and for the period from the beginning of the then current fiscal year
to the endof such fiscal quarter, as compared to the comparable periods of the
previous year;
(e) promptly after the same are sent, copies of all financial statements and
reports that the Borrower sends to the holders of any class ofits public debt
securities or public equity securities and, promptly after the same are filed,
copies of all financial statements and reports that the Borrower may make to,
or file with, the SEC;
(f) promptly following receipt thereof, copies of any documents described in
Section 101(k) or 101(l) of ERISA that any Group Member orany ERISA Affiliate
may request with respect to any Multiemployer Plan or any documents described
in Section 101(f) of ERISA that any Group Member or any ERISA Affiliate may
request with respect to any Pension Plan;
provided
, that if therelevant Group Members or ERISA Affiliates have not requested
such documents or notices from the administrator or sponsor of the applicable
Multiemployer Plans, then, upon reasonable request of the Administrative
Agent, such Group Member or theERISA Affiliate shall promptly make a request
for such documents or notices from such administrator or sponsor and the
Borrower shall provide copies of such documents and notices to the
Administrative Agent promptly after receipt thereof;
(g) as soon as available but in any event within 25 calendar days of the end
of each calendar month (or within 25 calendar days of the end ofeach quarterly
period of each fiscal year during a Quarterly Borrowing Base Period or within
five Business Days of the end of each week during a Full Cash Dominion
Period), as of the last day of the period then ended, a Borrowing Base
Certificateand the information supporting the Borrowing Base calculation
required by the Borrowing Base Certificate (including the information set
forth on the schedule of reporting requirements attached thereto (in each case
as modified from time to time bythe Administrative Agent in its Permitted
Discretion)), an inventory report (including aging), an accounts receivable
report (including aging) and any additional reports or information with
respect to the Borrowing Base as the Administrative Agentmay reasonably
request or, in addition, at the Borrower's discretion, a Borrowing Base
Certificate and the information supporting the Borrowing Base calculation
required by the Borrowing Base Certificate (including the information set
forth onthe schedule of reporting requirements attached thereto (in each case
as modified from time to time by the Administrative Agent in its Permitted
Discretion)) may be delivered prior to any Scheduled Borrowing Base Delivery
Date, and if the Borrowerso elects, then the Borrower must deliver a Borrowing
Base Certificate within 5 Business Days of the end of each week (or within 25
calendar days of the end of each month during a Quarterly Borrowing Base
Period) until the next Scheduled BorrowingBase Delivery Date. The Borrower
shall be required to update the aggregate amount and schedule, in each case,
related to ineligible Accounts and ineligible Inventory concurrently with the
delivery of each Borrowing Base Certificate;
provided
that, if neither a Quarterly Borrowing Base Period nor a Weekly Borrowing Base
Period is in effect, the Borrower shall not be required to provide such update
concurrently with the Borrowing Base Certificate to be delivered with respect
to the firsttwo months of each fiscal quarter unless (i) a Default or Event of
Default is continuing, (ii) a Full Cash Dominion Period is in effect, or (iii)
the aggregate amount of Loans outstanding are greater than or equal to ten
percent (10%)of the Total Commitments.
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(h) an annex with each Borrowing Base Certificate delivered to the
Administrative Agentpursuant to Section 6.2(g) if, subsequent to the Closing
Date, a Loan Party shall acquire or obtain any Inventory that contains or
bears intellectual property rights licensed to any Loan Party that may be sold
or otherwise disposed of without(i) infringing the rights of such licensor,
(ii) violating any contract with such licensor, or (iii) incurring any
liability with respect to payment of royalties other than royalties incurred
pursuant to the sale of such Inventoryunder the current licensing agreement,
which annex shall specify all reasonable details (including the location,
title, patent number(s) and issue date) as to the Inventory so acquired or
obtained and the intellectual property rights licensed to theLoan Party in
connection therewith.
(i) promptly, such (x) additional financial and other information as the
Administrative Agentmay from time to time reasonably request and (y)
information and documentation reasonably requested by the Administrative Agent
or any Lender for purposes of compliance with applicable "know your customer"
and anti-money launderingrules and regulations, including the Patriot Act.
6.3
Payment of Obligations
. Pay, discharge or otherwise satisfy at or beforematurity or before they
become delinquent, as the case may be, all its material obligations of
whatever nature (including Taxes), except where (a) the amount or validity
thereof is currently being contested in good faith by appropriateproceedings
and reserves to the extent required by GAAP with respect thereto have been
provided on the books of the relevant Group Member or (b) the failure to make
such payments, individually or in the aggregate, could not reasonably
beexpected to have a Material Adverse Effect.
6.4
Maintenance of Existence; Compliance
. (a) (i) Preserve, renew and keep infull force and effect its organizational
existence and (ii) take all reasonable action to maintain all rights,
privileges and franchises necessary in the normal conduct of its business,
except, in each case, as otherwise permitted bySection 7.4, Section 7.5 and
except, in the case of clause (ii) above, to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; (b) comply
with all Contractual Obligations andRequirements of Law except to the extent
that failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect; and (c) maintain in effect and
enforce policies and procedures reasonably designedto ensure compliance in all
material respects by the Borrower, its Subsidiaries and their respective
directors, officers, employees and agents with Anti-Corruption Laws and
applicable Sanctions.
6.5
Maintenance of Property; Insurance
. (a) Maintain, with financially sound and reputable insurance companies,
insurance in suchamounts and against such risks as are customarily maintained
by companies engaged in the same or similar businesses operating in the same
or similar locations (including hazard and business interruption insurance)
and (b) cause, in the case ofeach property or casualty insurance policy, as
requested by the Administrative Agent, to be endorsed to the benefit of the
Administrative Agent (including, without limitation, by naming the
Administrative Agent as lender loss payee and/or additionalinsured). If the
Borrower or any other Loan Party shall fail to maintain insurance in
accordance with this Section 6.5, or if the Borrower or any other Loan Party
shall fail to so endorse and deliver all policies or certificates with
respectthereto, the Administrative Agent shall have the right (but shall be
under no obligation) to procure such insurance and the Borrower agrees to
reimburse the Administrative Agent for all reasonable costs and expenses of
procuring such insurance.
6.6
Inspection of Property; Books and Records; Discussions; Appraisals; Field
Examinations
. (a) (i) Keep proper books of recordsand account in which full, true and
correct (in all material respects) entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation
to its business and activities and (ii) uponreasonable prior notice,
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permit representatives of the Administrative Agent or any Lender to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable timeand as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Group Members with officers and employees of the Group
Members and, accompanied by one or more officers ordesignees of the Borrower
if requested by the Borrower, with their independent certified public
accountants;
provided
that excluding any such visits and inspections during the continuation of an
Event of Default (x) only theAdministrative Agent, acting individually or on
behalf of the Lenders may exercise rights under this Section 6.6(a) and (y)
the Administrative Agent shall not exercise rights under this Section 6.6(a)
more often than one time duringany calendar year.
(b) No more than once in each twelve month period, at the request of the
Administrative Agent, the Loan Parties willcooperate with an appraiser
selected and engaged by the Administrative Agent to provide Inventory
appraisals or updates thereof (the "
Annual Inventory Appraisal
"), prepared on a basis reasonably satisfactory to the AdministrativeAgent,
such appraisals and updates to include information required by applicable law
and regulations;
provided
that (i) if an Event of Default has occurred and is continuing, there shall be
no limitation on the number or frequency ofsuch appraisals and (ii) in
addition to the Annual Inventory Appraisal, if Availability is less than or
equal to the greater of (x) 15% of the Line Cap and (y) $38.0 million for a
period of five consecutive Business Days, the Loan Partieswill cooperate with
the Administrative Agent to provide such appraisals (at the request of the
Administrative Agent) on one additional occasion during such twelve month
period. For purposes of this Section 6.6(b), it is understood and agreedthat a
single appraisal may consist of appraisals conducted at multiple relevant
sites and involve one or more relevant Loan Parties and their assets. All such
appraisals shall be commenced upon reasonable notice to the Borrower and
performed duringnormal business hours of the Borrower, and all reasonable
out-of-pocket
costs of such appraisals shall be at the sole expense of the Loan Parties.
(c) No more than once in each twelve month period, at the request of the
Administrative Agent, the Loan Parties will permit, upon reasonablenotice, the
Administrative Agent or its designee to conduct a field examination (the "
Annual Field Examination
") to ensure the adequacy of Collateral included in any Borrowing Base and
related reporting and control systems anddetermine any variance between the
Loan Parties' general ledger and perpetual inventory report;
provided
that (i) if an Event of Default has occurred and is continuing, there shall be
no limitation on the number or frequency of suchfield examinations and (ii) in
addition to the Annual Field Examination, if Availability is less than or
equal to the greater of (x) 15% of the Line Cap and (y) $38.0 million for a
period of five consecutive Business Days, the Loan Partieswill permit the
Administrative Agent to conduct such examinations (at the request of the
Administrative Agent) on one additional occasion during such twelve month
period. For purposes of this Section 6.6(c), it is understood and agreed
that(i) a single field examination may be conducted at multiple relevant sites
and involve one or more relevant Loan Parties and their assets and (ii) the
Administrative Agent shall use commercially reasonable efforts to coordinate
any suchfield exams. All such field examinations shall be commenced upon
reasonable notice to the Borrower and performed during normal business hours
of the Borrower, and all reasonable
out-of-pocket
costs of such field examinations shall be at the sole expense of the Loan
Parties.
(d) Concurrently with the Annual Field Examination the Borrower will provide,
an updated customer list for each Loan Party, which list shallstate the
customer's name, mailing address and phone number, delivered electronically in
a text formatted file acceptable to the Administrative Agent and certified as
true and correct by a Responsible Officer of the Borrower;
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6.7
Notices
. Promptly give notice to the Administrative Agent, on behalf of eachLender, of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
any Group Member or (ii) litigation, investigation orproceeding that may exist
at any time between any Group Member and any Governmental Authority, that in
either case, if not cured or if adversely determined, as the case may be,
could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member which relates to
any Loan Document;
(d) (i) as soon as reasonably possible upon becoming aware of the occurrence
of or forthcoming occurrence of any material ERISA Event, awritten notice
specifying the nature thereof, what action the Borrower, any of the other
Group Members or any of their respective ERISA Affiliates has taken, is taking
or proposes to take with respect thereto and, when known, any action taken
orthreatened by the IRS, the Department of Labor or the PBGC with respect
thereto; and (ii) with reasonable promptness, upon the Administrative Agent's
reasonable request, copies of (1) each Schedule SB (Actuarial Information) to
theannual report (Form 5500 Series) filed by the Borrower, any of the other
Group Members or any of their respective ERISA Affiliates with the IRS with
respect to each Pension Plan; (2) all notices received by the Borrower, any of
the other GroupMembers or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning a material ERISA Event; and (3) copies
of such other documents or governmental reports or filings relating to any
Plan or Pension Plan as theAdministrative Agent shall reasonably request;
(e) any other development or event that has had or could reasonably be
expected to have aMaterial Adverse Effect; and
(f) entry into any Permitted A/R Finance Transaction or the accounts
receivable, instruments, chattel paper,obligations, general intangibles and
other similar assets of any Account Debtor becoming subject to a Permitted A/R
Finance Transaction;
provided
that the Borrower may, at its option, provide updates regarding Account
Debtors or the accountsreceivable, instruments, chattel paper, obligations,
general intangibles and other similar assets of which are subject to a
Permitted A/R Finance Transaction.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred
totherein and stating what action the relevant Group Member proposes to take
with respect thereto.
6.8
Environmental Laws
. (a)Comply with, and use reasonable efforts to ensure compliance by all
tenants, subtenants, contractors, subcontractors, and invitees, if any, with,
all applicable Environmental Laws, and obtain and comply with and maintain,
and use reasonable effortsto ensure that all tenants, subtenants, contractors,
subcontractors, and invitees, obtain and comply with and maintain, any and all
Environmental Permits. It being understood that any noncompliance with this
Section 6.8(a) shall be deemed notto constitute a breach of this covenant
provided that, such noncompliance with Environmental Laws, individually or in
the aggregate, could not reasonably be expected to give rise to a Material
Adverse Effect.
(b) Promptly comply with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws, other than such ordersand directives
as to which an appeal has been timely and properly taken in good faith, and
provided
that the pendency of any and all such appeals could not reasonably be expected
to give rise to a Material Adverse Effect.
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6.9
[Reserved]
.
6.10
Additional Collateral, etc.
(a) With respect to any property acquired after the Closing Date by any Loan
Party (other than(v) any real property, (w) any property described in
Sections 6.10(c)
or
(d)
below, (x) any property subject to a Lien expressly permitted by Section
7.3(g), (y) while Permitted
Non-ABL
Loans are outstanding, any
Non-ABL
Priority Collateral as to which the
Non-ABL
Representative determines, in itsreasonable discretion and in consultation
with the Borrower, that the cost of obtaining a security interest therein is
excessive in relation to the value of the security to be afforded thereby) and
(z) any Excluded Property (as defined in theGuarantee and Collateral
Agreement) or other property (other than, while Permitted
Non-ABL
Loans are outstanding,
Non-ABL
Priority Collateral) as to which theAdministrative Agent determines, in its
reasonable discretion and in consultation with the Borrower, that the cost of
obtaining a security interest therein is excessive in relation to the value of
the security to be afforded thereby) as to which theAdministrative Agent, for
the benefit of the Secured Parties, does not have a perfected Lien, promptly
(i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement or such other documents as theAdministrative
Agent deems necessary or reasonably advisable to grant to the Administrative
Agent, for the benefit of the Secured Parties, a security interest in such
property and (ii) take all actions necessary or reasonably advisable to
grantto the Administrative Agent, for the benefit of the Secured Parties, a
perfected security interest in such property with the priority required by the
Intercreditor Agreements, including the filing of Uniform Commercial Code
financing statements insuch jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative
Agent.
(b) [Reserved].
(c) Withrespect to any new Domestic Subsidiary (other than any Excluded
Subsidiary) created or acquired after the Closing Date by any Loan Party
(which, for the purposes of this paragraph (c), shall include any (1) existing
Subsidiary that becomes aDomestic Subsidiary that is not an Excluded
Subsidiary and (2) any existing Domestic Subsidiary that ceases to be an
Excluded Subsidiary) within forty-five (45) days after the creation or
acquisition of such new Domestic Subsidiary (orsuch later date as the
Administrative Agent shall agree to in its sole discretion) (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent deems necessary orreasonably
advisable to grant to the Administrative Agent, for the benefit of the Secured
Parties, a perfected security interest with the priority required by the
Intercreditor Agreements in the Capital Stock of such new Subsidiary that is
owned byany Loan Party, (ii) subject to the Intercreditor Agreements, deliver
to the Administrative Agent the certificates (if any) representing such
Capital Stock, together with undated endorsements and/or stock powers, in
blank, executed anddelivered by a duly authorized officer of the relevant Loan
Party, (iii) cause such new Subsidiary (A) to become a party to the Guarantee
and Collateral Agreement, (B) to take such actions necessary or reasonably
advisable to grant tothe Administrative Agent for the benefit of the Secured
Parties a perfected security interest with the priority required by the
Intercreditor Agreements in the Collateral described in the Guarantee and
Collateral Agreement with respect to such newSubsidiary, including the filing
of Uniform Commercial Code financing statements in such jurisdictions as may
be required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent and (C) subject tothe Intercreditor
Agreements, to deliver to the Administrative Agent a certificate of such
Subsidiary, substantially in the form of Exhibit
C-2,
with appropriate insertions and attachments, and (iv) ifrequested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
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(d) With respect to any new CFC Holding Company or Foreign Subsidiary created
or acquiredafter the Closing Date by any Loan Party (which, for the purposes
of this paragraph (d), shall include any existing Subsidiary that becomes a
CFC Holding Company or a Foreign Subsidiary), within sixty (60) days after the
creation or acquisitionof such new CFC Holding Company or Foreign Subsidiary
(or such later date as the Administrative Agent shall agree to in its sole
discretion) (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and CollateralAgreement as the Administrative
Agent deems necessary or reasonably advisable to grant to the Administrative
Agent, for the benefit of the Secured Parties, a perfected security interest
with the priority required by the Intercreditor Agreements inthe Capital Stock
of such CFC Holding Company or Foreign Subsidiary that is owned by any such
Loan Party (
provided
that in no event shall more than 65% of the total outstanding voting Capital
Stock of any such CFC Holding Company or ForeignSubsidiary be required to be
so pledged), (ii) subject to the Intercreditor Agreements, deliver to the
Administrative Agent the certificates representing such pledged Capital Stock,
together with undated stock powers, in blank, executed anddelivered by a duly
authorized officer of the relevant Loan Party and take such other action as
the Administrative Agent deems necessary or reasonably advisable to perfect
the Administrative Agent's security interest therein.
(e) Notwithstanding anything to the contrary in this Agreement or any other
Loan Document, no Loan Document shall grant the Secured Parties asecurity
interest in any
fee-owned
or leased real property.
6.11
Designation ofSubsidiaries
. The Borrower may at any time after the Closing Date designate any Restricted
Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a
Restricted Subsidiary by delivering to the Administrative Agent a
certificateof a Responsible Officer specifying such designation and certifying
that the conditions to such designation set forth in this Section 6.11 are
satisfied;
provided
that:
(a) both immediately before and immediately after any such designation, no
Event of Default shall have occurred and be continuing;
(b) after giving effect to such designation (and clause (c) below), the pro
forma Consolidated Secured Leverage Ratio for the ApplicableReference Period
is no greater than 2.00 to 1.00;
(c) in the case of a designation of a Restricted Subsidiary as an
UnrestrictedSubsidiary, each Subsidiary of such Subsidiary has been, or
concurrently therewith will be, designated as an Unrestricted Subsidiary in
accordance with this Section 6.11;
(d) the Payment Conditions are met; and
(e) in the case of a designation of a Restricted Subsidiary as an Unrestricted
Subsidiary, such Subsidiary shall substantially simultaneouslybe designated as
an "Unrestricted Subsidiary" under any Permitted
Non-ABL
Loans (and, to the extent applicable, any other agreement governing Permitted
Refinancing Indebtedness in respect of thePermitted
Non-ABL
Loans) or any Permitted Notes and in the case of a designation of an
Unrestricted Subsidiary as a Restricted Subsidiary, such Subsidiary shall
substantially simultaneously be designated as a"Restricted Subsidiary" under
the Permitted
Non-ABL
Loans (and, to the extent applicable, any other agreement governing Permitted
Refinancing Indebtedness in respect of the Permitted
Non-ABL
Loans) or Permitted Notes.
The designation of any Restricted Subsidiary as an UnrestrictedSubsidiary
shall constitute an Investment by the Borrower in such Subsidiary on the date
of designation in an amount equal to the fair market value of the Borrower's
Investment therein (as determined reasonably and in good faith by aResponsible
Officer). The designation of any Unrestricted Subsidiary as a Restricted
Subsidiary shall constitute the incurrence at the time of designation of any
Investment, Indebtedness or Liens of such Subsidiary existing at such
time.Notwithstanding anything to the contrary contained in this Section 6.11,
in no event shall any Restricted Subsidiary contributing more than 20% of the
Borrowing Base be designated an Unrestricted Subsidiary unless the
Administrative Agentreceives a completed Borrowing Base Certificate
concurrently with such designation.
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6.12
Deposit Account Control Agreements
. With respect to any new Deposit Account thatis not an Excluded Account
opened by a Loan Party after the Closing Date or any Excluded Account that
ceases to be an Excluded Account, deliver to the Administrative Agent any
Deposit Account Control Agreement required to be delivered pursuant tothe
Guarantee and Collateral Agreement, in each case, in form and substance
reasonably satisfactory to the Administrative Agent.
6.13
Post-Closing Insurance Certificates
. Within 45 days after the Fifth Amendment Effective Date (or such later date
as the Administrative Agent may agree in its sole discretion), the Borrower
shall provide the Administrative Agent with insurancecertificates with respect
to Inventory, after giving effect to the Augusta Mill Acquisition, satisfying
the requirements of Section 5.12 of the Guarantee and Collateral Agreement.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect,
any Letter of Credit remains outstanding or any Loan or otheramount is owing
to any Lender or the Administrative Agent hereunder, the Borrower shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly:
7.1
Consolidated Fixed Charge Coverage Ratio
. During any period commencing on a date (each a "
Commencement Date
") (a)on which an Event of Default has occurred and is continuing or (b)
occurring on or after Closing Date on which Availability is less than or equal
to the greater of (x) 10% of the Line Cap and (y) $25.0 million, and
continuing until anylater date on which (x) no Event of Default shall be
continuing and (y) on any such date occurring on or after Closing Date,
Availability shall have exceeded the threshold set forth in clause (b) above
for 21 consecutive days afterthe Commencement Date, permit the Consolidated
Fixed Charge Coverage Ratio for the Applicable Reference Period (including,
for the avoidance of doubt, the Applicable Reference Period on the applicable
Commencement Date) to be less than 1.10 to 1.00.
7.2
Indebtedness
. Create, issue, incur, assume, become liable in respect of or suffer to exist
any Indebtedness, except:
(a) Indebtedness in respect of the Obligations of any Group Member under or
secured by this Agreement;
(b) Indebtedness of the Borrower or any Loan Party (i) incurred under or
secured by the
Non-ABL
Facility Documents in an aggregate principal amount not to exceed $820,000,000
or (ii) constituting other Permitted
Non-ABL
Loans incurred under clause (b) of the definition thereof and, in each caseof
clauses (i) and (ii), any Permitted Refinancing Indebtedness in respect
thereof;
(c) Indebtedness of the Borrower or anyRestricted Subsidiary owing to the
Borrower or any Restricted Subsidiary;
provided
that (x) any Indebtedness of any Loan Party shall be unsecured and shall be
subordinated in right of payment to the Obligations on terms customary
forintercompany subordinated Indebtedness, as reasonably determined by the
Administrative Agent, (y) any such Indebtedness owing to any Loan Party shall
be evidenced by a promissory note which shall have been pledged pursuant to
the Guarantee andCollateral Agreement and (z) any such Indebtedness owing by
any Subsidiary that is not a Loan Party to any Loan Party shall be incurred in
compliance with Section 7.7;
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(d) Guarantee Obligations incurred by any Group Member of obligations of any
Group Member tothe extent such obligations are not prohibited hereunder;
provided
that (i) to the extent any such obligations are subordinated to the
Obligations, any such related Guarantee Obligations incurred by a Loan Party
shall be subordinated tothe guarantee of such Loan Party of the Obligations on
terms no less favorable to the Lenders than the subordination provisions of
the obligations to which such Guarantee Obligation relates and (ii) any
Guarantee Obligations incurred by anyLoan Party of obligations of a Restricted
Subsidiary that is not a Loan Party shall be permitted to the extent incurred
in compliance with Section 7.7;
(e) Indebtedness outstanding on the Closing Date and listed on Schedule 7.2(e)
and any Permitted Refinancing Indebtedness in respect thereof;
(f) Indebtedness (including Capital Lease Obligations) secured by Liens
permitted by Section 7.3(g) in an aggregate principal amountnot to exceed at
any one time outstanding the greater of (i) $75,000,000 and (ii) 5% of
Consolidated Net Tangible Assets (as of the date incurred);
(g) Indebtedness representing deferred compensation to employees or directors
of the Borrower and its Restricted Subsidiaries incurred in theordinary course
of business;
(h) Indebtedness incurred in the ordinary course of business or that is
consistent with past practice andowed in respect of any netting services,
overdrafts and related liabilities arising from treasury, depository, credit
or debit card, purchase card or other cash management services or in
connection with any automated clearing-house transfers offunds, in each case
that does not constitute Indebtedness for borrowed money;
(i) Indebtedness arising under any Swap Agreement permittedby Section 7.11;
(j) Indebtedness (other than Indebtedness for borrowed money) that may be
deemed to exist pursuant to anyguarantees, warranty or contractual service
obligations, performance, surety, statutory, appeal, bid, prepayment
guarantee, payment (other than payment of Indebtedness) or completion of
performance guarantees or similar obligations incurred in theordinary course
of business;
(k) Indebtedness in respect of workers' compensation claims, payment
obligations in connection withhealth, disability or other types of social
security benefits, unemployment or other insurance obligations, reclamation
and statutory obligations, in each case in the ordinary course of business;
(l) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn againstinsufficient
funds, so long as such Indebtedness is covered or extinguished within five
Business Days;
(m) Indebtedness consisting of(i) the financing of insurance premiums or
self-insurance obligations or
(ii) take-or-pay
obligations contained in supply or similar agreements in each case inthe
ordinary course of business;
(n) Indebtedness in the form of purchase price adjustments (including in
respect of working capital),earnouts, deferred compensation, indemnification
or other arrangements representing acquisition consideration or deferred
payments of a similar nature incurred in connection with any Permitted
Acquisitions or other Investments permitted underSection 7.7 or Dispositions
permitted under Section 7.5 (other than Dispositions permitted under Section
7.5(m);
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(o) (i) Indebtedness of any Person that becomes a Restricted Subsidiary (or of
any Personnot previously a Restricted Subsidiary that is merged or
consolidated with or into the Borrower or a Restricted Subsidiary in a
transaction permitted hereunder) after the Closing Date, or Indebtedness of
any Person that is assumed by the Borrower orany Restricted Subsidiary in
connection with an acquisition of assets by the Borrower or such Restricted
Subsidiary in a Permitted Acquisition;
provided
that such Indebtedness exists at the time such Person becomes a Restricted
Subsidiary (oris so merged or consolidated) or such assets are acquired and is
not created in contemplation of or in connection with such Person becoming a
Restricted Subsidiary (or such merger or consolidation) or such assets being
acquired and(ii) Permitted Refinancing Indebtedness in respect of such
Indebtedness;
provided
that after giving effect to the applicable acquisition (or merger or
consolidation) or such assumption of Indebtedness, the Consolidated Leverage
Ratio forthe Applicable Reference Period, calculated on a Pro Forma Basis as
of the date of such acquisition (or merger or consolidation) or assumption, is
not in excess of 5.00 to 1.00;
provided
further
that the aggregate principal amount ofIndebtedness of Subsidiaries that are
not Loan Parties outstanding under this Section 7.2(o), together with the
aggregate principal amount of Indebtedness of Restricted Subsidiaries that are
not Loan Parties outstanding under Sections 7.2(u)and 7.2(w), shall not exceed
the
Non-Guarantor
Debt Limit (as of the date of incurrence of Indebtedness pursuant to this
Section 7.2(o));
(p) Indebtedness arising under the membership agreement entered into by the
Borrower with any Farm Credit Lender in connection with theBorrower's
obligation to acquire equity in any such Farm Credit Lender pursuant to
Section 6.11 of the Existing
Non-ABL
Credit Agreement as in effect on the Fifth Amendment Effective Date;
(q) [Reserved]
(r)Indebtedness of the Borrower in respect of the 2028 Notes in an aggregate
principal amount at any time outstanding not to exceed $275,000,000 and any
Permitted Refinancing Indebtedness in respect thereof;
(s) (i) Subordinated Indebtedness in an aggregate principal amount at any time
outstanding not to exceed the greater of (i) $150,000,000 and(ii) 15.00% of
Consolidated Net Tangible Assets (as of the date incurred);
(t) [Reserved].
(u) (i) Permitted Unsecured Indebtedness so long as, at the time of incurrence
of such Permitted Unsecured Indebtedness, the ConsolidatedLeverage Ratio for
the Applicable Reference Period, calculated on a Pro Forma Basis as of the
date of incurrence thereof (but excluding from Unrestricted Cash in making
such pro forma calculation the Net Cash Proceeds of such Indebtedness), is
notin excess of 5.00 to 1.00;
provided
that (x) immediately prior to and immediately after giving effect to the
incurrence of any Permitted Unsecured Indebtedness under this Section 7.2(u),
no Default or Event of Default shall haveoccurred and be continuing and (y)
the aggregate principal amount of Permitted Unsecured Indebtedness of
Restricted Subsidiaries that are not Loan Parties outstanding under this
Section 7.2(u), together with the aggregate principal amountof Indebtedness of
Restricted Subsidiaries that are not Loan Parties incurred pursuant to
Sections 7.2(o) and 7.2(w), shall not exceed the
Non-Guarantor
Debt Limit (as of the date of incurrence of Indebtednesspursuant to this
Section 7.2(u))and (ii) any Permitted Refinancing Indebtedness in respect
thereof;
(v) Indebtedness of theBorrower or any of its Restricted Subsidiaries arising
out of any Permitted Supply Chain Financing;
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(w) additional Indebtedness of the Borrower or any of its Restricted
Subsidiaries in anaggregate principal amount (for the Borrower and all
Restricted Subsidiaries) not to exceed at any time outstanding the greater of
(i) $100,000,000 and (ii) 7.5% of Consolidated Net Tangible Assets (as of the
date incurred);
provided
that theaggregate principal amount of Indebtedness of Restricted Subsidiaries
that are not Loan Parties outstanding under this Section 7.2(w), together with
the aggregate principal amount of Indebtedness of Restricted Subsidiaries that
are not LoanParties outstanding under Section 7.2(o) and 7.2(u), shall not
exceed the
Non-Guarantor
Debt Limit (as of the date of incurrence of Indebtedness pursuant to this
Section 7.2(w));
(x) Attributable Indebtedness in an aggregate principal amount not to exceed
the greater of (i) $75,000,000 and (ii) 5% of Consolidated NetTangible Assets
(as of the date incurred) at any time outstanding, which Attributable
Indebtedness arises out of a sale and leaseback transaction permitted under
Section 7.10;
(y) Indebtedness of any Loan Party in an aggregate principal amount not to
exceed the Net Cash Proceeds (Not Otherwise Applied) received afterthe Closing
Date and on or prior to such date from any issuance of Qualified Capital Stock
by the Borrower (other than any such issuance to a Group Member);
(z) Guarantee Obligations incurred by any Group Member of obligations of any
Joint Venture or Unrestricted Subsidiary to the extent permittedunder Section
7.7(u); and
(aa) (i) Indebtedness secured by Liens permitted by Section 7.3(h)(iii) in an
aggregate principalamount not to exceed $30,000,000 and (ii) Subordinated
Indebtedness permitted to be incurred under the Existing
Non-ABL
Credit Agreement as in effect on the Fifth Amendment Effective Date.
For purposes of determining compliance with this Section 7.2, in the event
that an item of Indebtedness meets the criteria of more than one of
thecategories of Indebtedness described in clauses (a) through (aa) above, the
Borrower may, in its sole discretion, divide or classify or later divide,
classify or reclassify all or a portion of such item of Indebtedness in a
manner that complieswith this Section 7.2 and will only be required to include
the amount and type of such Indebtedness (or any portion thereof) in one or
more of the above clauses;
provided
that all Indebtedness outstanding under the Loan Documents andPermitted
Non-ABL
Loans and, in each case, any Permitted Refinancing Indebtedness in respect
thereof, will at all times be deemed to be outstanding in reliance only on the
exception in Section 7.2(a) andSection 7.2(b), respectively.
For the avoidance of doubt, a permitted refinancing in respect of Indebtedness
incurred pursuant to aDollar-denominated or Consolidated Net Tangible
Assets-governed basket shall not increase capacity to incur Indebtedness under
such Dollar-denominated or Consolidated Net Tangible Assets-governed basket,
and such Dollar-denominated or ConsolidatedNet Tangible Assets-governed basket
shall be deemed to continue to be utilized by the amount of the original
Indebtedness incurred unless and until the Indebtedness incurred to effect
such permitted refinancing is no longer outstanding.
7.3
Liens
. Create, incur, assume or suffer to exist any Lien upon any of its property,
whether now owned or hereafter acquired, except:
(a) Liens for Taxes not yet due or that are being contested in good faith by
appropriate proceedings;
provided
that adequatereserves with respect thereto are maintained on the books of the
Borrower or its Restricted Subsidiaries, as the case may be, to the extent
required by GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other
like Liens arising in the ordinarycourse of business that are not overdue for
a period of more than 60 days or that are being contested in good faith by
appropriate proceedings;
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(c) pledges, deposits or similar Liens in connection with workers'
compensation,unemployment insurance and other social security legislation;
(d) (i) deposits to secure (x) the performance of bids, supplier andother
trade contracts (including government contracts) (other than for borrowed
money), leases, statutory obligations (other than for borrowed money and other
than any such obligation imposed pursuant to Section 430(k) of the Code or
Sections303(k) or 4068 of ERISA) and (y) surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case (with respect to
clauses (x) and (y)) incurred in the ordinary course of business and (ii)
Liens on cashearnest money deposits in connection with any letter of intent or
purchase agreement permitted under this Agreement;
(e) easements,
rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business that, in the aggregate, are not substantial in amount and that do not
inany case materially detract from the value of the property subject thereto
or materially interfere with the ordinary conduct of the business of the
Borrower or any of its Restricted Subsidiaries;
(f) Liens in existence on the Closing Date listed on Schedule 7.3(f), securing
Indebtedness permitted by Section 7.2(e);
provided
that no such Lien is spread to cover any additional property after the Closing
Date and that the amount of Indebtedness secured thereby is not increased
(other than, in the case of Permitted Refinancing Indebtedness, by any
Additional PermittedAmount);
(g) Liens securing Indebtedness of any Group Member incurred pursuant to
Section 7.2(f) to finance the acquisition of fixedor capital assets (and any
Permitted Refinancing Indebtedness in respect thereof);
provided
that (i) such Liens shall be created within 180 days of the acquisition of
such fixed or capital assets, (ii) such Liens do not at any timeencumber any
property other than the property financed by such Indebtedness and the
proceeds and products thereof and (iii) the amount of Indebtedness secured
thereby is not increased; provided further that in the event that purchase
moneyobligations are owed to any Person with respect to financing of more than
one purchase of any fixed or capital assets, such Liens may secure all such
purchase money obligations and may apply to all such fixed or capital assets
financed by suchPerson;
(h) (i) Liens on the Collateral created pursuant to the Security Documents (or
any ABL Security Documents (as defined in theIntercreditor Agreements)), (ii)
Liens on cash granted in favor of any Lenders and/or the Issuing Lender
created as a result of any requirement to provide cash collateral pursuant to
this Agreement and (iii) Liens securing Permitted
Non-ABL
Loans (including, for the avoidance of doubt the
Non-ABL
Facilities) and Indebtedness permitted pursuant to Section 7.2(aa)(i) (and any
Permitted RefinancingIndebtedness in respect of either of the foregoing);
provided
that the Liens on the Collateral securing any such Indebtedness shall be (x)
junior, with respect to the ABL Priority Collateral, to the Liens on the
Collateral securing theObligations and (y) subject to an Intercreditor
Agreement;
(i) any interest or title of a licensor or lessor under any lease orlicense
entered into by any Group Member in the ordinary course of its business and
covering only the assets so leased;
(j) Liens solelyon any cash earnest money deposits made by the Borrower or any
Restricted Subsidiary in connection with any letter of intent or purchase
agreement relating to a Permitted Acquisition;
(k) Liens in favor of any Loan Party so long as (in the case of any Lien
granted by a Loan Party) such Liens are junior to the Liens createdpursuant to
the Security Documents;
(l) Liens arising from filing Uniform Commercial Code or personal property
security financingstatements (or substantially equivalent filings outside of
the United States) regarding leases;
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(m) any option or other agreement to purchase any asset of any Group Member,
the purchase,sale or other disposition of which is not prohibited by Section
7.5;
(n) Liens arising from the rendering of an interim or finaljudgment or order
against any Group Member that does not give rise to an Event of Default;
(o) Liens existing on any asset prior to theacquisition thereof by the
Borrower or any Restricted Subsidiary or existing on any asset of any Person
that becomes a Restricted Subsidiary (or of any Person not previously a
Restricted Subsidiary that is merged or consolidated with or into aRestricted
Subsidiary in a transaction permitted hereunder) after the Closing Date prior
to the time such Person becomes a Restricted Subsidiary (or is so merged or
consolidated) to the extent the Liens on such assets secure Indebtedness
permittedby Section 7.2(o);
provided
that (i) such Liens are not created in contemplation of or in connection with
such acquisition or such Person becoming a Restricted Subsidiary (or such
merger or consolidation) and (ii) such Liensattach at all times only to the
same assets or category of assets that such Liens (other than after acquired
property that is affixed or incorporated into the property covered by such
Lien) attached to, and secure only the same Indebtedness orobligations (or any
Permitted Refinancing Indebtedness in respect thereof permitted by Section
7.2(o)) that such Liens secured, immediately prior to such permitted
acquisition;
(p) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for sale of goods entered into by the Borroweror any
other Restricted Subsidiary in the ordinary course of business and permitted
by this Agreement;
(q)
non-exclusive
licenses, sublicenses, leases and subleases of Intellectual Property of any
Group Member in the ordinary course of business;
(r) Liens encumbering reasonable and customary initial deposits and margin
deposits and similar Liens attaching to brokerage accounts incurredin the
ordinary course of business and not for speculative purposes;
(s) Liens in favor of customs and revenue authorities arising as amatter of
law to secure payment of customs duties in connection with the importation of
goods in the ordinary course of business;
(t)Liens on premium refunds granted in favor of insurance companies (or their
financing affiliates) in connection with the financing of insurance premiums;
(u) banker's liens, rights of setoff or similar rights and remedies as to
deposit accounts or other funds maintained with depositoryinstitutions and
securities accounts and other financial assets maintained with a securities
intermediary;
provided
that such deposit accounts or funds and securities accounts or other financial
assets are not established or deposited for thepurpose of providing collateral
for any Indebtedness and are not subject to restrictions on access by the
Borrower or any Restricted Subsidiary in excess of those required by
applicable banking regulations;
(v) Liens (i) on cash advances in favor of the seller of any property to be
acquired in an Investment permitted pursuant toSection 7.7 to be applied
against the purchase price for such Investment or (ii) consisting of an
agreement to dispose of any property in a Disposition permitted by Section
7.5, in each case, solely to the extent such Investment orDisposition, as the
case may be, would have been permitted on the date of the creation of such
Lien;
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(w) Liens solely on assets and securing Indebtedness of Restricted
Subsidiaries that are notLoan Parties permitted to be incurred pursuant to
Section 7.2 in an amount not to exceed the
Non-Guarantor
Limit;
(x) Liens on any Receivables Related Assets (i) granted to the provider of any
Permitted A/R Finance Transaction or (ii) that ariseor may be deemed to arise
pursuant to any Permitted Supply Chain Financing;
(y) Liens not otherwise permitted by this Section so long asneither (i) the
aggregate outstanding principal amount of the obligations secured thereby nor
(ii) the aggregate fair market value (determined as of the date such Lien is
incurred) of the assets subject thereto exceeds (as to all GroupMembers) the
greater of (i) $100,000,000 or 7.5% of Consolidated Net Tangible Assets (as of
the date incurred);
(z) Liens on Farm CreditEquities (as defined in the Existing
Non-ABL
Credit Agreement as in effect on the Fifth Amendment Effective Date) as
permitted under Section 7.2(aa) of the Existing
Non-ABL
Credit Agreement as in effect on the Fifth Amendment Effective Date;
(aa) Liens onproperty purportedly rented to, or leased by, the Borrower or any
of its Restricted Subsidiaries pursuant to a sale and leaseback transaction
permitted under Section 7.10;
provided
that (i) such Liens do not encumber any otherproperty of the Borrower or its
Restricted Subsidiaries and (ii) such Liens secure only Indebtedness permitted
under Section 7.2(x);
(bb) Liens on cash to secure commodity Swap Obligations in an amount not to
exceed $25,000,000 in the aggregate at any one time outstanding;and
(cc) Liens arising in connection with any Tax Incentive Transaction; provided
that such Liens are subordinated to the Liens of theAdministrative Agent on
the Collateral securing the Obligations on terms reasonably acceptable to the
Administrative Agent.
For purposes of determiningcompliance with this Section 7.3, in the event that
a Lien securing an item of Indebtedness (or any portion thereof) meets the
criteria for more than one of the categories of Liens described in clauses (a)
through (bb) above, the Borrowermay, in its sole discretion, divide or
classify or later divide, classify or reclassify all or a portion of such Lien
in a manner that complies with this Section 7.3 and will only be required to
include the amount and type of such Lien in oneor more of the above clauses;
provided
that all Liens securing Indebtedness outstanding under the Loan Documents and
the ABL Credit Agreement, and, in each case, any Permitted Refinancing
Indebtedness thereof, will at all times be deemed tobe outstanding in reliance
only on the exception in Section 7.3(h). Notwithstanding anything to the
contrary in this Section 7.3, the Borrower shall not, and shall not permit any
of its Restricted Subsidiaries to, directly or indirectlycreate, incur, assume
or suffer to exist any Lien securing Indebtedness for borrowed money
(excluding, for the avoidance of doubt, Liens permitted pursuant to Sections
7.3(g) and 7.3(aa), or any other Lien permitted under this Section 7.3securing
Indebtedness constituting Capital Lease Obligations or Attributable
Indebtedness that is permitted to be incurred under Section 7.2) upon any of
fee-owned
or leased real property, whether nowowned or hereafter acquired other than any
Lien securing Permitted
Non-ABL
Loans.
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7.4
Fundamental Changes
. Enter into any merger, consolidation or amalgamation, orliquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or Dispose of
all or substantially all of its property or business, except that:
(a) any Restricted Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (
provided
that the Borrower shallbe the continuing or surviving corporation) or with or
into any other Restricted Subsidiary (
provided
, that when any Subsidiary Guarantor is merging with or into another
Restricted Subsidiary, such Subsidiary Guarantor shall be the continuingor
surviving corporation or the continuing or surviving corporation shall,
substantially simultaneously with such merger or consolidation, become a
Subsidiary Guarantor);
(b) any Restricted Subsidiary may merge, consolidate or amalgamate with any
other Person (other than the Borrower) in order to effect anInvestment
permitted pursuant to Section 7.7;
provided
that if such Restricted Subsidiary is a Subsidiary Guarantor the continuing or
surviving Person shall be a Subsidiary Guarantor;
(c) any Restricted Subsidiary of the Borrower may Dispose of any or all of its
assets (i) to the Borrower or any Subsidiary Guarantor(upon voluntary
liquidation or otherwise) or (ii) pursuant to a Disposition permitted by
Section 7.5; and
(d) any RestrictedSubsidiary of the Borrower that is not a Subsidiary
Guarantor may (i) dispose of any or all or substantially all of its assets to
any Group Member (upon voluntary liquidation or otherwise) or (ii) liquidate
or dissolve if the Borrowerdetermines in good faith that such liquidation or
dissolution is in the best interest of the Borrower and is not materially
disadvantageous to the Administrative Agent or the Lenders.
7.5
Disposition of Property
. Dispose of any of its property, whether now owned or hereafter acquired, or,
in the case of any RestrictedSubsidiary, issue or sell any shares of such
Restricted Subsidiary's Capital Stock to any Person, except:
(a) the Disposition ofsurplus, outdated, obsolete or worn out, or no longer
used or useable property (other than accounts receivable or inventory) in the
ordinary course of business;
(b) Dispositions of inventory, cash and Cash Equivalents in the ordinary
course of business;
(c) Dispositions permitted by Section 7.4(c)(i) or Section 7.4(d)(i);
(d) the sale or issuance of any Restricted Subsidiary's Capital Stock to the
Borrower or any Subsidiary Guarantor;
(e) Dispositions of accounts receivable in connection with the compromise,
settlement or collection thereof in the ordinary course of businessconsistent
with past practice and not as part of any accounts receivables financing
transaction;
(f) Dispositions of assets other thanAccounts or Inventory included in the
Borrowing Base (including as a result of like-kind exchanges) to the extent
that (i) such assets are exchanged for credit (on a fair market value basis)
against the purchase price of similar or replacementassets or (ii) such asset
is Disposed of for fair market value and the proceeds of such Disposition are
promptly applied to the purchase price of similar or replacement assets;
(g) Dispositions resulting from any casualty or other insured damage to, or
any taking under power of eminent domain or by condemnation orsimilar
proceeding of, any asset of any Group Member;
(h)
non-exclusive
licenses or sublicensesof intellectual property in the ordinary course of
business, to the extent that they do not materially interfere with the
business of the Borrower or any Restricted Subsidiary;
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(i) the lapse, abandonment, cancellation,
non-renewal
or discontinuance of use or maintenance of
non-material
intellectual property or rights relating thereto that the Borrower determines
in its reasonablejudgment to be desirable to the conduct of its business and
not materially disadvantageous to the interests of the Lenders;
(j) licenses,leases or subleases entered into in the ordinary course of
business, to the extent that they do not materially interfere with the
business of the Borrower or any Restricted Subsidiary;
(k) Dispositions to any Group Member;
provided
that any such Disposition involving a Restricted Subsidiary that is not a
SubsidiaryGuarantor shall be made in compliance with Sections 7.7 and 7.9;
(l) (i) Dispositions of assets to the extent that such Dispositionconstitutes
an Investment referred to in and permitted by Section 7.7, (ii) Dispositions
of assets to the extent that such Disposition constitute a Restricted Payment
referred to in and permitted by Section 7.6 (iii) Dispositions set forthon
Schedule 7.5(l) and (iv) sale and leaseback transactions permitted under
Section 7.10;
(m) Dispositions of ReceivablesRelated Assets in Permitted A/R Finance
Transactions;
(n) other Dispositions of (i) assets not included in the Borrowing
Base(including Capital Stock) and/or (ii) Inventory (x) in an unlimited amount
if the Payment Conditions are satisfied or (y) if the Payment Conditions are
not satisfied, in an aggregate amount not to exceed $30,000,000;
provided
that(A) in each case, such Disposition shall be for fair market value (
provided
that with respect to any Disposition of Eligible Inventory fair market value
shall be in no event less than the value ascribed to such assets in the most
recentBorrowing Base Certificate delivered to the Administrative Agent
pursuant to Section 6.2(g)), (B) at least 75% of the total consideration for
any such Disposition in excess of the greater of (x) $30,000,000 and (y) 2.5%
of Consolidated NetTangible Assets received by the Borrower and its Restricted
Subsidiaries shall be in the form of cash or Cash Equivalents and Designated
Non-Cash
Consideration, (C) no Event of Default then exists orwould result from such
Disposition (except if such Disposition is made pursuant to an agreement
entered into at a time when no Event of Default exists), (D) the Borrower
shall have delivered to the Administrative Agent a pro forma Borrowing
BaseCertificate, modified to give effect to such Dispositions so that the
Administrative Agent may determine whether any prepayment is necessary to
comply with Section 2.11(a) and (E) the requirements of Section 2.11(b), to
the extentapplicable, are complied with in connection therewith;
(o) (i) Dispositions of operating segments, business units, divisions, linesof
business, or the assets or Capital Stock of any Subsidiary of the Borrower
which individually may comprise an operating segment, business unit, division
or line of business, and with respect to which the Board of Directors of the
Borrower hasdetermined are no longer strategic or core to the Borrower's
business (taken as a whole), in an aggregate sales price for each such
Disposition or related series of Dispositions not to exceed $75,000,000
(exclusive of any earnoutconsideration payable in connection therewith);
provided that no more than two (2) such Dispositions or series of related
Dispositions may be consummated prior to the Revolving Termination Date or
(ii) any Specified Disposition so long as(A) the prepayment requirements of
Section 2.11(c) are complied with in connection therewith; (B) if the Total
Revolving Extensions of Credit immediately after giving effect to the
consummation of such Disposition and any suchprepayment (to the extent and in
the manner required by Section 2.11(c)) would be greater than or equal to
$75,000,000, the Consolidated Fixed Charge Coverage Ratio, calculated on a Pro
Forma Basis for the
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Applicable Reference Period, shall be greater than 1.10:1.00 (and the
Administrative Agent shall have received a certificate of a Responsible
Officer setting forth, in reasonable detail, thecalculation of the
Consolidated Fixed Charge Coverage Ratio on a Pro Forma Basis giving effect to
such Specified Disposition and demonstrating satisfaction of the foregoing);
(C) the Borrower shall have delivered to the Administrative Agent a proforma
Borrowing Base Certificate, modified to give effect to such Disposition; (D)
such Disposition shall be for fair market value; (E) at least 75% of the total
consideration for any such Disposition in excess of $20,000,000 received bythe
Borrower and its Restricted Subsidiaries shall be in the form of cash or Cash
Equivalents and Designated
Non-Cash
Consideration; and (F) no Event of Default then exists or would result from
suchDisposition (except if such Disposition is made pursuant to an agreement
entered into at a time when no Event of Default exists);
(p) thesurrender or waiver of contract rights in the ordinary course of
business or the surrender or waiver of litigation claims or the settlement,
release or surrender of tort or litigation claims of any kind;
(q) the transfer of improvements or alterations in connection with any lease
of property upon the termination thereof;
(r) any Restricted Payment permitted by Section 7.6 or Investment permitted by
Section 7.7;
(s) the termination of a lease of real or personal property; and
(t) Dispositions arising in connection with any Tax Incentive Transaction.
Notwithstanding anything to the contrary contained in this Section 7.5, in no
event shall any Disposition of assets included in theBorrowing Base and
contributing more than 20% of the Borrowing Base (other than Dispositions
permitted pursuant to Section 7.5(b)) be permitted unless the Administrative
Agent receives a completed Borrowing Base Certificate concurrently withsuch
Disposition.
For purposes of clause (B) of Section 7.5(n) and clause (E) of Section
7.5(o)(ii), the followingshall be deemed to be cash: (I) any liabilities
(other than liabilities that are by their terms subordinated to the
Obligations) of the Borrower or any Restricted Subsidiary (as shown on such
Person's most recent balance sheet (or in thenotes thereto), or if the
incurrence of such liability took place after the date of such balance sheet,
that would have been shown on such balance sheet or in the notes thereto, as
determined in good faith by the Borrower) that are (i) assumedby the
transferee of any such assets and for which the Borrower and/or its Restricted
Subsidiaries have been validly released by all relevant creditors in writing
or (ii) otherwise cancelled or terminated in connection with such
Disposition,(II) any securities received by the Borrower or such Restricted
Subsidiary from such transferee that are converted by the Borrower or such
Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash
or Cash Equivalentsreceived in the conversion) within 180 days following the
closing of the applicable Disposition and (III) any Designated
Non-Cash
Consideration received by the Borrower or any of its RestrictedSubsidiaries in
such Disposition having an aggregate fair market value, taken together with
all other Designated
Non-Cash
Consideration received pursuant to Section 7.5(n) or Section 7.5(o)(ii) thatis
at that time outstanding, not to exceed the greater of (1) $60,000,000 and (2)
4% of Consolidated Net Tangible Assets (as of the date of such disposition),
(or, at the Borrower's election, as of the date of entry into a binding
agreementwith respect to such Disposition) (with the fair market value of each
item of Designated
Non-Cash
Consideration being measured at the time received and without giving effect to
subsequent changes in value).
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7.6
Restricted Payments
. Declare or pay any dividend (other than dividends payablesolely in common
stock of the Person making such dividend) on, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any
CapitalStock of any Group Member, whether now or hereafter outstanding, or
make any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of any Group Member
(collectively, "
RestrictedPayments
"), except that:
(a) any Restricted Subsidiary may make Restricted Payments ratably to its
equity holders (or if notratably, on a basis more favorable to the Borrower
and the other Loan Parties);
(b) so long as no Event of Default shall have occurredand be continuing, the
Borrower may purchase its common stock or common stock options from present or
former officers or employees of any Group Member upon the death, disability or
termination of employment of such officer or employee,
provided
, that the aggregate amount of payments under this Section 7.6(b) after the
Closing Date (net of any proceeds received by the Borrower after the Closing
Date in connection with resales of any common stock or common stock optionsso
purchased) shall not exceed $5,000,000;
(c) the Borrower may declare and pay dividends with respect to its Capital
Stock payablesolely in shares of Qualified Capital Stock;
(d) the Borrower may make cash payments in lieu of the issuance of fractional
sharesrepresenting insignificant interests in the Borrower in connection with
the exercise of warrants, options or other securities convertible into or
exchangeable for Capital Stock in the Borrower;
(e) the Borrower may acquire its Capital Stock upon the exercise of stock
options for such Capital Stock of the Borrower if such Capital Stockrepresents
a portion of the exercise price of such stock options or in connection with
tax withholding obligations arising in connection with the exercise of options
by, or the vesting of restricted Capital Stock or similar equity awards held
by,any current or former director, officer or employee of any Group Member;
(f) the Borrower may convert or exchange any of its CapitalStock for or into
Qualified Capital Stock;
(g) so long as the Payment Conditions are met, the Borrower may make
Restricted Payments; and
(h) so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, the Borrower may on anydate make
additional Restricted Payments in an aggregate amount not to exceed from and
after the Closing Date the greater of (i) $25,000,000 and (ii) 2% of
Consolidated Net Tangible Assets.
7.7
Investments
. Make any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchaseany Capital Stock, bonds,
notes, debentures or other debt securities of, or any assets constituting a
business unit of, or make any other investment in, any other Person (all of
the foregoing, "
Investments
"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in cash and Cash Equivalents;
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(c) Guarantee Obligations of any Group Member in respect of Indebtedness or
otherobligations of the Borrower or any Restricted Subsidiary (including any
such Guarantee Obligations arising as a result of any such Person being a
joint and several
co-applicant
with respect to any letter ofcredit or letter of guaranty);
provided
that (i) (A) a Restricted Subsidiary that is not a Subsidiary Guarantor shall
not Guarantee any Indebtedness for borrowed money of any Loan Party and (B)
any Guarantee Obligations in respectof Subordinated Indebtedness shall be
subordinated to the Obligations on terms no less favorable to the Lenders than
those of the Subordinated Indebtedness and (ii) no Guarantee Obligations of
any Loan Party of Indebtedness (excluding, for theavoidance of doubt,
Guarantee Obligations in respect of obligations not constituting Indebtedness)
of any Restricted Subsidiary that is not a Loan Party shall be permitted
pursuant to this
Section
7.7(c)
if, at the time ofthe incurrence of, and after giving effect to, such
Guarantee Obligations (and any substantially simultaneous use of the Permitted
Amount), the Permitted Amount would be less than zero;
(d) loans and advances to directors, officers and employees of any Group
Member in the ordinary course of business (including for travel,entertainment
and relocation expenses) in an aggregate amount for the Borrower and its
Restricted Subsidiaries not to exceed $5,000,000 at any one time outstanding;
(e) loans or advances made by the Borrower or any Restricted Subsidiary to any
Restricted Subsidiary;
provided
that no loan or advancemade by any Loan Party to a Restricted Subsidiary that
is not a Loan Party shall be permitted pursuant to this
Section
7.7(e)
if, at the time of, and after giving effect to, the making of such loan or
advance (and anysubstantially simultaneous use of the Permitted Amount) and
the use of proceeds thereof, the Permitted Amount would be less than zero;
(f) Investments in assets useful in the business of the Borrower and its
Restricted Subsidiaries, other than current assets, made by any GroupMember
with the proceeds of any Disposition of ABL Priority Collateral;
(g) (i) Investments by the Borrower in any Subsidiary Guarantorand by any
Subsidiary Guarantor in any Loan Party, and (ii) Investments (including by way
of capital contributions) by any Group Member in Equity Interests in their
Restricted Subsidiaries;
provided
, in the case of clause (ii), noInvestment by any Loan Party in any Restricted
Subsidiary that is not a Loan Party shall be permitted pursuant to this
Section
7.7(g)
if, at the time of the making of, and after giving effect to, such Investment
(and anysubstantially simultaneous use of the Permitted Amount), the Permitted
Amount would be less than zero;
(h) any Permitted Acquisition;
provided
that the Payment Conditions are met;
(i) promissory notes and other
non-cash
consideration received in connection with Dispositions permitted by Section 7.5;
(j) Investments acquired as a result of thepurchase or other acquisition by
any Group Member in connection with a Permitted Acquisition;
provided
, that such Investments were not made in contemplation of such Permitted
Acquisition and were in existence at the time of such PermittedAcquisition;
(k) Investments existing on the Closing Date and set forth on Schedule 7.7(k)
and any modification, refinancing, renewal,refunding, replacement or extension
thereof;
provided
that the amount of any Investment permitted pursuant to this Section 7.7(k) is
not increased from the amount of such Investment on the Closing Date;
(l) Investments received in connection with the bankruptcy or reorganization
of, or settlement of delinquent accounts and disputes with,customers and
suppliers, in each case in the ordinary course of business;
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(m) Investments of a Restricted Subsidiary acquired after the Closing Date or
of acorporation merged into the Borrower or merged or consolidated with any
Restricted Subsidiary, in each case in accordance with Section 7.4 after the
Closing Date, to the extent that such Investments were not made in
contemplation of or inconnection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or
consolidation;
(n) guarantees by the Borrower or any Restricted Subsidiary of leases (other
than Capital Lease Obligations) or of other obligations that donot constitute
Indebtedness, in each case entered into in the ordinary course of business;
(o) Investments made to effect the pledges anddeposits described in, and
permitted under, Section 7.3(c) and (d);
(p) Investments by the Borrower or any Restricted Subsidiarythat result solely
from the receipt by the Borrower or such Restricted Subsidiary from any of its
Subsidiaries of a dividend or other Restricted Payment in the form of Capital
Stock, evidences of Indebtedness or other securities (but not anyadditions
thereto made after the date of the receipt thereto);
(q) mergers and consolidations permitted under Section 7.4 that donot involve
any Person other than the Borrower and Restricted Subsidiaries that are Wholly
Owned Subsidiaries;
(r) [reserved];
(s) [reserved];
(t) inaddition to Investments otherwise expressly permitted by this Section,
Investments by the Borrower or any of its Restricted Subsidiaries so long as
the Payment Conditions are met;
(u) (i) any Investment in any Joint Venture or Unrestricted Subsidiary and
(ii) any Permitted Acquisition of Persons that do not, uponacquisition
thereof, become Subsidiary Guarantors, and property that is not, upon
acquisition thereof, owned by Loan Parties;
provided
that no Investment or Permitted Acquisition shall be permitted pursuant to this
Section
7.7(u)
if, at the time of, and after giving effect to, the making of such loan or
advance (and any substantially simultaneous use of the Permitted Amount) and
the use of proceeds thereof, the Permitted Amount wouldbe less than zero;
(v) Investments constituting the extension of credit made to any purchaser of
Receivables Related Assets in connectionwith any Permitted A/R Finance
Transaction relating to the balance of the purchase price payable therefor by
such purchaser; and
(w)Investments by the Borrower in Farm Credit Lenders in connection with the
Borrower's obligation to acquire Farm Credit Equities (as defined in the
Existing
Non-ABL
Credit Agreement as in effect on theFifth Amendment Effective Date) under
Section 6.11 of the Existing
Non-ABL
Credit Agreement as in effect on the Fifth Amendment Effective Date.
7.8
Optional Payments of Certain Debt Instruments
. Make or offer to make any optional or voluntary payment, prepayment,
repurchase orredemption of or otherwise optionally or voluntarily defease or
segregate funds with respect to any Junior Indebtedness or Permitted
Non-ABL
Loans (or voluntarily reduce commitments in respect of the TermRevolver
Facility or any Permitted
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Refinancing Indebtedness in respect thereof to the extent the same takes the
form of a revolving credit facility, in each case, to the extent it would
cause a mandatory prepayment in respect ofsuch facility) (any of the
foregoing, a "
Restricted Debt Payment
") other than:
(a) refinancings of Junior Indebtednessor Permitted
Non-ABL
Loans with the proceeds of Permitted Refinancing Indebtedness permitted in
respect thereof under Section 7.2;
(b) payments of or in respect of Junior Indebtedness made solely with proceeds
of Qualified Capital Stock or the conversion of any JuniorIndebtedness into
Qualified Capital Stock;
(c) prepayments of Junior Indebtedness;
provided
that no prepayment of any suchIndebtedness shall be permitted unless the
Payment Conditions are met; and
(d) other prepayments of Permitted
Non-ABL
Loans (including, for the avoidance of doubt, the
Non-ABL
Facilities) so long as (A) the Payment Conditions are met or (B) such
Restricted Debt Payment ismade using the Net Cash Proceeds of any Disposition
of Term Loan Priority Collateral.
Notwithstanding anything to the contrary containedin this Section 7.8, in no
event shall any payment in respect of Subordinated Indebtedness be permitted
if such payment is in violation of the subordination provisions of such
Subordinated Indebtedness.
7.9
Transactions with Affiliates
. Enter into any transaction, including any purchase, sale, lease or exchange
of property, therendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than (x) transactions
between or among the Loan Parties and (y) transactions between or among the
Borrower and its RestrictedSubsidiaries consistent with past practices and
made in the ordinary course of business) unless such transaction is (a)
otherwise permitted under this Agreement and (b) upon fair and reasonable
terms no less favorable to the relevant GroupMember than it would obtain in a
comparable arm's length transaction with a Person that is not an Affiliate as
determined in good faith by the board of directors of the Borrower; provided
that the foregoing restriction in clause (b) shallnot apply to (i)
transactions permitted under Section 7.6; (ii) the payment of customary
directors' fees and indemnification and reimbursement of expenses to
directors, officers or employees; (iii) any issuance of securities orother
payments, awards or grants in cash, securities or otherwise pursuant to, or
the funding of, employment agreements, stock options and stock ownership plans
approved by the Borrower's Board of Directors; (iv) employment, retention,severa
nce and similar arrangements (including equity or equity based incentive
plans, stock ownership plans, compensation or incentive plans and arrangements
and employee benefit plans and arrangements) and indemnification arrangements
entered intoin the ordinary course of business between the Borrower or any
Restricted Subsidiary and any employee, officer or director thereof; (v)
intercompany transactions undertaken in good faith (as certified by a
Responsible Officer) for the purposeof improving the consolidated tax
efficiency of the Group Members, (vi) Investments permitted by Section 7.7(d),
(vii) payment of customary fees and reasonable out of pocket costs to, and
indemnities for the benefit of, directors, officersand employees of the
Borrower and its Subsidiaries in the ordinary course of business to the extent
attributable to the ownership or operation of the Borrower and its
Subsidiaries, and (viii) transactions disclosed in the Borrower's SECfilings
made prior to the Closing Date.
7.10
Sales and Leasebacks
. Except in connection with any Tax Incentive Transaction, enterinto any
arrangement with any Person providing for the leasing by any Group Member of
real or personal property that has been or is to be sold or transferred by
such Group Member to such Person or to any other Person to whom funds have
been or areto be advanced by such Person on the security of such property or
rental obligations of such Group Member, unless (a) the Disposition of the
property subject to such transaction is permitted by Section 7.5 and the
Borrower or theapplicable Restricted Subsidiary would
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be entitled to incur Liens with respect to such transaction pursuant to
Section 7.3 and Indebtedness in an amount equal to the Attributable
Indebtedness with respect to such transactionpursuant to Section 7.2 and (b)
the Net Cash Proceeds received by the applicable Group Member in connection
with such transaction are at least equal to the fair market value (as
determined by the board of directors of the Borrower or amember of the senior
management of the Borrower) of such property;
provided
that the aggregate amount of consideration paid to the Group Members (and the
aggregate principal amount of any Attributable Indebtedness) in respect of
transactionspermitted under this Section 7.10 shall not exceed the greater of
(i)$75,000,000 and (ii) 5% of Consolidated Net Tangible Assets (as of the date
of consummation of such arrangement).
7.11
Swap Agreements
. Enter into any Swap Agreement, except (a) Swap Agreements entered into to
hedge or mitigate risks to whichany Group Member has actual exposure (other
than those in respect of Capital Stock), (b) Swap Agreements entered into in
order to effectively cap, collar or exchange interest rates (from fixed to
floating rates, from one floating rate to anotherfloating rate or otherwise)
with respect to any interest-bearing liability or investment of any Group
Member and (c) Swap Agreements in existence as of the Closing Date and
reflected in the Borrower's filings with the SEC.
7.12
Changes in Fiscal Periods
. Change Borrower's fiscal year end or change the Borrower's method of
determining fiscalquarters (without the consent of the Administrative Agent)
except as permitted by GAAP and recommended by Borrower's auditors or required
by GAAP.
7.13
Negative Pledge Clauses
. Enter into or suffer to exist or become effective any agreement that
prohibits or limits the ability ofany Group Member to create, incur, assume or
suffer to exist any Lien upon any of its property or revenues, whether now
owned or hereafter acquired to secure its obligations under the Loan Documents
to which it is a party other than (a) (i)this Agreement, the other Loan
Documents, the Permitted Notes and the Permitted
Non-ABL
Loan Documents, (ii) agreements related to other Indebtedness permitted by
this Agreement to the extent thatencumbrances or restrictions imposed by such
other Indebtedness are not more restrictive on the Loan Party or any of its
applicable Subsidiaries than the encumbrances and restrictions contained in
this Agreement as determined by the chief executiveofficer or the chief
financial officer of the Borrower in good faith and (iii) any agreement
governing any Permitted Refinancing Indebtedness in respect of the Loans, the
Permitted Notes or the Permitted
Non-ABL
Loans, in each case, with respect to this clause (iii), so long as any such
agreement is not more restrictive than the Loan Documents, the Permitted
Non-ABL
LoanDocuments or the documents governing the Indebtedness being refinanced, as
applicable, (b) any agreements governing any purchase money Liens,
Attributable Indebtedness or Capital Lease Obligations otherwise permitted
hereby (in which case, anyprohibition or limitation shall only be effective
against the assets financed thereby), (c) any agreement in effect at the time
any Subsidiary becomes a Restricted Subsidiary of the Borrower, so long as
such prohibition or limitation applies only tosuch Restricted Subsidiary (and,
if applicable, its Subsidiaries) and such agreement was not entered into in
contemplation of such Person becoming a Restricted Subsidiary of the Borrower,
as such agreement may be amended, restated, supplemented,modified extended
renewed or replaced, so long as such amendment, restatement, supplement,
modification, extension, renewal or replacement does not expand in any
material respect the scope of any restriction contemplated by this Section
7.13contained therein, (d) customary provisions restricting assignments,
subletting, sublicensing, pledging or other transfers contained in leases,
subleases, licenses or sublicenses, so long as such restrictions are limited
to the property orassets subject to such leases, subleases, licenses or
sublicenses, as the case may be, (e) customary restrictions and conditions
contained in agreements relating to the sale of a Restricted Subsidiary or any
assets pending such sale; providedthat such restrictions or conditions apply
only to the Restricted Subsidiary or assets that is to be sold and such sale
is permitted hereunder, (f) restrictions imposed by applicable law or
regulation or license requirements; (g) customaryprovisions restricting
assignment of any agreement, which provisions are entered into in the ordinary
course of business; (h) any customary restriction pursuant to any document,
agreement or instrument governing or
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relating to any Lien permitted under Section 7.3 and (i) customary provisions
contained in joint venture agreements, shareholder agreements and other
similar agreements applicable tojoint ventures permitted hereunder and
applicable solely to such joint venture (and its assets or Capital Stock
issued by such Person) entered into in the ordinary course of business.
7.14
Clauses Restricting Subsidiary Distributions
. Enter into or suffer to exist or become effective any consensual encumbrance
orrestriction on the ability of any Restricted Subsidiary of the Borrower to
(a) make Restricted Payments in respect of any Capital Stock of such
Restricted Subsidiary held by, or pay any Indebtedness owed to, any Group
Member, (b) makeloans or advances to, or other Investments in, any Group
Member or (c) transfer any of its assets to any Group Member, except for (i)
any encumbrances or restrictions existing under (A) this Agreement, the other
Loan Documents, thePermitted Notes and the Permitted
Non-ABL
Loan Documents, (B) any agreement governing Indebtedness incurred pursuant to
Section 7.2 so long as such encumbrance or restriction is customary
inagreements governing Indebtedness of such type and is no more restrictive
than the Loan Documents or (C) any agreement governing Permitted Refinancing
Indebtedness in respect of the Loans, any Permitted
Non-ABL
Loan or any other Indebtedness incurred pursuant to Section 7.2, in each case
so long as any such agreement is not more restrictive than the Loan Documents,
the Permitted
Non-ABL
Loan Documents or the documents governing the Indebtedness being refinanced,
as applicable, (ii) any encumbrances or restrictions with respect to a
Restricted Subsidiary imposed pursuant to an agreementthat has been entered
into in connection with the Disposition of all or substantially all of the
Capital Stock or assets of such Restricted Subsidiary, (iii) any encumbrance
or restriction applicable to a Restricted Subsidiary (and, ifapplicable, its
Subsidiaries) under any agreement of such Restricted Subsidiary in effect at
the time such Person becomes a Restricted Subsidiary of the Borrower, so long
as such agreement was not entered into in contemplation of such Personbecoming
a Restricted Subsidiary of the Borrower, as such agreement may be amended,
restated, supplemented, modified extended renewed or replaced, so long as such
amendment, restatement, supplement, modification, extension, renewal or
replacementdoes not expand in any material respect the scope of any
restriction contemplated by this Section 7.14 contained therein, (iv)
customary provisions restricting assignments, subletting, sublicensing,
pledging or other transfers contained inleases, subleases, licenses or
sublicenses, so long as such restrictions are limited to the property or
assets subject to such leases, subleases, licenses or sublicenses, as the case
may be, (v) customary restrictions and conditions containedin agreements
relating to the sale of a Restricted Subsidiary or any assets pending such
sale, provided that such restrictions or conditions apply only to the
Restricted Subsidiary or assets that is to be sold and such sale is permitted
hereunder,(vi) restrictions of the nature referred to in clause (c) above
under the agreements governing purchase money liens, Attributable Indebtedness
or Capital Lease Obligations otherwise permitted hereby, which restrictions
are only effectiveagainst the assets financed thereby, (vii) any applicable
law, rule or regulation (including applicable currency control laws and
applicable state corporate statutes restricting the payment of dividends in
certain circumstances), (viii)agreements related to other Indebtedness
permitted by this Agreement to the extent that encumbrances or restrictions
imposed by such other Indebtedness (x) are (A) customary for financing
arrangements of their type or (B) not, when takenas a whole, materially more
restrictive on the Loan Party or any of its applicable Subsidiaries than the
restrictions contained in this Agreement as determined by the chief executive
officer or the chief financial officer of the Borrower in goodfaith and (y)
will not materially affect the Loan Parties' ability to satisfy their
obligations hereunder or under the other Loan Documents, or (ix) customary
provisions contained in joint venture agreements, shareholder agreementsand
other similar agreements applicable to joint ventures permitted hereunder and
applicable solely to such joint venture (and its assets or Capital Stock
issued by such Person) entered into in the ordinary course of business.
7.15
Lines of Business
. Enter into any business, either directly or through any Restricted
Subsidiary, except for those businesses inwhich the Group Members were engaged
on the Closing Date or that are reasonably related, ancillary or complementary
thereto.
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7.16
Use of Proceeds
. Request any Loan or Letter of Credit, and the Borrower shallnot use, and
shall procure that its Restricted Subsidiaries and its or their respective
directors, officers, employees and agents shall not use, the proceeds of any
Loan or Letter of Credit (a) in furtherance of an offer, payment, promise
topay, or authorization of the payment or giving of money, or anything else of
value, to any Person in violation of any Anti-Corruption Laws, (b) for the
purpose of funding, financing or facilitating any activities, business or
transaction of orwith any Sanctioned Person, or in any Sanctioned Country, to
the extent that such activities, businesses or transaction would be prohibited
by Sanctions if conducted by a corporation incorporated in the United States
or a European Union member stateor (c) in any manner that would result in the
violation of any Sanctions applicable to any party hereto.
7.17
Restrictions onAmendments to
Non-ABL
Facilities
. If the Borrower amends any of the
Non-ABL
Facilities or any Permitted Refinancing Indebtedness in respect thereof
(otherthan one or more broadly syndicated "term loan B" facilities) (a) to add
any scheduled amortization or mandatory prepayment provisions not included in
the Existing
Non-ABL
Credit Agreement as ineffect on the Fifth Amendment Effective Date (excluding,
for the avoidance of doubt, any customary provisions governing the
continuation of loans for a given interest period or the conversion of loans
from bearing interest based on a given rate toloans bearing interest based on
a different rate) or (b) to cause the final maturity date of (x) the Term
Revolver Facility, (y) the Farm Credit Term Loan Facility, (y) the Commercial
Bank Term Loan Facility or (z) anyPermitted Refinancing Indebtedness in
respect thereof, to be sooner than the final maturity date in respect of such
Non-ABL
Facility as in effect on the Fifth Amendment Effective Date, then such
scheduledamortization payments, mandatory prepayments or payments at such
earlier final maturity date may be made only to the extent that the Payment
Conditions are met. In addition, the Borrower will not, and will not permit
any other Group Member to amend,modify, waive or otherwise change, consent or
agree to any amendment, modification, waiver or other change to the Permitted
Non-ABL
Loans if doing so would not be permitted under the terms of the IntercreditorAgr
eement.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or theBorrower shall
fail to pay any interest on any Loan or Reimbursement Obligation, or any other
amount payable hereunder or under any other Loan Document, within five days
after any such interest or other amount becomes due in accordance with
theterms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party
herein or in any other Loan Document or that iscontained in any certificate,
document or financial or other statement furnished by it at any time under or
in connection with this Agreement or any such other Loan Document shall prove
to have been inaccurate in any material respect on or as of thedate made or
deemed made; or
(c) any Loan Party shall default in the observance or performance of any
agreement contained in clause(i) or (ii) of Section 6.4(a) (with respect to
the Borrower only), Section 6.7(a) or Section 7 of this Agreement or Section
5.13 of the Guarantee and Collateral Agreement; or
(d) any Loan Party shall default in the observance or performance of any
agreement in Section 6.2(g) and such default shall continueunremedied for a
period of 5 days after notice to the Borrower from the Administrative Agent;
(e) any Loan Party shall default in theobservance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than
as provided in paragraphs (a) through (c) of this Section), and such default
shall continue unremedied for a period of 30 daysafter notice to the Borrower
from the Administrative Agent or the Required Lenders; or
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(f) any Group Member shall (i) default in making any payment of any principal
of anyMaterial Indebtedness (including any Guarantee Obligation, but excluding
the Loans) on the scheduled or original due date with respect thereto; or (ii)
default in making any payment of any interest on any such Material
Indebtedness beyond theperiod of grace, if any, provided in the instrument or
agreement under which such Material Indebtedness was created; or (iii) default
in the observance or performance of any other agreement or condition relating
to any such MaterialIndebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder orbeneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause, with the
giving of notice and/or lapse of time if required, such Material Indebtedness
to become due prior to its stated maturity or (in thecase of any such
Indebtedness constituting a Guarantee Obligation) to become payable; or
(g) (i) any Group Member shall commence anycase, proceeding or other action
(A) under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect toit, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment,
winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts,or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets; or (ii) there shall be commenced against any Group Member
any case, proceeding orother action of a nature referred to in clause (i)
above that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed or undischarged for a
period of 60 days; or(iii) there shall be commenced against any Group Member
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets that results inthe entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) any Group Member
shall take any action in furtherance of, or indicatingits consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) any Group Member shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its debtsas they become
due; or (vi) or any Group Member shall make a general assignment for the
benefit of its creditors; or
(h) (i) anERISA Event and/or a Foreign Plan Event shall have occurred; (ii) a
trustee shall be appointed by a United States district court to administer any
Pension Plan; (iii) the PBGC shall institute proceedings to terminate any
Pension Plan;(iv) any Group Member or any of their respective ERISA Affiliates
shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred or will be assessed Withdrawal Liability to such Multiemployer Plan
and such entity does nothave reasonable grounds for contesting such Withdrawal
Liability or is not contesting such Withdrawal Liability in a timely and
appropriate manner; or (v) any other event or condition shall occur or exist
with respect to a Plan, a ForeignBenefit Arrangement, or a Foreign Plan; and
in each case in clauses (i) through (v) above, such event or condition,
together with all other such events or conditions, if any, would reasonably be
expected to result in a Material Adverse Effect;or
(i) one or more judgments or decrees shall be entered against any Group Member
involving in the aggregate a liability (not paid orfully covered by insurance
as to which the relevant insurance company has not disputed coverage) of
$75,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, satisfied, stayed or bonded, as applicable, pendingappeal
within 30 days from the entry thereof; or
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(j) any of the Security Documents or Intercreditor Agreements shall cease, for
any reason,to be in full force and effect (other than pursuant to the terms
hereof or such Intercreditor Agreement, respectively), or any Loan Party or
any Affiliate of any Loan Party shall so assert, or any Lien created by any of
the Security Documents shallcease to be enforceable and of the same effect and
priority purported to be created thereby (and, for the avoidance of doubt, as
required by such Intercreditor Agreement), except to the extent that such
cessation results from the failure of theAdministrative Agent to maintain
possession of certificates representing securities pledged or to file
continuation statements under the Uniform Commercial Code of any applicable
jurisdiction; or
(k) the guarantee contained in Article II of the Guarantee and Collateral
Agreement shall cease, for any reason, to be in full force andeffect or any
Loan Party shall so assert; or
(l) the subordination provisions contained in any Subordinated Indebtedness
with anaggregate principal amount in excess of $30,000,000 shall cease, for
any reason, to be in full force and effect, or any Loan Party or any
Subsidiary of any Loan Party shall so assert; or
(m) a Change of Control shall occur;
then, andin any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (g) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans (with
accruedinterest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including all amounts of L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documentsrequired thereunder) shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of the Required
Lenders, the AdministrativeAgent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with theconsent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans (with
accrued interest thereon) and all other amounts owingunder this Agreement and
the other Loan Documents (including all amounts of L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) to be due and payableforthwith,
whereupon the same shall immediately become due and payable. With respect to
all Letters of Credit with respect to which presentment for honor shall not
have occurred at the time of an acceleration pursuant to this paragraph, the
Borrowershall at such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied bythe Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon,
if any, shall be applied to repay other obligations ofthe Borrower hereunder
and under the other Loan Documents. After all such Letters of Credit shall
have expired or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrower hereunder
andunder the other Loan Documents shall have been paid in full and no Letters
of Credit shall be outstanding, the balance, if any, in such cash collateral
account shall be returned to the Borrower (or such other Person as may be
lawfully entitledthereto). Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower.
In addition to any other rights and remedies granted to the Administrative
Agent and the Lenders in the Loan Documents, the Administrative Agent on
behalf ofthe Lenders may exercise all rights and remedies of a secured party
under the New York Uniform Commercial Code or any other applicable law.
Without limiting the generality of the foregoing, the Administrative Agent,
without demand of performance orother demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law
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referred to below) to or upon any Loan Party or any other Person (all and each
of which demands, defenses, advertisements and notices are hereby waived), may
in such circumstances forthwithcollect, receive, appropriate and realize upon
the Collateral, or any part thereof, or consent to the use by the Loan Parties
of any cash collateral arising in respect of the Collateral on such terms as
the Administrative Agent deems reasonable,and/or may forthwith sell, lease,
assign give an option or options to purchase or otherwise dispose of and
deliver, or acquire by credit bid on behalf of the Lenders, the Collateral or
any part thereof (or contract to do any of the foregoing), inone or more
parcels at public or private sale or sales, at any exchange, broker's board or
office of the Administrative Agent or any Lender or elsewhere, upon such terms
and conditions as it may deem advisable and at such prices as it may deembest,
for cash or on credit or for future delivery, all without assumption of any
credit risk. The Administrative Agent or any Lender shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such privatesale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption in any Loan Party, which
right or equity is hereby waived and released. The Borrower further agrees, at
the AdministrativeAgent's request, to assemble, or cause the applicable Loan
Party to assemble, the Collateral and make it available to the Administrative
Agent at places which the Administrative Agent shall reasonably select,
whether at the Borrower's orsuch Loan Party's premises or elsewhere. The
Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 8, after deducting all reasonable costs and expenses
of every kind incurred in connectiontherewith or incidental to the care or
safekeeping of any of the Collateral or in any other way relating to the
Collateral or the rights of the Administrative Agent and the Lenders
hereunder, including reasonable attorneys' fees anddisbursements, to the
payment in whole or in part of the obligations of the Loan Parties under the
Loan Documents, in such order as the Administrative Agent may elect, and only
after such application and after the payment by the Administrative Agentof any
other amount required by any provision of law, including
Section 9-615(a)(3)
of the New York UCC, need the Administrative Agent account for the surplus, if
any, to any Loan Party. To the extentpermitted by applicable law, the Borrower
on behalf of itself and the other Loan Parties, waives all claims, damages and
demands it or any other Loan Party may acquire against the Administrative
Agent or any Lender arising out of the exercise bythem of any rights
hereunder, except to the extent such damages are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Administrative Agent or
suchLender, as the case may be. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or
other disposition.
SECTION 9. THE AGENTS
9.1
Appointment
. (a) Each Lender hereby irrevocably appoints the entity named as
Administrative Agent in the heading of this Agreementand its successors and
assigns to serve as the administrative agent under the Loan Documents and each
Lender and each Issuing Lender authorizes the Administrative Agent to take
such actions as agent on its behalf and to exercise such powers underthis
Agreement and the other Loan Documents as are delegated to the Administrative
Agent under such agreements and to exercise such powers as are reasonably
incidental thereto. Without limiting the foregoing, each Lender hereby
authorizes theAdministrative Agent to execute and deliver, and to perform its
obligations under, each of the Loan Documents to which the Administrative
Agent is a party, and to exercise all rights, powers and remedies that the
Administrative Agent may have undersuch Loan Documents.
(b) As to any matters not expressly provided for herein and in the other Loan
Documents (including enforcement orcollection), the Administrative Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the writteninstructions of the Required
Lenders
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(or such other number or percentage of the Lenders as shall be necessary,
pursuant to the terms in the Loan Documents), and, unless and until revoked in
writing, such instructions shall bebinding upon each Lender; provided,
however, that the Administrative Agent shall not be required to take any
action that (i) the Administrative Agent in good faith believes exposes it to
liability unless the Administrative Agent receives anindemnification and is
exculpated in a manner satisfactory to it from the Lenders and the Issuing
Lenders with respect to such action or (ii) is contrary to this Agreement or
any other Loan Document or applicable law, including any action thatmay be in
violation of the automatic stay under any requirement of law relating to
bankruptcy, insolvency or reorganization or relief of debtors or that may
effect a forfeiture, modification or termination of property of a Defaulting
Lender inviolation of any requirement of law relating to bankruptcy,
insolvency or reorganization or relief of debtors;
provided
,
further
, that the Administrative Agent may seek clarification or direction from the
Required Lenders (or, formatters that require consent of a greater or
different number or percentage pursuant to Section 10.1, such other number or
percentage of Lenders) prior to the exercise of any such instructed action and
may refrain from acting until suchclarification or direction has been
provided. Except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to theBorrower,
any Subsidiary or any Affiliate of any of the foregoing that is communicated
to or obtained by the Person serving as Administrative Agent or any of its
Affiliates in any capacity. Nothing in this Agreement shall require the
AdministrativeAgent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment ofsuch funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(c) In performing its functions andduties hereunder and under the other Loan
Documents, the Administrative Agent is acting solely on behalf of the Lenders
and the Issuing Lenders (except in limited circumstances expressly provided
for herein relating to the maintenance of theRegister), and its duties are
entirely mechanical and administrative in nature. Without limiting the
generality of the foregoing, the Administrative Agent does not assume and
shall not be deemed to have assumed any obligation or duty or any
otherrelationship as the agent, fiduciary or trustee of or for any Lender,
other than as expressly set forth herein and in the other Loan Documents,
regardless of whether a Default or an Event of Default has occurred and is
continuing (and it isunderstood and agreed that the use of the term "agent"
(or any similar term) herein or in any other Loan Document with reference to
the Administrative Agent is not intended to connote any fiduciary duty or
other implied (or express)obligations arising under agency doctrine of any
applicable law, and that such term is used as a matter of market custom and is
intended to create or reflect only an administrative relationship between
contracting parties); additionally, each Lenderagrees that it will not assert
any claim against the Administrative Agent based on an alleged breach of
fiduciary duty by the Administrative Agent in connection with this Agreement
and/or the transactions contemplated hereby.
(d) Nothing in this Agreement or any Loan Document shall require the
Administrative Agent to account to any Lender for any sum or the profitelement
of any sum received by the Administrative Agent for its own account.
(e) The Administrative Agent may perform any of its dutiesand exercise its
rights and powers hereunder or under any other Loan Document by or through any
one or more
sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent
may perform any of their respective duties and exercise their respective
rights and powers through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such
sub-agent
and to the Related Parties of the Administrative Agent and any such
sub-agent,
and shall apply to their respective activities pursuant to this Agreement.
TheAdministrative Agent shall not be responsible for the negligence or
misconduct of any
sub-agent
except to the extent that a court of competent jurisdiction determines in a
final and nonappealable judgment thatthe Administrative Agent acted with gross
negligence or willful misconduct in the selection of such
sub-agent.
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(f) No Arranger shall have obligations or duties whatsoever in such capacity
under thisAgreement or any other Loan Document and shall incur no liability
hereunder or thereunder in such capacity, but all such persons shall have the
benefit of the indemnities provided for hereunder.
(g) In case of the pendency of any proceeding with respect to any Loan Party
under any Federal, state or foreign bankruptcy, insolvency,receivership or
similar law now or hereafter in effect, the Administrative Agent (irrespective
of whether the principal of any Loan or any Reimbursement Obligation shall
then be due and payable as herein expressed or by declaration or otherwise
andirrespective of whether the Administrative Agent shall have made any demand
on the Borrower) shall be entitled and empowered (but not obligated) by
intervention in such proceeding or otherwise:
to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loans and all other Obligations that are
owingand unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the Administrative
Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.17 and 9.3)
allowed in such judicialproceeding; and
to collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Lenderand each other Secured Party to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders or the other Secured Parties,
to pay to theAdministrative Agent any amount due to it, in its capacity as the
Administrative Agent, under the Loan Documents (including under Section 9.3).
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize orconsent to or accept or adopt on behalf of any Lender or
Issuing Lender any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or Issuing
Lender or to authorize the AdministrativeAgent to vote in respect of the claim
of any Lender or Issuing Lender in any such proceeding.
(a) The provisions of this Article aresolely for the benefit of the
Administrative Agent, the Lenders and the Issuing Lenders, and, except solely
to the extent of the Borrower's rights to consent pursuant to and subject to
the conditions set forth in this Article, none of theBorrower or any
Subsidiary, or any of their respective Affiliates, shall have any rights as a
third party beneficiary under any such provisions. Each Secured Party, whether
or not a party hereto, will be deemed, by its acceptance of the benefits ofthe
Collateral and of the Guarantees of the Obligations provided under the Loan
Documents, to have agreed to the provisions of this Article.
9.2
Administrative Agent
'
s Reliance, Indemnification, Etc.
(a) Neither the Administrative Agent nor any of itsRelated Parties shall be
(i) liable for any action taken or omitted to be taken by such party, the
Administrative Agent or any of its Related Parties under or in connection with
this Agreement or the other Loan Documents (x) with theconsent of or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith to be necessary, under the circumstances as provided in theLoan
Documents) or (y) in the absence of its own gross negligence or willful
misconduct (such absence to be presumed unless otherwise determined by a court
of competent jurisdiction by a final and
non-appealable
judgment) or (ii) responsible in any manner to any of the Lenders
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for any recitals, statements, representations or warranties made by any Loan
Party or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report,statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability orsufficiency of this
Agreement or any other Loan Document (including, for the avoidance of doubt,
in connection with the Administrative Agent's reliance on any Electronic
Signature transmitted by facsimile, emailed pdf. or any other electronicmeans
that reproduces an image of an actual executed signature page) or for any
failure of any Loan Party to perform its obligations hereunder or thereunder.
(b) The Administrative Agent shall be deemed not to have knowledge of any
Default unless and until written notice thereof (stating that it isa "notice
of default") is given to the Administrative Agent by the Borrower, a Lender or
an Issuing Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement,warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or
in connection therewith, (iii) the performance or observance of any of
thecovenants, agreements or other terms or conditions set forth in any Loan
Document or the occurrence of any Default, (iv) the sufficiency, validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement,instrument or document, (v) the satisfaction of any condition set
forth in Article IV or elsewhere in any Loan Document, other than to confirm
receipt of items (which on their face purport to be such items) expressly
required to be delivered tothe Administrative Agent or satisfaction of any
condition that expressly refers to the matters described therein being
acceptable or satisfactory to the Administrative Agent or (vi) the creation,
perfection or priority of Liens on theCollateral.
(c) Without limiting the foregoing, the Administrative Agent (i) may treat the
payee of any promissory note as itsholder until such promissory note has been
assigned in accordance with Section 10.6, (ii) may rely on the Register to the
extent set forth in Section 10.6(b), (iii) may consult with legal counsel
(including counsel to the Borrower),independent public accountants and other
experts selected by it, and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts, (iv) makes nowarranty or representation to
any Lender or Issuing Lender and shall not be responsible to any Lender or
Issuing Lender for any statements, warranties or representations made by or on
behalf of any Loan Party in connection with this Agreement or anyother Loan
Document, (v) in determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or an Issuing Lender,
maypresume that such condition is satisfactory to such Lender or Issuing
Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender or Issuing Lender sufficiently in advance of the
making of such Loan or theissuance of such Letter of Credit and (vi) shall be
entitled to rely on, and shall incur no liability under or in respect of this
Agreement or any other Loan Document by acting upon, any notice, consent,
certificate or other instrument orwriting (which writing may be a fax, any
electronic message, Internet or intranet website posting or other
distribution) or any statement made to it orally or by telephone and believed
by it to be genuine and signed or sent or otherwiseauthenticated by the proper
party or parties (whether or not such Person in fact meets the requirements
set forth in the Loan Documents for being the maker thereof).
9.3
Posting of Communications
. (a) The Borrower agrees that the Administrative Agent may, but shall not be
obligated to, make anyCommunications available to the Lenders and the Issuing
Lenders by posting the Communications on IntraLinks
TM
, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by
theAdministrative Agent to be its electronic transmission system (the "
Approved Electronic Platform
").
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(b) Although the Approved Electronic Platform and its primary web portal are
secured withgenerally-applicable security procedures and policies implemented
or modified by the Administrative Agent from time to time (including, as of
the Closing Date, a user ID/password authorization system) and the Approved
Electronic Platform is securedthrough a
per-deal
authorization method whereby each user may access the Approved Electronic
Platform only on a
deal-by-deal
basis, each of the Lenders, each of the Issuing Lenders and the Borrower
acknowledges and agrees that the distribution of material through an
electronic medium is not necessarily secure, that the Administrative Agent is
not responsible for approvingor vetting the representatives or contacts of any
Lender that are added to the Approved Electronic Platform, and that there may
be confidentiality and other risks associated with such distribution. Each of
the Lenders, each of the Issuing Lendersand the Borrower hereby approves
distribution of the Communications through the Approved Electronic Platform
and understands and assumes the risks of such distribution.
(c) THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED "AS
IS" AND "AS AVAILABLE". THE APPLICABLEPARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF
THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS
OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THECOMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROMVIRUSES OR OTHER CODE DEFECTS, IS MADE BY
THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED
ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER
OR ANY OF THEIR RESPECTIVE RELATED PARTIES(COLLECTIVELY, "
APPLICABLE PARTIES
") HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER, ANY ISSUING LENDER OR ANY
OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT,
SPECIAL, INCIDENTAL ORCONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN
TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY'S OR THE
ADMINISTRATIVE AGENT'S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR
THE APPROVED ELECTRONIC PLATFORM.
(d) Each Lender agrees that notice to it (as provided in the next sentence)
specifying that Communications have been posted to the ApprovedElectronic
Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Loan Documents. Each Lender agrees (i) to notify
the Administrative Agent in writing (which could be in the form of
electroniccommunication) from time to time of such Lender's or Issuing
Lender's (as applicable) email address to which the foregoing notice may be
sent by electronic transmission and (ii) that the foregoing notice may be sent
to such emailaddress.
(e) Each of the Lenders and the Borrower agrees that the Administrative Agent
may, but (except as may be required by applicablelaw) shall not be obligated
to, store the Communications on the Approved Electronic Platform in accordance
with the Administrative Agent's generally applicable document retention
procedures and policies, but subject to the requirements ofSection 10.15.
(f) Nothing herein shall prejudice the right of the Administrative Agent or
any Lender to give any notice or othercommunication pursuant to any Loan
Document in any other manner specified in such Loan Document.
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9.4
The Administrative Agent Individually
With respect to its Commitment and Loans,Letter of Credit Commitments and
Letters of Credit, the Person serving as the Administrative Agent shall have
and may exercise the same rights and powers hereunder and is subject to the
same obligations and liabilities as and to the extent set forthherein for any
other Lender or Issuing Lender, as the case may be. The terms "Lenders",
"Required Lenders" and any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in itsindividual
capacity as a Lender or as one of the Required Lenders, as applicable. The
Person serving as the Administrative Agent and its Affiliates may accept
deposits from, lend money to, own securities of, act as the financial advisor
or in anyother advisory capacity for and generally engage in any kind of
banking, trust or other business with, the Borrower, any Subsidiary or any
Affiliate of any of the foregoing as if such Person was not acting as the
Administrative Agent and without anyduty to account therefor to the Lenders or
the Issuing Lenders.
9.5
Successor Administrative Agent
. (a) The Administrative Agentmay resign at any time by giving 30 days' prior
written notice thereof to the Lenders and the Borrower, whether or not a
successor Administrative Agent has been appointed. Upon any such resignation,
the Required Lenders shall have the right toappoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving ofnotice of resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a bank with an office in New
York, New York or an Affiliate in New York, New York of any such bank.In
either case, such appointment shall be subject to the prior written approval
of the Borrower (which approval may not be unreasonably withheld and shall not
be required while an Event of Default has occurred and is continuing). Upon
the acceptanceof any appointment as Administrative Agent by a successor
Administrative Agent, such successor Administrative Agent shall succeed to,
and become vested with, all the rights, powers, privileges and duties of the
retiring Administrative Agent. Uponthe acceptance of appointment as
Administrative Agent by a successor Administrative Agent, the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. Prior to any retiringAdministrative
Agent's resignation hereunder as Administrative Agent, the retiring
Administrative Agent shall take such action as may be reasonably necessary to
assign to the successor Administrative Agent its rights as Administrative
Agentunder the Loan Documents.
(b) Notwithstanding paragraph (a) of this Section, in the event no successor
Administrative Agent shallhave been so appointed and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives
notice of its intent to resign, the retiring Administrative Agent may give
notice of the effectiveness of its resignation tothe Lenders and the Borrower,
whereupon, on the date of effectiveness of such resignation stated in such
notice, (i) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other LoanDocuments;
provided
that, solely for purposes of maintaining any security interest granted to the
Administrative Agent under any Security Document for the benefit of the
Secured Parties, the retiring Administrative Agent shall continue to bevested
with such security interest as collateral agent for the benefit of the Secured
Parties, and continue to be entitled to the rights set forth in such Security
Document and Loan Document, and, in the case of any Collateral in the
possession ofthe Administrative Agent, shall continue to hold such Collateral,
in each case until such time as a successor Administrative Agent is appointed
and accepts such appointment in accordance with this Section (it being
understood and agreed that theretiring Administrative Agent shall have no duty
or obligation to take any further action under any Security Document,
including any action required to maintain the perfection of any such security
interest), and (ii) the Required Lenders shallsucceed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent;
provided
that (A) all payments required to be made hereunder or under any other Loan
Document to the AdministrativeAgent for the account of any Person other than
the Administrative Agent shall be made directly to such Person and (B) all
notices and other communications required or contemplated to be given or made
to the Administrative Agent shall directlybe given or made to each Lender.
Following the effectiveness of the Administrative Agent's resignation from its
capacity as such,
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the provisions of this Article and Section 10.3, as well as any exculpatory,
reimbursement and indemnification provisions set forth in any other Loan
Document, shall continue in effect forthe benefit of such retiring
Administrative Agent, its
sub-agents
and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring AdministrativeAgent was
acting as Administrative Agent and in respect of the matters referred to in
the proviso under clause (i) above.
(c) Anysuccessor Administrative Agent appointed pursuant to this Section 9.5
shall deliver to Borrower, on or before the date on which it becomes the
Administrative Agent hereunder, either (i) a duly executed copy of IRS Form
W-9
(or any applicable successor form) certifying that the successor Administrative
Agent is not subject to backup withholding, or (ii) (A) a duly completed and
executed copy of IRS Form
W-8ECI
to establish that the successor Administrative Agent is not subject to
withholding Taxes under the Code with respect to any amounts payable for the
account of the successor Administrative Agent under any ofthe Loan Documents,
and (B) a duly executed copy of IRS Form
W-8IMY,
certifying on Part I and Part VI of such IRS Form
W-8IMY
(or applicable successor form orParts) that it is a U.S. branch that has
agreed to be treated as a U.S. person for United States federal withholding
Tax purposes with respect to payments received by it from Borrower for the
account of others under the Loan Documents.
9.6
Acknowledgments of Lenders and Issuing Lenders
. (a) Each Lender represents that it is engaged in making, acquiring or
holdingcommercial loans in the ordinary course of its business and that it
has, independently and without reliance upon the Administrative Agent, any
Arranger or any other Lender, or any of the Related Parties of any of the
foregoing, and based on suchdocuments and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each
Lender also acknowledges that it will, independently andwithout reliance upon
the Administrative Agent, any Arranger or any other Lender, or any of the
Related Parties of any of the foregoing, and based on such documents and
information (which may contain material,
non-public
information within the meaning of the United States securities laws concerning
the Borrower and its Affiliates) as it shall from time to time deem
appropriate, continue to make its own decisions intaking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.
(b) Each Lender, by delivering its signature page to this Agreement on the
Closing Date, or delivering its signature page to an Assignment andAssumption
or any other Loan Document pursuant to which it shall become a Lender
hereunder, shall be deemed to have acknowledged receipt of, and consented to
and approved, each Loan Document and each other document required to be
delivered to, or beapproved by or satisfactory to, the Administrative Agent or
the Lenders on the Closing Date.
(c) Each Lender hereby further agrees thatif it receives a payment from the
Administrative Agent or any of its Affiliates (x) that is in a different
amount than, or on a different date from, that specified in a notice of
payment sent by the Administrative Agent (or any of itsAffiliates) with
respect to such payment (a "
Payment Notice
") or (y) that was not preceded or accompanied by a Payment Notice, it shall
be on notice, in each such case, that an error has been made with respect to
such payment.Each Lender agrees that, in each such case, or if it otherwise
becomes aware a payment (or portion thereof) may have been sent in error, such
Lender shall promptly notify the Administrative Agent of such occurrence and,
upon demand from theAdministrative Agent, it shall promptly, but in no event
later than one Business Day thereafter, return to the Administrative Agent the
amount of any such payment (or portion thereof) as to which such a demand was
made in same day funds, togetherwith interest thereon in respect of each day
from and including the date such payment (or portion thereof) was received by
such Lender to the date such amount is repaid to the Administrative Agent at
the greater of the NYFRB Rate and a ratedetermined by the Administrative Agent
in accordance with banking industry rules on interbank compensation from time
to time in effect.
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9.7
Collateral Matters
. (a) Except with respect to the exercise of setoff rights inaccordance with
Section 9.8 or with respect to a Secured Party's right to file a proof of
claim in an insolvency proceeding, no Secured Party shall have any right
individually to realize upon any of the Collateral or to enforce anyGuarantee
of the Obligations, it being understood and agreed that all powers, rights and
remedies under the Loan Documents may be exercised solely by the Administrative
Agent on behalf of the Secured Parties in accordance with the terms thereof.
(b) The Secured Parties irrevocably authorize the Administrative Agent, at its
option and in its discretion, to subordinate any Lien onany property granted
to or held by the Administrative Agent under any Loan Document to the holder
of any Lien on such property that is permitted by Section 7.3. The
Administrative Agent shall not be responsible for or have a duty to
ascertainor inquire into any representation or warranty regarding the
existence, value or collectability of the Collateral, the existence, priority
or perfection of the Administrative Agent's Lien thereon or any certificate
prepared by any Loan Party inconnection therewith, nor shall the Administrative
Agent be responsible or liable to the Lenders or any other Secured Party for
any failure to monitor or maintain any portion of the Collateral.
(c) At least once each calendar year, the Administrative Agent will conduct or
caused to be conducted an Annual Field Examination, pursuant toSection 6.6(c),
and an Annual Inventory Appraisal, pursuant to Sections 6.6(b).
9.8
Credit Bidding
. The Secured Partieshereby irrevocably authorize the Administrative Agent, at
the direction of the Required Lenders, to credit bid all or any portion of the
Obligations (including by accepting some or all of the Collateral in
satisfaction of some or all of theObligations pursuant to a deed in lieu of
foreclosure or otherwise) and in such manner purchase (either directly or
through one or more acquisition vehicles) all or any portion of the Collateral
(a) at any sale thereof conducted under theprovisions of the Bankruptcy Code,
including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any
similar laws in any other jurisdictions to which a Loan Party is subject, or
(b) at any other sale, foreclosure or acceptance ofcollateral in lieu of debt
conducted by (or with the consent or at the direction of) the Administrative
Agent (whether by judicial action or otherwise) in accordance with any
applicable law. In connection with any such credit bid and purchase,
theObligations owed to the Secured Parties shall be entitled to be, and shall
be, credit bid by the Administrative Agent at the direction of the Required
Lenders on a ratable basis (with Obligations with respect to contingent or
unliquidated claimsreceiving contingent interests in the acquired assets on a
ratable basis that shall vest upon the liquidation of such claims in an amount
proportional to the liquidated portion of the contingent claim amount used in
allocating the contingentinterests) for the asset or assets so purchased (or
for the equity interests or debt instruments of the acquisition vehicle or
vehicles that are issued in connection with such purchase). In connection with
any such bid, (i) the AdministrativeAgent shall be authorized to form one or
more acquisition vehicles and to assign any successful credit bid to such
acquisition vehicle or vehicles, (ii) each of the Secured Parties' ratable
interests in the Obligations which were creditbid shall be deemed without any
further action under this Agreement to be assigned to such vehicle or vehicles
for the purpose of closing such sale, (iii) the Administrative Agent shall be
authorized to adopt documents providing for thegovernance of the acquisition
vehicle or vehicles (provided that any actions by the Administrative Agent
with respect to such acquisition vehicle or vehicles, including any
disposition of the assets or equity interests thereof, shall be governed,directl
y or indirectly, by, and the governing documents shall provide for, control by
the vote of the Required Lenders or their permitted assignees under the terms
of this Agreement or the governing documents of the applicable acquisition
vehicle orvehicles, as the case may be, irrespective of the termination of
this Agreement and without giving effect to the limitations on
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actions by the Required Lenders contained in Section 10.1 of this Agreement),
(iv) the Administrative Agent on behalf of such acquisition vehicle or
vehicles shall be authorized to issue toeach of the Secured Parties, ratably
on account of the relevant Obligations which were credit bid, interests,
whether as equity, partnership interests, limited partnership interests or
membership interests, in any such acquisition vehicle and/ordebt instruments
issued by such acquisition vehicle, all without the need for any Secured Party
or acquisition vehicle to take any further action, and (v) to the extent that
Obligations that are assigned to an acquisition vehicle are not usedto acquire
Collateral for any reason (as a result of another bid being higher or better,
because the amount of Obligations assigned to the acquisition vehicle exceeds
the amount of Obligations credit bid by the acquisition vehicle or
otherwise),such Obligations shall automatically be reassigned to the Secured
Parties pro rata with their original interest in such Obligations and the
equity interests and/or debt instruments issued by any acquisition vehicle on
account of such Obligationsshall automatically be cancelled, without the need
for any Secured Party or any acquisition vehicle to take any further action.
Notwithstanding that the ratable portion of the Obligations of each Secured
Party are deemed assigned to the acquisitionvehicle or vehicles as set forth
in clause (ii) above, each Secured Party shall execute such documents and
provide such information regarding the Secured Party (and/or any designee of
the Secured Party which will receive interests in or debtinstruments issued by
such acquisition vehicle) as the Administrative Agent may reasonably request
in connection with the formation of any acquisition vehicle, the formulation
or submission of any credit bid or the consummation of the transactionscontempla
ted by such credit bid.
9.9
Certain ERISA Matters
. (a) Each Lender (x) represents and warrants, as of the date suchPerson
became a Lender party hereto, to, and (y) covenants, from the date such Person
became a Lender party hereto to the date such Person ceases being a Lender
party hereto, for the benefit of, the Administrative Agent, and each Arranger
andtheir respective Affiliates, and not, for the avoidance of doubt, to or for
the benefit of the Borrower or any other Loan Party, that at least one of the
following is and will be true:
such Lender is not using "plan assets" (within the meaning of the Plan Asset
Regulations) of one or more Benefit Plans in connectionwith the Loans, the
Letters of Credit or the Commitments,
the transaction exemption set forth in one or more PTEs, such as PTE
84-14
(a class exemption for certain transactions determined by independent
qualified professional asset managers), PTE
95-60
(a class exemption for certain transactionsinvolving insurance company general
accounts), PTE
90-1
(a class exemption for certain transactions involving insurance company pooled
separate accounts), PTE
91-38
(aclass exemption for certain transactions involving bank collective
investment funds) or PTE
96-23
(a class exemption for certain transactions determined by
in-house
asset managers), is applicable with respect to such Lender's entrance into,
participation in, administration of and performance of the Loans, the Letters
of Credit, the Commitments and this Agreement,
(A) such Lender is an investment fund managed by a "Qualified Professional
Asset Manager" (within the meaning of Part VI of PTE
84-14),
(B) such Qualified Professional Asset Manager made the investment decision on
behalf of such Lender to enter into, participate in, administer and perform
the Loans, the Letters of Credit, the Commitments andthis Agreement, (C) the
entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Commitments and this Agreement satisfies the
requirements of
sub-sections
(b) through (g) of Part I of PTE
84-14
and (D) to the best knowledge of such Lender, the requirements of subsection
(a) of Part I of PTE
84-14
are satisfied with respect to such Lender's entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement, or
such other representation, warranty and covenant as may be agreed in writing
between the Administrative Agent, in its sole discretion, andsuch Lender.
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(b) In addition, unless
sub-clause
(i) in theimmediately preceding clause (a) is true with respect to a Lender or
such Lender has provided another representation, warranty and covenant as
provided in
sub-clause
(iv) in the immediately precedingclause (a), such Lender further (x)
represents and warrants, as of the date such Person became a Lender party
hereto, to, and (y) covenants, from the date such Person became a Lender party
hereto to the date such Person ceases being aLender party hereto, for the
benefit of, the Administrative Agent, and each Arranger and their respective
Affiliates, and not, for the avoidance of doubt, to or for the benefit of the
Borrower or any other Loan Party, that none of the AdministrativeAgent, or any
Arranger or any of their respective Affiliates is a fiduciary with respect to
the Collateral or the assets of such Lender (including in connection with the
reservation or exercise of any rights by the Administrative Agent under
thisAgreement, any Loan Document or any documents related to hereto or
thereto).
(c) The Administrative Agent hereby informs the Lenders thatit is not
undertaking to provide investment advice or to give advice in a fiduciary
capacity, in connection with the transactions contemplated hereby, and that
such Person has a financial interest in the transactions contemplated hereby
in that suchPerson or an Affiliate thereof (i) may receive interest or other
payments with respect to the Loans, the Letters of Credit, the Commitments,
this Agreement and any other Loan Documents (ii) may recognize a gain if it
extended the Loans,the Letters of Credit or the Commitments for an amount less
than the amount being paid for an interest in the Loans, or the Commitments by
such Lender or (iii) may receive fees or other payments in connection with the
transactions contemplatedhereby, the Loan Documents or otherwise, including
structuring fees, commitment fees, arrangement fees, facility fees, upfront
fees, underwriting fees, ticking fees, agency fees, administrative agent or
collateral agent fees, utilization fees,minimum usage fees, letter of credit
fees, fronting fees, deal-away or alternate transaction fees, amendment fees,
processing fees, term out premiums, banker's acceptance fees, breakage or
other early termination fees or fees similar to theforegoing.
9.10
Flood Insurance Laws
. JPMCB has adopted internal policies and procedures that address requirements
placed onfederally regulated lenders under the Flood Insurance Laws. JPMCB, as
administrative agent or collateral agent on a syndicated facility, will post
on the applicable electronic platform (or otherwise distribute to each Lender
in the syndicate)documents that it receives in connection with the Flood
Insurance Laws. However, JPMCB reminds each Lender and Participant in the
facility that, pursuant to the Flood Insurance Laws, each federally regulated
Lender (whether acting as a Lender orParticipant in the facility) is
responsible for assuring its own compliance with the flood insurance
requirements.
SECTION10. MISCELLANEOUS
10.1
Amendments and Waivers
. Subject to Section 2.16(b), neither this Agreement, any other LoanDocument,
nor any terms hereof or thereof may be amended, supplemented or modified
except in accordance with the provisions of this Section 10.1. The Required
Lenders and each Loan Party party to the relevant Loan Document may, or, with
thewritten consent of the Required Lenders, the Administrative Agent and each
Loan Party party to the relevant Loan Document may, from time to time, (a)
enter into written amendments, supplements or modifications hereto and to the
other LoanDocuments for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the
Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions asthe Required Lenders or the Administrative Agent, as
the case may be, may specify in such instrument, any of the requirements of
this Agreement or the other Loan Documents or any Default or Event of Default
and its consequences;
provided
,
however
, that no such waiver and no such amendment, supplement or modification shall
(i) forgive the principal amount or extend the final scheduled date of
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maturity of any Loan, reduce the stated rate of any interest or fee payable
hereunder (except (x) in connection with the waiver of applicability of any
post-default increase in interestrates (which waiver shall be effective with
the consent of the Majority Facility Lenders of each adversely affected
Facility) and (y) that any amendment or modification of defined terms used in
the financial covenants in this Agreement shallnot constitute a reduction in
the rate of interest or fees for purposes of this clause (i)) or extend the
scheduled date of any payment thereof, or increase the amount or extend the
expiration date of any Lender's Commitment, in each casewithout the written
consent of each Lender directly affected thereby; (ii) eliminate or reduce the
voting rights of any Lender under this Section 10.1 without the written
consent of such Lender; (iii) reduce any percentage specifiedin the definition
of "Required Lenders" "Supermajority Lenders" or "Majority Facility Lenders"
without the written consent of each Lender of the applicable Facility or
change any other provision of this Agreement or anyother Loan Document
specifying the number or percentage of Lenders (or Lenders of any Facility)
required to waive, amend or otherwise modify any rights thereunder or make any
determination or grant any consent thereunder without the written consentof
each Lender (or each Lender of the applicable Facility, as applicable), (iv)
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release all
orsubstantially all of the Collateral or release all or substantially all of
the Subsidiary Guarantors from their obligations under the Guarantee and
Collateral Agreement, in each case without the written consent of all Lenders;
(v) amend, modifyor waive any provision of Section 2.17 without the written
consent of each Lender in respect of each Facility adversely affected thereby;
(vi) increase the advance rates set forth in the definition of "Borrowing
Base" or add newcategories of eligible assets, without the written consent of
the Supermajority Lenders; (vii) modify eligibility criteria, as such
eligibility criteria are in effect on the Closing Date (including adding new
categories of eligible assets oreliminating any category of the Reserves in
effect on the Closing Date; provided, however, that, for the avoidance of
doubt, notwithstanding anything in this Section 10.1 to the contrary, the
Administrative Agent may, in its PermittedDiscretion and without the consent
of any other Lenders, eliminate any category of Reserve that was added after
the Closing Date by the Administrative Agent) in any manner that has the
effect of increasing the amounts available to be borrowedhereunder without the
written consent of the Supermajority Lenders; (viii) amend, modify or waive
any provision of Section 9 or any other provision of any Loan Document that
affects the Administrative Agent without the written consent ofthe
Administrative Agent; (ix) prior to the occurrence of any Event of Default
under clause (g)(i) or (g)(ii) of Section 8, subordinate the Lien on all or
substantially all of the Collateral securing the Obligations to the Lien
securingany other Indebtedness without the written consent of each Lender
affected thereby;
provided
that the consent of each affected Lender pursuant to this clause (ix) shall
not be required in connection with any
"debtor-in-possession"
financing or the use of the Collateral in any insolvency proceeding;
provided
,
further
, that, for the avoidance of doubt, noLender consent shall be required with
respect to any subordination of Liens expressly permitted pursuant to Sections
9.7(b) and 10.14(a), in each case, as in effect on the Third Amendment
Effective Date; or (x) amend, modify or waive anyprovision of Section 3
without the written consent of the Issuing Lender. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Loan Parties, the Lenders, theAdministrati
ve Agent and all future holders of the Loans. In the case of any waiver, the
Loan Parties, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under the other Loan Documents,
andany Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
Notwithstanding the foregoing, (i) this Agreement may be amended (or amended
and restated) with the written consent of the RequiredLenders, the
Administrative Agent and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time
to time outstanding thereunder and the accrued interest and fees inrespect
thereof to share in the benefits of this Agreement and the other Loan
Documents with the Revolving Extensions of Credit and the accrued interest and
fees in respect thereof, in each case, as permitted by this Agreement and (b)
toinclude
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appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders and Majority Facility Lenders and (ii) no Lender's
consent is required to effectany amendment or supplement to any intercreditor
agreement or arrangement that is not prohibited by this Agreement that is for
the purpose of adding the holders of any Indebtedness as expressly
contemplated by the terms of such intercreditoragreement or arrangement and
such other amendments reasonably related thereto as the Administrative Agent
may determine.
Furthermore,notwithstanding the foregoing, (i) the Administrative Agent, with
the consent of the Borrower, may amend, modify or supplement any Loan Document
without the consent of any Lender or the Required Lenders in order to correct,
amend or cure anyambiguity, inconsistency or defect or correct any
typographical error or other manifest error in any Loan Document not
materially adverse to any Lender and (ii) the Loan Documents may be amended in
accordance with Section 2.24 andSection 2.25.
Subject to Section 6.10(e), if any
fee-owned
or leased real propertyshall be taken as Collateral then (a) the Lenders shall
receive 45 days' prior notice, (b) each Lender shall confirm to the
Administrative Agent that it has completed all flood due diligence, receives
copies of all flood insurancedocumentation and confirmed floor insurance
compliance as required by the Flood Insurance Laws or as otherwise
satisfactory to such Lender and (c) concurrently with the placement of the
initial Lien on real property as Collateral, thisAgreement shall be amended
(in a manner satisfactory to each federally-regulated Lender) to include
provisions regarding
on-going
compliance with Flood Insurance Laws, including a covenant to maintainappropriat
e flood insurance and provisions requiring satisfactory completion of flood
insurance due diligence by all Lenders prior to taking a new Lien on real
property or modifying any Loan Document to add, increase, renew or extend any
loan,commitment or credit line hereunder.
10.2
Notices
. All notices, requests and demands to or upon the respective parties hereto
tobe effective shall be in writing (including by facsimile or
e-mail),
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given or made when delivered, or three Business Daysafter being deposited
in the mail, postage prepaid, or, in the case of facsimile or
e-mail
notice, when received, addressed as follows in the case of the Borrower and
the Administrative Agent, and as set forthin an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
Borrower: Clearwater Paper Corporation
601 WestRiverside, Suite 1100
Spokane, WA 99201
Attention: HeidiBlair, VP, Treasurer
Facsimile:
509-444-9793
E-mail:
Heidi.blair@clearwaterpaper.com
with a copy to: Pillsbury Winthrop Shaw Pittman LLP
4Embarcadero Center
San Francisco, CA 94111
Attention: PhilipJ. Tendler, Esq.
Facsimile: (415)
983-1200
E-mail:
philip.tendler@pillsburylaw.com
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Administrative Agent: JPMorgan Chase Bank, N.A.
131 S Dearborn St, Floor 04
Chicago, IL 60603-5506
Attention: Loan and Agency Servicing
Email:
jpm.agency.cri@jpmorgan.com
Agency Withholding Tax Inquiries:
Email:
agency.tax.reporting@jpmorgan.com
AgencyCompliance/Financials/Intralinks:
Email:
covenant.compliance@jpmchase.com
with a copy to: JPMorgan Chase Bank, N.A.
1301 2
nd
Avenue, Floor 25
Seattle, WA 98101
Attention: Andrew Duzor, Executive Director
Phone:
206-500-1804
E-mail:
andrew.c.duzor@jpmorgan.com
Issuing Lender JPMorgan Chase Bank, N.A.
131 S Dearborn St, Floor 04
Chicago, IL,60603-5506
Attention: LC Agency Team
Tel:
800-364-1969
Fax:
856-294-5267
Email:
chicago.lc.agency.activity.team@jpmchase.com
with a copy to: JPMorgan Chase Bank, N.A.
131 S Dearborn St,Floor 04
Chicago, IL, 60603-5506
Attention: Loan and AgencyServicing
Email:
jpm.agency.cri@jpmorgan.com
provided
that any notice, request or demand to or upon the Administrative Agent or the
Lenders shall not be effectiveuntil received.
Notices and other communications to the Lenders hereunder may be delivered or
furnished by electronic communicationspursuant to procedures approved by the
Administrative Agent;
provided
that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. The
AdministrativeAgent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it;
provided
that approval of such procedures may be limited toparticular notices or
communications.
10.3
No Waiver; Cumulative Remedies
. No failure to exercise and no delay in exercising, onthe part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power
orprivilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies,powers and privileges provided by law.
10.4
Survival of Representations and Warranties
. All representations and warranties madehereunder, in the other Loan
Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans and other extensions ofcredit
hereunder.
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10.5
Limitation of Liability; Payment of Expenses and Taxes
. (a) The Loan Partiesagree that the Agents, Lenders, Arranger, Issuing
Lenders, their respective affiliates, and their respective officers,
directors, employees, agents, advisors and controlling persons, and with
respect to Issuing Lenders, correspondents and branches(each such Person being
called a "
Lender-Related Person
") shall not be liable for any damages arising from the use by others of
information or other materials obtained through electronic, telecommunications
or other informationtransmission systems, except to the extent any such
damages are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from (x) the gross negligence or
willful misconduct of such Lender-Related Person(or any of its Affiliates,
officers, directors, employees, agents, advisors or controlling persons) or
(y) a material breach in bad faith by such Indemnitee of its obligations under
the Loan Documents. No Lender-Related Person shall be liablefor any indirect,
special, exemplary, punitive or consequential damages in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby.
(b) The Borrower agrees (i) to pay or reimburse the Administrative Agent and
the Arrangers for all of their respective reasonable anddocumented
out-of-pocket
costs and expenses incurred in connection with the syndication of the
Commitments and the development, preparation and execution of, and
anyamendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby,including the reasonable and documented fees,
disbursements and other charges of one primary counsel to the Administrative
Agent and the Arrangers and, if necessary, one local counsel in each
applicable jurisdiction and filing and recording fees andexpenses, with
statements with respect to the foregoing to be submitted to the Borrower at
least three (3) Business Days prior to the Closing Date (in the case of
amounts to be paid on the Closing Date) and from time to time thereafter on
aquarterly basis or such other periodic basis as the Administrative Agent
shall deem appropriate, (ii) to pay or reimburse each Lender, Issuing Lender
and the Administrative Agent for all its reasonable and documented costs and
out-of-pocket
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents,including the reasonable and documented fees, disbursements and
other charges of counsel to the Administrative Agent and the Lenders and
including all reasonable and documented costs and expenses incurred during any
workout, restructuring ornegotiations (it being understood that expenses
reimbursed by the Borrower under this Section 10.5 shall include costs and
expenses incurred in connection with (A) appraisals, environmental reviews and
insurance reviews, (B) fieldexaminations and the preparation of Reports based
on the fees charged by a third party retained by the Administrative Agent or
the internally allocated fees for each Person employed by the Administrative
Agent with respect to each field examinationand (C) forwarding loan proceeds,
collecting checks and other items of payment and establishing and maintaining
the accounts and lock boxes, and costs and expenses of preserving and
protecting the Collateral, (iii) to pay, indemnify, andhold each Lender,
Issuing Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to the
execution and delivery of, or consummation or administration of any of
thetransactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (iv) to pay, indemnify, and
hold eachLender, the Arrangers and each Agent, their respective affiliates,
and their respective officers, directors, employees, agents, advisors and
controlling persons, and with respect to Issuing Lenders, correspondents and
branches (each, an"
Indemnitee
") harmless from and against any and all other liabilities, losses, claims,
damages, penalties, actions, judgments, suits, costs or expenses (including
the reasonable and documented fees, disbursements and other chargesof counsel)
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents, including any claim, litigation,investig
ation or proceeding regardless of whether any Indemnitee is a party thereto
and whether
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or not the same are brought by the Borrower, its equity holders, affiliates or
creditors or any other Person, including any of the foregoing relating to the
use of proceeds of the Loans orLetters of Credit (including any refusal by the
Issuing Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit) or theviolation of, noncompliance with or
liability under, any Environmental Law applicable to any Group Member or its
operations or properties and the reasonable and documented fees, disbursements
and other charges of legal counsel (limited to reasonableand documented fees,
disbursements and other charges of one primary counsel for all Indemnities
(taken together as a single group or client) and, if necessary, one local
counsel required in any relevant jurisdiction (which may include a
singlecounsel acting in multiple jurisdictions) and applicable special
regulatory counsel for all Indemnitees (and, in the case of an actual or
perceived conflict of interest, of another firm of counsel (and, if
applicable, another local counsel in anyrelevant jurisdiction and applicable
special regulatory counsel) for all similarly affected Indemnitees) (in
connection with claims, actions or proceedings by any Indemnitee against any
Loan Party under any Loan Document (all the foregoing in thisclause (iv),
collectively, the "
Indemnified Liabilities
"),
provided
, that the Borrower shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified
Liabilitiesare found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from (x) the bad faith, gross
negligence or willful misconduct of such Indemnitee (or any of its Affiliates,
officers, directors, employees,agents, advisors or controlling persons), (y) a
material breach by such Indemnitee of its obligations under the Loan Documents
or (z) disputes or proceedings that are brought by an Indemnitee against any
other Indemnitee (other than any claimsagainst any Arranger or Agent in its
capacity or in fulfilling its roles as an Arranger or Agent hereunder or any
similar role with respect to any Facility) to the extent such disputes do not
arise from any act or omission of any Loan Party or anyof its Affiliates.
Without limiting the foregoing, and to the extent permitted by applicable law,
the Borrower agrees not to assert and to cause its Subsidiaries not to assert,
and hereby waives and agrees to cause its Subsidiaries to waive, allrights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of themmight have by statute or otherwise against any Indemnitee. All
amounts due under this Section 10.5 shall be payable not later than 10 days
after written demand therefor. This Section 10.5 shall not apply with respect
to Taxes other thanany Taxes that represent losses or damages arising from any
non-Tax
claim. The agreements in this Section 10.5 shall survive the termination of
this Agreement and the repayment of the Loans and all otheramounts payable
hereunder.
10.6
Successors and Assigns; Participations and Assignments
. (a) The provisions of this Agreementshall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any affiliate of the Issuing Lender that issues
any Letter of Credit), except that (i) the Borrower maynot assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) noLender may
assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section.
(b) (i) Subject tothe conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more Eligible Assignees (each, an "
Assignee
"), all or a portion of its rights and obligations under this Agreement
(including all or a portion ofits Commitments and the Loans at the time owing
to it) with the prior written consent of:
(A) the Borrower (such consent not
to be unreasonably withheld),
provided
that no consent of the Borrowershall be required for an assignment to a Lender, an affiliate of a Lender, an Approved
Fund (as defined below) or, if a Specified Event of Default has occurred and is continuing, any other Person; and
provided
,
further
, that theBorrower shall be deemed to have consented to any such assignment unless the Borrower shall object thereto
by written notice to the Administrative Agent within 10 Business Days after having received notice thereof;
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(B) the Administrative Agent (such consent
not to be unreasonably withheld),
provided
that no consent of theAdministrative Agent shall be required for an assignment of all or any
portion of its Commitment or Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
(C) the Issuing Lender (such consent not to be unreasonably withheld).
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an affiliate of a
Lender or an Approved Fund or an assignmentof the entire remaining
amount of the assigning Lender's Commitments or Loans, the amount
of the Commitments or Loans of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Assumption with respectto such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000) unless each
of the Borrower and the Administrative Agent otherwise consent,
provided
that (1) no such consent of
the Borrower shall berequired
if an Event of Default has
occurred and is continuing
and (2) such amounts shall
be aggregated in respect of
each Lender and its affiliates
or Approved Funds, if any;
(B) (1) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment andAssumption, together with a processing
and recordation fee of $3,500 and (2) the assigning Lender shall have
paid in full any amounts owing by it to the Administrative Agent; and
(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrativequestionnaire in which
the Assignee designates one or more credit contacts to whom
all syndicate-level information (which may contain material
non-public
information about the Borrower and its Affiliates andtheir Related Parties
or their respective securities) will be made available and who may
receive such information in accordance with the Assignee's compliance
procedures and applicable laws, including Federal and state securities laws.
For the purposes of this Section 10.6, "
Approved Fund
" means any Person (other than a naturalperson) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of
credit in the ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an affiliate of a Lender or(c) an entity or an
affiliate of an entity that administers or manages a Lender.
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(iii) Subject to acceptance and recording thereof pursuant to paragraph(b)(iv)
below, from and after the effective date specified in each Assignment and
Assumption the Assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights
andobligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in
the case of anAssignment and Assumption covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.18, 2.19, 2.20 and 10.5).Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights andobligations in accordance with paragraph (c)
of this Section.
(iv) The Administrative Agent, acting for this purposeas an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount(and
stated interest) of the Loans and L/C Obligations owing, to each Lender
pursuant to the terms hereof from time to time (the "
Register
"). The entries in the Register shall be conclusive, and the Borrower, the
AdministrativeAgent, the Issuing Lender and the Lenders shall treat each
Person whose name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by
an assigning Lender and an Assignee, theAssignee's completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section
and any written consent to such assignmentrequired by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unlessit has been recorded
in the Register as
provided
in this paragraph.
(vi) Each assignee, by its execution anddelivery of an Assignment and
Assumption, shall be deemed to have represented to the assigning Lender and
the Administrative Agent that such assignee is an Eligible Assignee. In no
event shall the Administrative Agent be obligated to ascertain,monitor or
inquire as to whether any prospective assignee is an Eligible Assignee or have
any liability with respect to any assignment made to a Disqualified Lender or
any other Person that is not an Eligible Assignee
(c) Any Lender may, without the consent of the Borrower or the Administrative
Agent, sell participations to one or more Eligible Assignees (a"
Participant
") in all or a portion of such Lender's rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans owing
to it);
provided
that (i) such Lender'sobligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, and (iii) the Borrower, the
Administrative Agent, the IssuingLender and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement pursuant to which a
Lender sells such a participation shallprovide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement;
provided
that such agreement may provide that such Lender will not,without the consent
of the Participant, agree to any amendment, modification or waiver that (i)
requires the consent of each Lender directly affected thereby pursuant to the
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proviso to the second sentence of Section 10.1 and (ii) directly affects such
Participant. Each Lender that sells a participation agrees, at the Borrower's
request and expense, touse reasonable efforts to effectuate the provisions of
Section 2.22 with respect to any Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.18, 2.19 and 2.20
(subject to the requirements andlimitations therein, including the
requirements under Section 2.19(f) (it being understood that the documentation
required under Section 2.19(f) shall be delivered to the participating
Lender)) to the same extent as if it were a Lender andhad acquired its
interest by assignment pursuant to paragraph (b) of this Section;
provided
that such Participant (i) agrees to be subject to the provisions of Sections
2.18 and 2.19 as if it were an assignee under paragraph(b) of this Section and
(ii) shall not be entitled to receive any greater payment under Sections 2.18
or 2.19, with respect to any participation, than its participating Lender
would have been entitled to receive, except to the extent that(x) the Borrower
is notified of the participation sold to such Participant and the sale of the
participation to the Participant is made with the Borrower's prior written
consent or (y) such entitlement to receive a greater paymentresults from an
adoption of or any change in any Requirement of Law or in the interpretation
or application thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or
otherGovernmental Authority made subsequent to the Closing Date that occurs
after the Participant acquired the applicable participation. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 10.7(b) asthough it were a Lender,
provided
such Participant shall be subject to Section 10.7(a) as though it were a
Lender. Each Lender that sells a participation shall, acting solely for this
purpose as a
non-fiduciary
agent of the Borrower, maintain a register on which it enters the name and
address of each Participant and the principal amounts (and stated interest) of
each Participant's interest in theLoans or other obligations under the Loan
Documents (the "
Participant Register
");
provided
that no Lender shall have any obligation to disclose all or any portion of the
Participant Register to any Person (including theidentity of any Participant
or any information relating to a Participant's interest in any Commitments,
Loans, Letters of Credit or its other obligations under any Loan Document)
except to the extent that such disclosure is necessary toestablish that such
Commitment, Loan, Letter of Credit or other obligation is in registered form
under
Section 5f.103-1(c)
of the United States Treasury Regulations. The entries in the ParticipantRegiste
r shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to
thecontrary. For the avoidance of doubt, the Administrative Agent (in its
capacity as Administrative Agent) shall have no responsibility for maintaining
a Participant Register.
(d) Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secureobligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank or any other central banking authority, and this Section shall
not apply to any such pledge or assignment of a security interest;
provided
that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee or
Assignee for such Lender as a party hereto. The Borrower, upon receipt of
writtennotice from the relevant Lender, agrees to issue Notes to any Lender
requiring Notes to facilitate transactions of the type described in this
paragraph (d).
(e) [Reserved].
(f) The listof Disqualified Lenders (i) shall be made available to the Lenders
by posting on IntraLinks/IntraAgency or another relevant Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether acommercial, third-party website or whether sponsored by the
Administrative Agent) and (ii) shall be provided to any Lender upon request by
such Lender to the Administrative Agent. A Lender may provide the list of
Disqualified Lenders to anypotential assignee or participant on a confidential
basis in accordance with Section 10.15 hereof for the purpose of verifying
whether such Person is a Disqualified Lender.
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10.7
Adjustments;
Set-off
. (a) Except tothe extent that this Agreement or a court order expressly
provides for payments to be allocated to a particular Lender, if any Lender (a
"
Benefitted Lender
") shall receive any payment of all or part of the Obligations owing to
it(other than in connection with an assignment made pursuant to Section 10.6),
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by
set-off,
pursuant to events orproceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such BenefittedLender shall purchase for cash from the
other Lenders a participating interest in such portion of the Obligations
owing to each such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary tocause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders;
provided
,
however
, that if all or any portion of such excess payment or benefits is thereafter
recovered fromsuch Benefitted Lender, such purchase shall be rescinded, and
the purchase price and benefits returned, to the extent of such recovery, but
without interest;
provided further
, that to the extent prohibited by applicable law as described inthe
definition of "Excluded Swap Obligation," no amounts received from, or
set-off
with respect to, any Guarantor shall be applied to any Excluded Swap
Obligations of such Guarantor.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without notice to the Borrower,any such
notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any Obligations becoming due and payable by the Borrower
(whether at the stated maturity, by acceleration or otherwise), to apply to
the paymentof such Obligations, by setoff or otherwise, any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect,absolute or contingent, matured or unmatured, at
any time held or owing by such Lender, any affiliate thereof or any of their
respective branches or agencies to or for the credit or the account of the
Borrower;
provided
that if any DefaultingLender shall exercise any such right of setoff (i) all
amounts so
set-off
shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of thisAgreement and, pending
such payment, shall be segregated by such Defaulting Lender from its other
funds and deemed held in trust for the benefit of the Administrative Agent,
the Issuing Lender and the Lenders and (ii) the Defaulting Lendershall provide
promptly to the Administrative Agent a statement describing in reasonable
detail the obligations owing to such Defaulting Lender as to which it
exercised such right of
set-off.
Each Lender agreespromptly to notify the Borrower and the Administrative Agent
after any such application made by such Lender,
provided
that the failure to give such notice shall not affect the validity of such
application.
10.8
Counterparts
; Electronic Execution
. (a) This Agreement may be executed by one or more of the parties to this
Agreement onany number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A
set of the copies of this Agreement signed by all the parties shall be lodged
with the Borrower and theAdministrative Agent.
(b) Delivery of an executed counterpart of a signature page of (x) this
Agreement, (y) any other LoanDocument and/or (z) any document, amendment,
approval, consent, information, notice (including, for the avoidance of doubt,
any notice delivered pursuant to Section 10.2), certificate, request,
statement, disclosure or authorizationrelated to this Agreement, any other
Loan Document and/or the transactions contemplated hereby and/or thereby (each
an "
Ancillary Document
") that is an Electronic Signature transmitted by facsimile, emailed pdf. or
any otherelectronic means that reproduces an image of an actual executed
signature page shall be effective as delivery of a manually executed
counterpart of this Agreement, such other Loan Document or such Ancillary
Document, as applicable. The words"execution," "signed," "signature,"
"delivery," and words of like import in or relating to this Agreement, any
other Loan
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Document and/or any Ancillary Document shall be deemed to include Electronic
Signatures, deliveries or the keeping of records in any electronic form
(including deliveries by facsimile, emailedpdf. or any other electronic means
that reproduces an image of an actual executed signature page), each of which
shall be of the same legal effect, validity or enforceability as a manually
executed signature, physical delivery thereof or the use ofa paper-based
recordkeeping system, as the case may be;
provided
that nothing herein shall require the Administrative Agent to accept
Electronic Signatures in any form or format without its prior written consent
and pursuant to proceduresapproved by it;
provided
,
further
, without limiting the foregoing, (i) to the extent the Administrative Agent
has agreed to accept any Electronic Signature, the Administrative Agent and
each of the Lenders shall be entitled torely on such Electronic Signature
purportedly given by or on behalf of the Borrower or any other Loan Party
without further verification thereof and without any obligation to review the
appearance or form of any such Electronic Signature and(ii) upon the request
of the Administrative Agent or any Lender, any Electronic Signature shall be
promptly followed by a manually executed counterpart. Without limiting the
generality of the foregoing, the Borrower and each other Loan Partyhereby (A)
agrees that, for all purposes, including without limitation, in connection
with any workout, restructuring, enforcement of remedies, bankruptcy
proceedings or litigation among the Administrative Agent, the Lenders, the
Borrower andthe other Loan Parties, Electronic Signatures transmitted by
facsimile, emailed pdf. or any other electronic means that reproduces an image
of an actual executed signature page and/or any electronic images of this
Agreement, any other Loan Documentand/or any Ancillary Document shall have the
same legal effect, validity and enforceability as any paper original, (B) the
Administrative Agent and each of the Lenders may, at its option, create one or
more copies of this Agreement, any otherLoan Document and/or any Ancillary
Document in the form of an imaged electronic record in any format, which shall
be deemed created in the ordinary course of such Person's business, and
destroy the original paper document (and all suchelectronic records shall be
considered an original for all purposes and shall have the same legal effect,
validity and enforceability as a paper record), (C) waives any argument,
defense or right to contest the legal effect, validity orenforceability of
this Agreement, any other Loan Document and/or any Ancillary Document based
solely on the lack of paper original copies of this Agreement, such other Loan
Document and/or such Ancillary Document, respectively, including withrespect
to any signature pages thereto and (D) waives any claim against any
Lender-Related Person for any Liabilities arising solely from the
Administrative Agent's and/or any Lender's reliance on or use of Electronic
Signaturesand/or transmissions by facsimile, emailed pdf. or any other
electronic means that reproduces an image of an actual executed signature
page, including any Liabilities arising as a result of the failure of the
Borrower and/or any other Loan Party touse any available security measures in
connection with the execution, delivery or transmission of any Electronic
Signature.
10.9
Severability
. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remainingprovision
s hereof, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
10.10
Integration
. This Agreement and the other Loan Documents represent the entire agreement
of the Borrower, the Administrative Agentand the Lenders with respect to the
subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender
relative to the subject matter hereof not expressly set forth orreferred to
herein or in the other Loan Documents.
10.11
GOVERNING LAW
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THEPARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
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10.12
Submission To Jurisdiction; Waivers
. The Borrower and each Credit Party herebyirrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement andthe other Loan Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to the
exclusive jurisdiction of the courts of the United States for the Southern
District of New York located in the Borough ofManhattan (or in the event such
courts lack subject matter jurisdiction, to the courts of the State of New
York located in the Borough of Manhattan), and appellate courts from any
thereof;
provided
, that nothing contained herein or in anyother Loan Document will prevent any
Lender or the Administrative Agent from bringing any action to enforce any
award or judgment or exercise any right under the Security Documents or
against any Collateral or any other property of any Loan Party inany other
forum in which jurisdiction can be established;
(b) consents that any such action or proceeding may be brought in such
courtsand waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail(or any
substantially similar form of mail), postage prepaid, to the Borrower or the
applicable Credit Party at its address set forth in Section 10.2 or at such
other address of which the applicable party shall have been notified
pursuantthereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law; and
(e) waives, to the maximum extent not prohibited by law, any right it may have
to claim or recover in any legal action or proceedingreferred to in this
Section any indirect, special, exemplary, punitive or consequential damages.
10.13
Acknowledgments
. TheBorrower hereby acknowledges and agrees that (a) no fiduciary, advisory
or agency relationship between the Loan Parties and the Credit Parties is
intended to be or has been created in respect of any of the transactions
contemplated by thisAgreement or the other Loan Documents, irrespective of
whether the Credit Parties have advised or are advising the Loan Parties on
other matters, and the relationship between the Credit Parties, on the one
hand, and the Loan Parties, on the otherhand, in connection herewith and
therewith is solely that of creditor and debtor, (b) the Credit Parties, on
the one hand, and the Loan Parties, on the other hand, have an arm's length
business relationship that does not directly orindirectly give rise to, nor do
the Loan Parties rely on, any fiduciary duty to the Loan Parties or their
affiliates on the part of the Credit Parties, (c) the Loan Parties are capable
of evaluating and understanding, and the Loan Partiesunderstand and accept,
the terms, risks and conditions of the transactions contemplated by this
Agreement and the other Loan Documents, (d) the Loan Parties have been advised
that the Credit Parties are engaged in a broad range of transactionsthat may
involve interests that differ from the Loan Parties' interests and that the
Credit Parties have no obligation to disclose such interests and transactions
to the Loan Parties, (e) the Loan Parties have consulted their own
legal,accounting, regulatory and tax advisors to the extent the Loan Parties
have deemed appropriate in the negotiation, execution and delivery of this
Agreement and the other Loan Documents, (f) each Credit Party has been, is,
and will be actingsolely as a principal and, except as otherwise expressly
agreed in writing by it and the relevant parties, has not been, is not, and
will not be acting as an advisor, agent or fiduciary for the Loan Parties, any
of their affiliates or any otherPerson, (g) none of the Credit Parties has any
obligation to the Loan Parties or their affiliates with respect to the
transactions contemplated by this Agreement or the other Loan Documents except
those obligations expressly set forth herein ortherein or in any other express
writing executed and delivered by such Credit Party and the Loan Parties or
any such affiliate and (h) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of thetransactions contemplated
hereby among the Credit Parties or among the Loan Parties and the Credit
Parties.
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10.14
Releases of Guarantees and Liens
. (a) Upon any sale, transfer or otherDisposition by any Loan Party (other
than any such sale, transfer or other Disposition to another Loan Party) of
any Collateral in a transaction permitted by this Agreement, upon the pledge
by any Loan Party (other than any such pledge in favor ofanother Loan Party)
of any Collateral constituting Receivables Related Assets in connection with a
Permitted A/R Finance Transaction (so long as such pledge is permitted by this
Agreement), upon the effectiveness of any written consent to therelease of the
security interest in any Collateral created under any Security Document
pursuant to Section 10.1 or in accordance with the Intercreditor Agreements,
the security interests in such Collateral created by the Security
Documentsshall be automatically released. In connection with any termination
or release pursuant to this clause (a), the Administrative Agent shall
promptly execute and deliver to the relevant Loan Party, and shall file and
record, at such Loan Party'sexpense, all documents that such Loan Party shall
reasonably request to evidence such release including
UCC-3
amendments or termination statements in relation to any
UCC-1
financing statements then of record, and shall promptly return to the relevant
Loan Party any share certificates (and related powers and proxies),
instruments, chattel paper, negotiable documents oftitle and other Collateral
theretofore delivered to the Administrative Agent, each in the form in which
the same was received, free and clear of all Liens created by and through the
Administrative Agent. In connection with a future Permitted
Non-ABL
Loan or Indebtedness secured by a Permitted
Non-ABL
Lien permitted under this Agreement, the Credit Parties irrevocably authorize
and direct the Administrative Agent,to subordinate any Lien on any
Non-ABL
Priority Collateral granted to or held by the Administrative Agent under any
Loan Document to Permitted
Non-ABL
Liens on
Non-ABL
Priority Collateral.
(b) At such time as the Loans and the other obligations (other thanindemnificati
on or reimbursement obligations under Section 2.18, 2.19(a), 2.19(d) or 2.20
for which the Borrower has not been notified and contingent indemnification
obligations that are expressly stated to survive repayment of the
Facilities)under the Loan Documents shall have been paid in full, no Letters
of Credit shall be outstanding (other than Letters of Credit cash
collateralized or otherwise backstopped in a manner satisfactory to the
applicable Issuing Lender and theAdministrative Agent) and the Commitments
have been terminated, all Collateral shall automatically be released from the
Liens created by the Security Documents, and the Security Documents and all
obligations (other than those expressly stated tosurvive such termination) of
the Administrative Agent and each Loan Party under the Security Documents
shall automatically terminate, all without delivery of any instrument or
performance of any act by any Person. In connection with any terminationor
release pursuant to this clause (b), the Administrative Agent shall promptly
execute and deliver to the relevant Loan Party, and shall file and record, at
such Loan Party's expense, all documents that such Loan Party shall reasonably
requestto evidence such release, including
UCC-3
amendments or termination statements in relation to any
UCC-1
financing statements then of record, and shall promptly return tothe relevant
Loan Party any share certificates (and related powers and proxies),
instruments, chattel paper, negotiable documents and other Collateral
theretofore delivered to the Administrative Agent, each in the form in which
the same wasreceived, free and clear of all Liens created by and through the
Administrative Agent.
Notwithstanding anything to the contrary contained herein or inany other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each
Lender (without requirement of notice to or consent of any Lender except as
expressly required by Section 10.1) to take any action requested by
theBorrower having the effect of releasing any Collateral or guarantee
obligations (i) to the extent necessary to permit consummation of any
transaction not prohibited by any Loan Document or that has been consented to
in accordance withSection 10.1 or (ii) under the circumstances described in
paragraphs (a) or (b) above.
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10.15
Confidentiality
. Each of the Administrative Agent and each Lender agrees tokeep confidential
all
non-public
information provided to it by any Loan Party, the Administrative Agent or any
Lender pursuant to or in connection with this Agreement that is designated by
the provider thereofas confidential; provided that nothing herein shall
prevent the Administrative Agent or any Lender from disclosing any such
information (a) to the Administrative Agent, any other Lender or any affiliate
thereof, (b) subject to an agreementto comply with the provisions of this
Section, to any actual or prospective Transferee or any direct or indirect
counterparty to any Swap Agreement (or any professional advisor to such
counterparty), in each case made expressly for the benefit ofthe Loan Parties,
(c) to its employees, directors, agents, attorneys, accountants and other
professional advisors or those of any of its affiliates, that are advised of
the confidential nature of such information and of this Section 10.15,(d) upon
the request or demand of any Governmental Authority, (e) in response to any
order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (f) if requested or required to
doso in connection with any litigation or similar proceeding, (g) that has
been publicly disclosed other than as a result of a breach of this Section
10.15 or any other applicable confidentiality or
non-disclosure
requirement, (h) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about aLender's investment portfolio in connection with
ratings issued with respect to such Lender, (i) in connection with the
exercise of any remedy hereunder or under any other Loan Document to the
extent relevant to the proceedings pursuant towhich such remedy is being
exercised, (j) to data service providers (including league table providers)
that serve the lending industry to the extent such information is of the type
customarily provided to such providers or (k) if agreed bythe Borrower in its
sole discretion, to any other Person.
Each Lender acknowledges that information furnished to it pursuant to
thisAgreement or the other Loan Documents may include material
non-public
information concerning the Borrower and its Affiliates and their Related
Parties or their respective securities, and confirms that it hasdeveloped
compliance procedures regarding the use of material
non-public
information and that it will handle such material
non-public
information in accordance withthose procedures and applicable law, including
Federal and state securities laws.
All information, including requests for waivers andamendments, furnished by
the Borrower or the Administrative Agent pursuant to, or in the course of
administering, this Agreement or the other Loan Documents will be
syndicate-level information, which may contain material
non-public
information about the Borrower and its Affiliates and their Related Parties or
their respective securities. Accordingly, each Lender represents to the
Borrower and the Administrative Agent that it hasidentified in its
administrative questionnaire a credit contact who may receive information that
may contain material
non-public
information in accordance with its compliance procedures and applicable
law,including Federal and state securities laws.
The Borrower hereby acknowledges that the Administrative Agent will make
available to theLenders materials and/or information provided by or on behalf
of the Loan Parties hereunder (collectively, the "
Borrower Materials
") by posting the Borrower Materials on IntraLinks/IntraAgency or another
similar electronic system(the "
Platform
").
10.16
WAIVERS OF JURY TRIAL
. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERSHEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.17
USA Patriot Act
. Each Lender hereby notifies the Borrower that pursuant to the requirements
of the USA Patriot Act (Title III ofPub. L.
107-56
(signed into law October 26, 2001)) (the "
Patriot Act
"), it is required to obtain, verify and record information that identifies
the Borrower, which information includesthe name and address of the Borrower
and other information that will allow such Lender to identify the Borrower in
accordance with the Patriot Act.
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10.18
Intercreditor Agreement
. Each Lender hereby authorizes and directs theAdministrative Agent (a) to
enter into any Intercreditor Agreement on its behalf, perform such
Intercreditor Agreement on its behalf and take any actions thereunder as
determined by the Administrative Agent to be necessary or advisable toprotect
the interest of the Lenders, and each Lender agrees to be bound by the terms
of such Intercreditor Agreement and (b) to enter into any other intercreditor
agreement reasonably satisfactory to the Administrative Agent on its
behalf,perform such intercreditor agreement on its behalf and take any actions
thereunder as determined by the Administrative Agent to be necessary or
advisable to protect the interests of the Lenders, and each Lender agrees to
be bound by the terms ofsuch intercreditor agreement. Each Lender acknowledges
that such Intercreditor Agreement governs, among other things, Lien priorities
and rights of the Lenders and the secured parties with respect to any Permitted
Non-ABL
Loans or Indebtedness secured by Permitted
Non-ABL
Liens with respect to the Collateral, including the
Non-ABL
PriorityCollateral. With respect to any requirement herein or in any other
Loan Document for any Loan Party to deliver originals of certificated Capital
Stock, instruments, or similar documents constituting Collateral which is also
"Collateral"pursuant to the Permitted
Non-ABL
Loan Documents, such requirements shall be deemed satisfied to the extent the
requirements to deliver the same in accordance with the applicable
Intercreditor Agreement are ineffect and are satisfied by such Loan Party. To
the extent that any covenants, representations or warranties set forth in this
Agreement or any other Loan Document are untrue or incorrect solely as a
result of the delivery to or grant of possessionor control to, the agent or
settlement trust, as applicable, under the Permitted
Non-ABL
Loan Documents in accordance with this Section 10.18, such representation or
warranty shall not be deemed to beuntrue or incorrect for purposes of this
Agreement or such other Loan Document. In the event of any conflict between
this Agreement or any Loan Document with such Intercreditor Agreement, the
Intercreditor Agreement shall govern and control.
10.19
Acknowledgement and Consent to
Bail-In
of Affected Financial Institutions
.Notwithstanding anything to the contrary in any Loan Document or in any other
agreement, arrangement or understanding among any such parties, each party
hereto acknowledges that any liability of any Affected Financial Institution
arising under anyLoan Document may be subject to the Write-Down and Conversion
Powers of the applicable Resolution Authority and agrees and consents to, and
acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable
Resolution Authority to any such liabilities arising hereunderwhich may be
payable to it by any party hereto that is an Affected Financial Institution;
and
(b) the effects of any
Bail-in
Action on any such liability, including, if applicable:
(i) a reduction in fullor in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares orother
instruments of ownership in such Affected Financial Institution, its parent
entity, or a bridge institution that may be issued to it or otherwise
conferred on it, and that such shares or other instruments of ownership will
be accepted by it inlieu of any rights with respect to any such liability
under this Agreement or any other Loan Document; or
(iii) thevariation of the terms of such liability in connection with the
exercise of the Write-Down and Conversion Powers of the applicable Resolution
Authority.
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10.20
Acknowledgement Regarding Any Supported QFCs
. To the extent that the LoanDocuments provide support, through a guarantee or
otherwise, for hedging agreements or any other agreement or instrument that is
a QFC (such support "QFC Credit Support" and each such QFC a "Supported QFC"),
the partiesacknowledge and agree as follows with respect to the resolution
power of the Federal Deposit Insurance Corporation under the Federal Deposit
Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (together withthe regulations promulgated thereunder, the "U.S.
Special Resolution Regimes") in respect of such Supported QFC and QFC Credit
Support (with the provisions below applicable notwithstanding that the Loan
Documents and any Supported QFC mayin fact be stated to be governed by the
laws of the State of New York and/or of the United States or any other state
of the United States):
In the event a Covered Entity that is party to a Supported QFC (each, a "
Covered Party
") becomes subject to a proceedingunder a U.S. Special Resolution Regime, the
transfer of such Supported QFC and the benefit of such QFC Credit Support (and
any interest and obligation in or under such Supported QFC and such QFC Credit
Support, and any rights in property securingsuch Supported QFC or such QFC
Credit Support) from such Covered Party will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if
the Supported QFC and such QFC Credit Support (and any suchinterest,
obligation and rights in property) were governed by the laws of the United
States or a state of the United States. In the event a Covered Party or a BHC
Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S.
SpecialResolution Regime, Default Rights under the Loan Documents that might
otherwise apply to such Supported QFC or any QFC Credit Support that may be
exercised against such Covered Party are permitted to be exercised to no
greater extent than suchDefault Rights could be exercised under the U.S.
Special Resolution Regime if the Supported QFC and the Loan Documents were
governed by the laws of the United States or a state of the United States.
Without limitation of the foregoing, it isunderstood and agreed that rights
and remedies of the parties with respect to a Defaulting Lender shall in no
event affect the rights of any Covered Party with respect to a Supported QFC
or any QFC Credit Support.
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Commitments
Schedule 1.1A to Credit Agreement
Lender Commitment
JPMorgan Chase Bank, N.A. $ 85,000,000
Wells Fargo Bank, N.A. $ 80,000,000
Bank of America, N.A. $ 55,000,000
U.S. Bank National Association $ 45,000,000
Cooperatieve Rabobank U.A., New York Branch $ 40,000,000
TD Bank, N.A. $ 40,000,000
KeyBank, N.A. $ 30,000,000
Total: $ 375,000,000
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Exhibit B
Term Intercreditor Agreement
[See attached]
-------------------------------------------------------------------------------
AMENDED AND RESTATED
ABL/NON-ABL
INTERCREDITORAGREEMENT
Intercreditor Agreement (this "
Agreement
") dated as of May 1, 2024 by and among JPMORGAN CHASE BANK,N.A., as ABL
Representative (in such capacity, with its successors and assigns, and as more
specifically defined below, the "
ABL Representative
") for the ABL Secured Parties (as defined below), AGWEST FARM CREDIT, PCA, as
Non-ABL
Representative (in such capacity, with its successors and assigns, and as more
specifically defined below, the "
Non-ABL
Representative
") for the
Non-ABL
Secured Parties (as defined below), and each of the Loan Parties (as defined
below) party hereto.
WHEREAS, Clearwater Paper Corporation, a Delaware corporation (the "
Borrower
"), the ABL Lenders (as defined below), the ABLRepresentative, and certain
financial institutions and other entities are parties to the ABL Credit
Agreement dated as of July 26, 2019 (as amended through the date hereof, the "
Existing ABL Agreement
"), pursuant to which theABL Lenders have agreed to make loans and extend
other financial accommodations to the Borrower;
WHEREAS, the Borrower, the
Non-ABL
Lenders (as defined below), the
Non-ABL
Representative and certain financial institutions and other entities are
parties to the Amended and Restated Credit Agreementdated as of the date
hereof (the "
Existing
Non-ABL
Credit Agreement
"), pursuant to which the
Non-ABL
Lenders have agreed to make loans to the Borrower;
WHEREAS, the Loan Parties have granted to the ABL Representative security
interests in the ABL Collateral (as defined below) as securityfor payment and
performance of the ABL Obligations (as defined below);
WHEREAS, the Loan Parties have granted to the
Non-ABL
Representative security interests in the
Non-ABL
Collateral (as defined below) as security for payment and performance of the
Non-ABL
Obligations (as defined below);
WHEREAS, the ABL Representative and the
Non-ABL
Representative have entered into that certain Intercreditor Agreement, dated
as of October 27, 2023 (as previously amended, supplemented or otherwise
modified prior to the date hereof, the"
Existing Agreement
"); and
WHEREAS, the parties to the Existing Agreement wish to amend and restate the
ExistingAgreement in connection with the Credit Agreement and the Existing ABL
Agreement.
NOW THEREFORE, in consideration of the foregoing andthe mutual covenants
herein contained and other good and valuable consideration, the existence and
sufficiency of which is expressly recognized by all of the parties hereto, the
parties agree as follows:
SECTION 1
. Definitions; Rules of Construction.
1.1
UCC Definitions
. The following terms which are defined in the Uniform Commercial Code are
used herein as so defined: Accounts,Chattel Paper, Commercial Tort Claims,
Deposit Accounts, Documents, Equipment, General Intangibles, Goods,
Instruments, Inventory, Investment Property, Letter of Credit, Letter of
Credit Rights, Records, Securities Accounts and SupportingObligations.
2
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1.2.
Defined Terms
. The following terms, as used herein, have the following meanings:
"
ABL Agreement
" means the collective reference to (a) the Existing ABL Agreement, (b) any
Additional ABLAgreement and (c) any other credit agreement, loan agreement,
note agreement, promissory note, indenture or other agreement or instrument
evidencing or governing the terms of any indebtedness or other financial
accommodation that has beenincurred to extend, replace, refinance or refund in
whole or in part the indebtedness and other obligations outstanding under the
Existing ABL Agreement (regardless of whether such replacement, refunding or
refinancing is a "workingcapital" facility, asset-based facility or
otherwise), any Additional ABL Agreement or any other agreement or instrument
referred to in this clause (c) unless such agreement or instrument expressly
provides that it is not intended to beand is not an ABL Agreement hereunder (a
"
Replacement ABL Agreement
"). Any reference to the ABL Agreement hereunder shall be deemed a reference
to any ABL Agreement then extant.
"
ABL Collateral
" means all assets, whether now owned or hereafter acquired by any Loan Party,
in which a Lien is granted orpurported to be granted at any time to any ABL
Secured Party as security for any ABL Obligation;
provided
that, notwithstanding anything to the contrary in this Agreement, (a) no ABL
Document shall grant the ABL Creditors a securityinterest in any
fee-owned
or leased real property and (b) the portion of the
Non-ABL
Obligations held by a
Non-ABL
Lender(as defined in the
Non-ABL
Agreement) will be secured by a first priority Lien on all Capital Stock that
the Borrower may now own or hereafter acquire in such
Non-ABL
Lender (as defined in the
Non-ABL
Agreement), and such Capital Stock shall not constitute ABL Collateral.
"
ABL Creditors
" means, collectively, the ABL Lenders, any "Secured Parties" as defined in
any ABL Agreement and anyother holder from time to time of the ABL Obligations.
"
ABL DIP Financing
" has the meaning set forth in
Section
5.2(a)
.
"
ABL Documents
" means the ABL Agreement, each ABL Security Document and eachother "Loan
Document" as defined in the ABL Agreement.
"
ABL Lenders
" shall include any "Lender" (orany term of similar meaning) under any ABL
Agreement.
"
ABL Lien
"
means any Lien created by the ABL SecurityDocuments.
"
ABL Obligations
" means (a) all principal of and interest (including any Post-Petition
Interest) andpremium (if any) on all loans made pursuant to the ABL Agreement
or any ABL DIP Financing by the ABL Creditors, (b) all reimbursement
obligations (if any) and interest thereon (including any Post-Petition
Interest) with respect to any letter ofcredit or similar instruments issued
pursuant to the ABL Agreement, (c) all Swap Obligations, (d) all Banking
Services Obligations, (e) all guarantee obligations, indemnities, fees, costs,
expenses and other amounts payable from timeto time pursuant to the ABL
Documents, in each case whether or not allowed or allowable in an Insolvency
Proceeding and (f) all other "Obligations" as defined in any ABL Agreement. To
the extent any payment with respect to any ABLObligation (whether by or on
behalf of any Loan Party, as Proceeds of security, enforcement of any right of
setoff or otherwise) is declared to be a fraudulent conveyance or a preference
in any respect, set aside or required to be paid to a debtorin possession, any
Non-ABL
Secured Party, receiver or similar Person, then the obligation or part thereof
originally intended to be satisfied shall, for the purposes of this Agreement
and the rights andobligations of the ABL Secured Parties and the
Non-ABL
Secured Parties, be deemed to be reinstated and outstanding as if such payment
had not occurred.
3
-------------------------------------------------------------------------------
"
ABL Obligations Payment Date
" means the first date on which (a) theABL Obligations (other than those that
constitute Unasserted Contingent Obligations) have been indefeasibly paid in
cash in full (or cash collateralized or defeased in accordance with the terms
of the ABL Documents), (b) all commitments to extendcredit under the ABL
Documents have been terminated, (c) there are no outstanding letters of credit
or similar instruments issued under the ABL Documents (other than such as have
been cash collateralized or defeased in accordance with the termsof the ABL
Documents), and (d) so long as the
Non-ABL
Obligations Payment Date shall not have occurred, the ABL Representative has
delivered a written notice to the
Non-ABL
Representative stating that the events described in clauses (a), (b) and (c)
have occurred to the satisfaction of the ABL Secured Parties.
"ABL Priority Collateral"
means all ABL Collateral consisting of the following:
(1) all Accounts;
(2) allInventory;
(3) all Deposit Accounts and lockboxes and all cash, cash equivalents and
other property held in Deposit Accounts andlockboxes (except in each case to
the extent constituting
Non-ABL
Priority Collateral);
(4) allCommercial Tort Claims;
(5) all accessions to, substitutions for and replacements of the foregoing
described in clauses (1)-(3), togetherwith all books and Records, customer
lists, credit files, computer files, programs, printouts and other computer
materials and records related thereto and any General Intangibles, Chattel
Paper, Instruments, Documents and Letter of Credit Rights atany time
evidencing or relating to any of the foregoing; and
(6) to the extent not otherwise included, all Proceeds (including allinsurance
proceeds), Supporting Obligations and products, in each case of any and all of
the foregoing described in clauses (1)-(4) and all collateral security and
guarantees given by any Person with respect to any of the foregoing;
provided
,
however
, that, any Collateral, regardless of type, received in exchange for ABL
Priority Collateral pursuant to an Enforcement Action in accordance with the
terms of the ABL Agreement and this Agreement shall be treated as ABL
PriorityCollateral under this Agreement, the
Non-ABL
Security Documents and the ABL Security Documents;
provided
,
further
, that any Collateral of the type that constitutes ABL Priority Collateral,
ifreceived in exchange for
Non-ABL
Priority Collateral pursuant to an Enforcement Action in accordance with the
terms of the
Non-ABL
Agreement and this Agreement, shall betreated as
Non-ABL
Priority Collateral under this Agreement, the
Non-ABL
Security Documents and the ABL Security Documents;
provided
,
further
, that ABLPriority Collateral shall exclude, however, all
Non-ABL
Priority Collateral (other than
Non-ABL
Priority Collateral which is treated as ABL Priority Collateral as setforth in
the first proviso above), it being understood and agreed that the ABL Secured
Parties remain entitled to the benefit of their second priority Lien on any
such Collateral.
"
ABL Representative
" has the meaning set forth in the introductory paragraph hereof. In the case
of any Replacement ABLAgreement, the ABL Representative shall be the Person
identified as such in such Replacement ABL Agreement.
"
ABL SecuredParties
" means the ABL Representative and all other ABL Creditors.
4
-------------------------------------------------------------------------------
"
ABL Security Documents
" means the "Security Documents" (asdefined in the ABL Agreement), and any
other documents that are designated under the ABL Agreement as "ABL Security
Documents" for purposes of this Agreement, and this Agreement.
"
Access Period
" means, with respect to each parcel or item of
Non-ABL
PriorityCollateral, the period, following the commencement of any Enforcement
Action, which begins on the earlier of (a) the day on which the ABL
Representative provides the
Non-ABL
Representative with the noticeof its election to request access to such parcel
or item of
Non-ABL
Priority Collateral pursuant to
Section
3.4(c)
and (b) the fifth Business Day after the
Non-ABL
Representative provides the ABL Representative with notice that the
Non-ABL
Representative (or its agents) has obtained possession or control of such
parcel or item of
Non-ABL
Priority Collateral and ends on the earliest of (i) the day which is 120 days
after the date (the "
Initial Access Date
") on which the ABL Representative initially obtains theability to take
physical possession of, remove or otherwise control physical access to, or
actually uses, such parcel or item of
Non-ABL
Priority Collateral plus such number of days, if any, after the InitialAccess
Date that it is stayed or otherwise prohibited by law or court order from
exercising remedies with respect to associated ABL Priority Collateral, (ii)
the date on which all or substantially all of the ABL Priority Collateral
associatedwith such parcel or item of
Non-ABL
Priority Collateral is sold, collected or liquidated, (iii) the ABL
Obligations Payment Date and (iv) the date on which the default which resulted
in suchEnforcement Action has been cured or waived in writing.
"
Additional ABL Agreement
" means any agreement approved fordesignation as such by the ABL Representative
and the
Non-ABL
Representative.
"
Additional
Non-ABL
Agreement
" means any agreement approved for designation as such by the ABL
Representative and the
Non-ABL
Representative.
"
Banking Services Obligations
" means the "Banking Services Obligations" (as defined in the ABL Agreement),
as nowand hereafter in effect, or any successor statute.
"
Bankruptcy Code
" means the United States Bankruptcy Code (11 U.S.C.(s)101 et seq.), as
amended from time to time.
"
Borrower
" has the meaning set forth in the first WHEREAS clauseabove.
"
Business Day
" means any day that is not a Saturday, Sunday or other day on which
commercial banks in New YorkCity are authorized or required by law to remain
closed.
"
Collateral
" means, collectively, all ABL Collateral and all
Non-ABL
Collateral.
"
Common Collateral
" means all Collateral that constitutes both ABLCollateral and
Non-ABL
Collateral.
5
-------------------------------------------------------------------------------
"
Comparable Security Document
" means, in relation to any Senior Collateralsubject to any Senior Security
Document, that Junior Security Document that creates a security interest in
the same Senior Collateral (except with respect to
fee-owned
or leased real estate in the case of aComparable Security Document that is an
ABL Document), granted by the same Loan Party, as applicable.
"
CopyrightLicenses
" means any and all agreements granting any right in, to or under Copyrights
(whether a Loan Party is licensee or licensor thereunder).
"
Copyrights
" means, with respect to any Person, all of such Person's right, title, and
interest in and to the following:(a) all copyrights, rights and interests in
copyrights, works protectable by copyright, copyright registrations, and
copyright applications; (b) all renewals of any of the foregoing; (c) all
income, royalties, damages, and paymentsnow or hereafter due and/or payable
under any of the foregoing, including, without limitation, damages or payments
for past or future infringements for any of the foregoing; (d) the right to
sue for past, present, and future infringements ofany of the foregoing; and
(e) all rights corresponding to any of the foregoing throughout the world.
"
ElectronicSignature
" means an electronic sound, symbol, or process attached to, or associated
with, a contract or other record and adopted by a Person with the intent to
sign, authenticate or accept such contract or record.
"
Enforcement Action
" means, with respect to the ABL Obligations or the
Non-ABL
Obligations, the exercise of any rights and remedies with respect to any
Common Collateral securing such obligations or the commencement or prosecution
of enforcement of any of the rights and remedies under, as applicable, the ABL
Documents or the
Non-ABL
Documents, or applicable law, including the exercise of any rights of
set-off
or recoupment, and the exercise of any rights or remedies of a secured
creditor under theUniform Commercial Code of any applicable jurisdiction or
under the Bankruptcy Code.
"
Existing ABL Agreement
" has themeaning set forth in the first WHEREAS clause of this Agreement.
"
Existing
Non-ABL
CreditAgreement
" has the meaning set forth in the second WHEREAS clause of this Agreement.
"
Insolvency Proceeding
"means any proceeding in respect of bankruptcy, insolvency, winding up,
receivership, dissolution or assignment for the benefit of creditors, in each
of the foregoing events whether under the Bankruptcy Code or any similar
federal, state or foreignbankruptcy, insolvency, reorganization, receivership
or similar law.
"
Intellectual Property
" means the collectivereference to all rights, priorities and privileges
relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including, without limitation, the
Copyrights, the Copyright Licenses, thePatents, the Patent Licenses, the
Trademarks and the Trademark Licenses, and all rights to sue at law or in
equity for any infringement or other impairment thereof, including the right
to receive all proceeds and damages therefrom.
6
-------------------------------------------------------------------------------
"
Intercompany Loans
" means any Indebtedness for borrowed money owed by theBorrower or any
Subsidiary of the Borrower to the Borrower or any Subsidiary thereof.
"
Junior Collateral
" shall meanwith respect to any Junior Secured Party, any Collateral on which
it has a Junior Lien.
"
Junior Documents
" shall mean,collectively, with respect to any Junior Obligations, any
provision pertaining to such Junior Obligation in any Loan Document or any
other document, instrument or certificate evidencing or delivered in
connection with such Junior Obligation.
"
Junior Liens
" shall mean (a) with respect to any ABL Priority Collateral, all Liens on
such Collateral securing the
Non-ABL
Obligations and (b) with respect to any
Non-ABL
Priority Collateral, all Liens on such Collateral securing the ABL Obligations.
"
Junior Obligations
" shall mean (a) with respect to any ABL Priority Collateral, all
Non-ABL
Obligations and (b) with respect to any
Non-ABL
Priority Collateral, all ABL Obligations.
"
Junior Representative
" shall mean (a) with respect to any ABL Obligations or any ABL Priority
Collateral, the
Non-ABL
Representative and (b) with respect to any
Non-ABL
Obligations or any
Non-ABL
Priority Collateral, the ABL Representative.
"
Junior Secured Parties
" shall mean (a) with respect to the ABL Priority Collateral, all
Non-ABL
Secured Parties and (b) with respect to the
Non-ABL
Priority Collateral, all ABL Secured Parties.
"
Junior Security Documents
" shall mean with respect to any Junior Secured Party, the Security Documents
that secure theJunior Obligations.
"
Lien
" means, with respect to any asset, (a) any mortgage, deed of trust, deed to
secure debt,lien (statutory or other), pledge, hypothecation, assignment,
deposit arrangement, assignation, debenture, encumbrance, charge or security
interest in, on or of such asset or any preference, priority or other security
agreement or preferentialarrangement of any kind or nature whatsoever, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement (or any financing lease having
substantially the same economic effect as anyof the foregoing) relating to
such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"
Lien Priority
" means with respect to any Lien of the ABL Representative or
Non-ABL
Representative in the Common Collateral, the order of priority of such Lien
specified in
Section
2.1
.
7
-------------------------------------------------------------------------------
"
Loan Documents
" shall mean, collectively, the ABL Documents and the
Non-ABL
Documents.
"
Loan Party
" means the Borrower and each direct or indirectaffiliate or shareholder (or
equivalent) of the Borrower or any of its affiliates that is now or hereafter
becomes a party to any ABL Document or
Non-ABL
Document. All references in this Agreement to any LoanParty shall include such
Loan Party as a
debtor-in-possession
and any receiver or trustee for such Loan Party in any Insolvency Proceeding.
"
Non-ABL
Agreement
" means the collective reference to (a) the Existing
Non-ABL
Credit Agreement, (b) any Additional
Non-ABL
Agreement and (c) any other credit agreement, loan agreement, note agreement,
promissory note, indenture orother agreement or instrument evidencing or
governing the terms of any indebtedness or other financial accommodation that
has been incurred to extend, replace, refinance or refund in whole or in part
the indebtedness and other obligationsoutstanding under the Existing
Non-ABL
Credit Agreement, any Additional
Non-ABL
Agreement or any other agreement or instrument referred to in this clause (c)
unlesssuch agreement or instrument expressly provides that it is not intended
to be and is not a
Non-ABL
Agreement hereunder (a "
Replacement
Non-ABL
Agreement
"). Any reference to the
Non-ABL
Agreement hereunder shall be deemed a reference to any
Non-ABL
Agreement then extant.
"
Non-ABL
Collateral
" means all assets, whether now owned or hereafter acquired by anyLoan Party,
in which a Lien is granted or purported to be granted to any
Non-ABL
Secured Party as security for any
Non-ABL
Obligation.
"
Non-ABL
Creditors
" means the
Non-ABL
Lenders, any "Secured Parties" as defined under any
Non-ABL
Agreement and any other holder from time to time of the
Non-ABL
Obligations.
"
Non-ABL
DIP Financing
" has the meaning set forth in
Section
5.2(b)
.
"
Non-ABL
Documents
" means each
Non-ABL
Agreement, each
Non-ABL
Security Document and each other "Loan Document" as defined in the
Non-ABL
Agreement.
"
Non-ABL
Lenders
" shall include any "Lender" (or any term of similarmeaning) under any
Non-ABL
Agreement.
"
Non-ABL
Lien
"
means any Lien created by the
Non-ABL
Security Documents.
"
Non-ABL
Obligations
" means (a) all principal of and interest (including any Post-Petition
Interest) and premium (if any) on all indebtedness under the
Non-ABL
Agreement or any
Non-ABL
DIP Financing by the
Non-ABL
Creditors, (b) all other "Obligations" as defined in the
Non-ABL
Agreement, and (c) all guarantee obligations, indemnities, fees, costs,
expenses and other amounts payable from time to time pursuant to the
Non-ABL
Documents, in each case whether or not allowed or allowable in an Insolvency
Proceeding. To the extent any payment with respect to any
Non-ABL
Obligation (whether by or on behalf of any Loan Party, as Proceedsof security,
enforcement of any right of setoff or otherwise) is declared to be a
fraudulent conveyance or a preference in any respect, set aside or required to
be paid to a debtor in possession, any ABL Secured Party, receiver or similar
Person,then the obligation or part thereof originally intended to be satisfied
shall, for the purposes of this Agreement and the rights and obligations of
the ABL Secured Parties and the
Non-ABL
Secured Parties, bedeemed to be reinstated and outstanding as if such payment
had not occurred.
8
-------------------------------------------------------------------------------
"
Non-ABL
Obligations Payment Date
"means the first date on which (a) the
Non-ABL
Obligations (other than those that constitute Unasserted Contingent
Obligations) have been indefeasibly paid in cash in full, (b) all commitments
toextend credit under the
Non-ABL
Documents have been terminated, and (c) so long as the ABL Obligations Payment
Date shall not have occurred, the
Non-ABL
Representative has delivered a written notice to the ABL Representative
stating that the events described in clauses (a) and (b) have occurred to the
satisfaction of the
Non-ABL
Secured Parties.
"
Non-ABL
Priority Collateral
" means all Collateral consisting of the following:
(1) all Investment Property (other than Investment Property that is ABL
Priority Collateral);
(2) all Goods other than Inventory;
(3) all Equipment;
(4) allCapital Stock;
(5) all Fixtures;
(6) all Intellectual Property;
(7) all General Intangibles, all Chattel Paper, all Instruments and all
Documents (other than General Intangibles, Chattel Paper, Instrumentsand
Documents that are ABL Priority Collateral);
(8) all Letter of Credit Rights (other than Letter of Credit Rights that are
SupportingObligations of ABL Priority Collateral);
(9) all specifically identifiable and traceable Proceeds of
Non-ABL
Priority Collateral contained in any Deposit Account;
(10) all Intercompany Loans;
(11) to the extent evidencing or governing any of the items referred to in the
preceding
clauses
(1)
through
(10)
all Supporting Obligations;
provided
that to the extent any of the foregoing also relates to ABL Priority
Collateral only that portion related to the items referred to in the preceding
clauses
(1)
through
(10)
shall be included in the
Non-ABL
Priority Collateral;
(12) a collateralassignment of all construction agreements, equipment purchase
agreements, equipment refurbishment agreements and all related warranties,
including those related to the Real Property,
(13) all books and Records relating to the foregoing (including all books,
databases, customer lists, engineer drawings, and Records, whethertangible or
electronic which contain any information relating to any of the foregoing) and
any General Intangibles, Chattel Paper, Instruments, Documents, Letter of
Credit Rights and Commercial Tort Claims at any time evidencing or relating to
anyof the foregoing;
(14) all other Collateral other than ABL Priority Collateral, including, if
applicable all Real Property; and
(15) all Proceeds of any of the foregoing (including all insurance proceeds)
and all collateral security and guarantees given by any Personwith respect to
any of the foregoing;
provided
,
however
,
"Non-ABL
Priority Collateral" shall not include Proceeds from the disposition of any
Non-ABL
Priority Collateral permitted by the
Non-ABL
Agreement to the extent such Proceeds are not required to be applied to the
mandatory prepayment of the
Non-ABL
Obligations pursuant to the
Non-ABL
Documents, unless such Proceeds arise from a disposition of
Non-ABL
Priority Collateralresulting from Enforcement Action taken by the
Non-ABL
Secured Parties permitted by this Agreement or represent value attributable to
Non-ABL
Priority Collateral in anInsolvency Proceeding.
9
-------------------------------------------------------------------------------
"
Non-ABL
Representative
" has themeaning set forth in the introductory paragraph hereof. In the case
of any Replacement
Non-ABL
Agreement, the
Non-ABL
Representative shall be the Person identified assuch in such Replacement
Non-ABL
Agreement.
"Non-ABL
Secured Parties
" means the
Non-ABL
Representative, the
Non-ABL
Creditors and any other holders of the
Non-ABL
Obligations.
"
Non-ABL
Security Documents
" means the "Security Documents" (as defined inthe
Non-ABL
Agreement), and any documents that are designated under the
Non-ABL
Agreement as
"Non-ABL
SecurityDocuments" for purposes of this Agreement, and this Agreement.
"
Patent License
" means all agreements granting anyright in, to, or under Patents (whether any
Loan Party is licensee or licensor thereunder).
"
Patents
" means all UnitedStates and foreign patents and certificates of invention, or
similar industrial property rights, now or hereafter in force, and with
respect to any and all of the foregoing, (i) all applications therefore, (ii)
all reissues, divisions,continuations,
continuations-in-part,
extensions, renewals, and reexaminations thereof, (iii) all rights
corresponding thereto throughout the world, (iv) allinventions and
improvements described therein, (v) all rights to sue for past, present and
future infringements thereof, (vi) all licenses, claims, damages, and proceeds
of suit arising therefrom, and (vii) all payments and royaltiesand rights to
payments and royalties arising out of the sale, lease, license, assignment, or
other disposition thereof.
"
Person
" means any person, individual, sole proprietorship, partnership, joint
venture, corporation, limited liabilitycompany, unincorporated organization,
association, institution, entity, party, including any government and any
political subdivision, agency or instrumentality thereof.
"
Post-Petition Interest
" means any interest or entitlement to fees or expenses or other charges that
accrues after thecommencement of any Insolvency Proceeding (or would accrue
but for the commencement of an Insolvency Proceeding), whether or not allowed
or allowable in any such Insolvency Proceeding.
"
Priority Collateral
" means the ABL Priority Collateral or the
Non-ABL
PriorityCollateral.
"
Proceeds
" means (a) all "proceeds," as defined in Article 9 of the Uniform Commercial
Code,with respect to the Common Collateral, and (b) whatever is recoverable or
recovered when any Common Collateral is sold, exchanged, collected, or
disposed of, whether voluntarily or involuntarily.
"
Real Property
" means any right, title or interest in and to real property, including any
fee interest, leasehold interest,easement, or license and any other right to
use or occupy real property, including any right arising by contract.
"
ReplacementABL Agreement
" has the meaning set forth in the definition of "ABL Agreement."
10
-------------------------------------------------------------------------------
"
Replacement
Non-ABL
Agreement"
hasthe meaning set forth in the definition of
"Non-ABL
Agreement".
"
SecuredObligations
" shall mean the ABL Obligations and the
Non-ABL
Obligations.
"
Secured Parties
" means the ABL Secured Parties and the
Non-ABL
Secured Parties.
"
Security Documents
" means, collectively, the ABL Security Documents and the
Non-ABL
Security Documents.
"
Senior Collateral
" shall mean with respect to any Senior Secured Party, any Collateral on which
ithas a Senior Lien.
"
Senior Documents
" shall mean, collectively, with respect to any Senior Obligation, any
provisionpertaining to such Senior Obligation in any Loan Document or any
other document, instrument or certificate evidencing or delivered in
connection with such Senior Obligation.
"
Senior Liens
" shall mean (a) with respect to the ABL Priority Collateral, all Liens on
such Collateral securing the ABLObligations and (b) with respect to the
Non-ABL
Priority Collateral, all Liens on such Collateral securing the
Non-ABL
Obligations.
"
Senior Obligations
" shall mean (a) with respect to any ABL Priority Collateral, all ABL
Obligations and (b) withrespect to any
Non-ABL
Priority Collateral, all
Non-ABL
Obligations.
"
Senior Obligations Payment Date
" shall mean (a) with respect to ABL Obligations, the ABL Obligations Payment
Date and(b) with respect to any
Non-ABL
Obligations, the
Non-ABL
Obligations Payment Date.
"
Senior Representative
" shall mean (a) with respect to any ABL Priority Collateral, the ABL
Representative and(b) with respect to any
Non-ABL
Priority Collateral, the
Non-ABL
Representative.
"
Senior Secured Parties
" shall mean (a) with respect to the ABL Priority Collateral, all ABL Secured
Parties and(b) with respect to the
Non-ABL
Priority Collateral, all
Non-ABL
Secured Parties.
"
Senior Security Documents
" shall mean with respect to any Senior Secured Party, the Security Documents
that secure theSenior Obligations.
"
Standstill Period
" has the meaning set forth in
Section
3.2
.
11
-------------------------------------------------------------------------------
"
Swap Obligations
" means, with respect to any Loan Party, any obligationsof such Loan Party
owed to any ABL Creditor (or any of its affiliates) in respect of (including
any obligations in respect of any cancellations, buy backs, reversals,
terminations or assignments of) any swap, forward, future or derivativetransacti
on or option or similar agreement involving, or settled by reference to, one
or more rates, currencies, commodities, equity or debt instruments or
securities, or economic, financial or pricing indices or measures of economic,
financial orpricing risk or value or any similar transaction or any
combination of these transactions;
provided
that no obligations in respect of any phantom stock or similar plan providing
for payments only on account of services provided by current orformer
directors, officers, employees or consultants of any Loan Party shall be "Swap
Obligations";
provided
,
further
, that such obligations shall only constitute "Swap Obligations" to the extent
that at or prior tothe time that any transaction relating to such obligation
is executed (or, if later, the date of the applicable ABL Agreement) the
Borrower (other than for transactions with JPMorgan Chase Bank, N.A. and its
affiliates) and the ABL Creditor partythereto or its affiliate (other than
JPMorgan Chase Bank, N.A. and its affiliates) shall have delivered written
notice to the ABL Representative that such a transaction has been entered into
and that it constitutes a secured Swap Obligation entitledto the benefits of
the ABL Security Documents.
"
Trade Secret Licenses
" means any and all agreements granting any rightin or to Trade Secrets
(whether a Loan Party is licensee or licensor thereunder).
"
Trade Secrets
" means all tradesecrets and all other confidential or proprietary information
and
know-how,
whether or not reduced to a writing or other tangible form, now or hereafter
in force, owned or used in, or contemplated at any timefor use in, the
business of any Loan Party, including with respect to any and all of the
foregoing: (i) all documents and things embodying, incorporating, or referring
in any way thereto, (ii) all rights to sue for past, present and futureinfringem
ent thereof, (iii) all licenses, claims, damages, and proceeds of suit arising
therefrom, and (iv) all payments and royalties and rights to payments and
royalties arising out of the sale, lease, license, assignment, or
otherdispositions thereof.
"
Trademark Licenses
" means any and all agreements granting any right in or to Trademarks
(whethera Loan Party is licensee or licensor thereunder).
"
Trademarks
" means all United States, state and foreign trademarks,service marks,
certification marks, collective marks, trade names, corporate names, d/b/as,
business names, fictitious business names, Internet domain names, trade
styles, logos, other source or business identifiers, designs and general
intangiblesof a like nature, rights of publicity and privacy pertaining to the
names, likeness, signature and biographical data of natural persons, now or
hereafter in force, and, with respect to any and all of the foregoing: (i) all
registrations andapplications therefor, (ii) the goodwill of the business
symbolized thereby, (iii) all rights corresponding thereto throughout the
world, (iv) all rights to sue for past, present and future infringement or
dilution thereof or for anyinjury to goodwill, (v) all licenses, claims,
damages, and proceeds of suit arising therefrom, and (vi) all payments and
royalties and rights to payments and royalties arising out of the sale, lease,
license assignment or other dispositionthereof.
"
Unasserted Contingent Obligations
" shall mean, at any time, ABL Obligations or
Non-ABL
Obligations, as applicable, for taxes, costs, indemnifications, reimbursements,
damages and other liabilities (excluding (a) the principal of, and interest
and premium (if any) on, and fees andexpenses relating to, any ABL Obligation
or
Non-ABL
Obligation, as applicable, and (b) with respect to ABL Obligations contingent
reimbursement obligations in respect of amounts that may be drawn
underoutstanding letters of credit) in respect of which no assertion of
liability (whether oral or written) and no claim or demand for payment
(whether oral or written) has been made (and, in the case of ABL Obligations or
Non-ABL
Obligations, as applicable, for indemnification, no notice for indemnification
has been issued by the indemnitee) at such time.
12
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"
Uniform Commercial Code
" shall mean the Uniform Commercial Code as ineffect from time to time in the
applicable jurisdiction.
1.3
Rules of Construction
. The definitions of terms herein shall applyequally to the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and"including" shall be deemed to be followed
by the phrase "without limitation". The word "will" shall be construed to have
the same meaning and effect as the word "shall". Unless the context requires
otherwise(a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subjectto any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person's successors and assigns, (c) the
words "herein","hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits
andSchedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to refer
toany and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION 2.
LienPriority
.
2.1
Lien Subordination
. Notwithstanding the date, manner or order of grant, attachment or perfection
of any JuniorLien in respect of any Collateral or of any Senior Lien in
respect of any Collateral and notwithstanding any provision of the UCC, any
applicable law, any Security Document, any alleged or actual defect or
deficiency in any of the foregoing or anyother circumstance whatsoever, the
Junior Representative, on behalf of each Junior Secured Party, in respect of
such Collateral hereby agrees that:
(a) any Senior Lien in respect of such Collateral, regardless of how acquired,
whether by grant, statute, operation of law,subrogation or otherwise, shall be
and shall remain senior and prior to any Junior Lien in respect of such
Collateral (whether or not such Senior Lien is subordinated to any Lien
securing any other obligation); and
(b) any Junior Lien in respect of such Collateral, regardless of how acquired,
whether by grant, statute, operation of law,subrogation or otherwise, shall be
junior and subordinate in all respects to any Senior Lien in respect of such
Collateral.
2.2
Prohibition on Contesting Liens
. In respect of any Collateral, the Junior Representative, on behalf of each
Junior Secured Party, in respect of such Collateral agrees that it shall not,
and hereby waives any right to:
(a) contest, or support any other Person in contesting, in any proceeding
(including any Insolvency Proceeding), the priority,validity or enforceability
of any Senior Lien on such Collateral; or
(b) demand, request, plead or otherwise assert orclaim the benefit of any
marshalling, appraisal, valuation or similar right which it may have in
respect of such Collateral or the Senior Liens on such Collateral, except to
the extent that such rights are expressly granted in this Agreement.
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2.3
Nature of Obligations
. The
Non-ABL
Representative on behalf of itself and the other
Non-ABL
Secured Parties acknowledges that a portion of the ABL Obligations represents
debt that is revolving in nature and that the amount thereof that may
beoutstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed, and that the terms of the ABL Obligations may be
modified, extended or amended from time to time, and that the aggregate amount
of the ABLObligations may be increased, replaced, refinanced, reduced,
modified, extended or amended, in each event, without notice to or consent by
the
Non-ABL
Secured Parties and without affecting the provisionshereof. The ABL
Representative on behalf of itself and the other ABL Secured Parties
acknowledges that a portion of the
Non-ABL
Obligations represents debt that is revolving in nature and that the
amountthereof that may be outstanding at any time or from time to time may be
increased or reduced and subsequently reborrowed, and that the
Non-ABL
Obligations may be increased, replaced, refinanced, reduced,modified, extended
or amended, in each event, without notice to or consent by the ABL Secured
Parties and without affecting the provisions hereof. The Lien Priorities
provided in
Section
2.1
shall not be altered orotherwise affected by any such amendment, modification,
supplement, extension, repayment, reborrowing, increase, replacement, renewal,
restatement or refinancing of either the ABL Obligations or the
Non-ABL
Obligations, or any portion thereof.
2.4
No New Liens
. (a) Until the ABL Obligations Payment Date, no
Non-ABL
Secured Party shall acquire or hold any Lien on any assets of any Loan Party
securing any
Non-ABL
Obligation (other than, if applicable, Liens on Real Property) whichassets are
not also subject to the Lien of the ABL Representative under the ABL
Documents, subject to the Lien Priority set forth herein. If any
Non-ABL
Secured Party shall (nonetheless and in breach hereof)acquire or hold any Lien
on any assets of any Loan Party securing any
Non-ABL
Obligation which assets are not also subject to the Lien of the ABL
Representative under the ABL Documents, subject to the LienPriority set forth
herein, then the
Non-ABL
Representative (or the relevant
Non-ABL
Secured Party) shall, without the need for any further consent of any other
Non-ABL
Secured Party and notwithstanding anything to the contrary in any other
Non-ABL
Document, be deemed to also hold and have held such lien for the benefit of
the ABLRepresentative as security for the ABL Obligations (subject to the Lien
Priority and other terms hereof) and shall promptly notify the ABL
Representative in writing of the existence of such Lien.
(b) Until the
Non-ABL
Obligations Payment Date, no ABL Secured Party shall acquire or hold any Lien
onany assets of any Loan Party securing any ABL Obligation (other than cash
collateral accounts for letters of credit issued under the ABL Agreement)
which assets are not also subject to the Lien of the
Non-ABL
Representative under the
Non-ABL
Documents, subject to the Lien Priority set forth herein. If any ABL Secured
Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any
assets of any LoanParty securing any ABL Obligation which assets are not also
subject to the Lien of the
Non-ABL
Representative under the
Non-ABL
Documents, subject to the Lien Priorityset forth herein, then the ABL
Representative (or the relevant ABL Secured Party) shall, without the need for
any further consent of any other ABL Secured Party and notwithstanding
anything to the contrary in any other ABL Document, be deemed toalso hold and
have held such lien for the benefit of the
Non-ABL
Representative as security for the
Non-ABL
Obligations (subject to the Lien Priority and other termshereof) and shall
promptly notify the
Non-ABL
Representative in writing of the existence of such Lien.
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2.5
Separate Grants of Security and Separate Classification
. Each Secured Partyacknowledges and agrees that as between the holders of the
ABL Obligations, on the one hand, and the holders of the
Non-ABL
Obligations, on the other hand, (i) the grants of Liens pursuant to the
ABLSecurity Documents and the
Non-ABL
Security Documents constitute two separate and distinct grants of Liens and
(ii) because of, among other things, their differing rights in the Common
Collateral, the
Non-ABL
Obligations are fundamentally different from the ABL Obligations and should be
separately classified in any plan of reorganization proposed or adopted in an
Insolvency Proceeding. To further effectuate theintent of the parties as
provided in the immediately preceding sentence, if it is held that the claims
of the ABL Secured Parties and the
Non-ABL
Secured Parties in respect of the Common Collateral constituteclaims in the
same class (rather than separate classes of senior and junior secured claims),
then the ABL Secured Parties and the
Non-ABL
Secured Parties hereby acknowledge and agree that all distributionsshall be
made as if there were separate classes of ABL Obligation claims and
Non-ABL
Obligation claims against the Loan Parties (with the effect being that, to the
extent that the aggregate value of the ABLPriority Collateral or
Non-ABL
Priority Collateral is sufficient (for this purpose ignoring all claims held
by the other Secured Parties), the ABL Secured Parties or the
Non-ABL
Secured Parties, respectively, shall be entitled to receive, in addition to
amounts distributed to them in respect of principal,
pre-petition
interest and otherclaims, all amounts owing in respect of Post-Petition
Interest that is available from each pool of Priority Collateral for each of
the ABL Secured Parties and the
Non-ABL
Secured Parties, respectively, beforeany distribution is made in respect of
the claims held by the other Secured Parties, with the other Secured Parties
hereby acknowledging and agreeing to turn over to the respective other Secured
Parties amounts otherwise received or receivable bythem to the extent
necessary to effectuate the intent of this sentence, even if such turnover has
the effect of reducing the aggregate recoveries.
2.6
Agreements Regarding Actions to Perfect Liens
. (a) [Reserved].
(b) Each of the ABL Representative and the
Non-ABL
Representative hereby acknowledges that, to theextent that it holds, or a
third party holds on its behalf, physical possession of or "control" (as
defined in the Uniform Commercial Code) over Common Collateral pursuant to the
ABL Security Documents or the
Non-ABL
Security Documents, as applicable, such possession or control is also for the
benefit of the
Non-ABL
Representative and the other
Non-ABL
Secured Parties or the ABL Representative and the other ABL Secured Parties,
as applicable, solely to the extent required to perfect their security
interest in such Common Collateral. Each of the ABLRepresentative and the
Non-ABL
Representative hereby acknowledges that to the extent that the ABL
Representative has filed a financing statement with respect to any Commercial
Tort Claim that constitutesCommon Collateral, such filing is also for the
benefit of the
Non-ABL
Representative and the other
Non-ABL
Secured Parties, solely to the extent required to perfecttheir security
interest in such Common Collateral. Nothing in the preceding sentences of this
Section 2.6(b) shall be construed to impose any duty on the ABL Representative
or the
Non-ABL
Representative(or any third party acting on any such Person's behalf) with
respect to such Common Collateral or provide the
Non-ABL
Representative, any other
Non-ABL
SecuredParty, the ABL Representative or any other ABL Secured Party, as
applicable, with any rights with respect to such Common Collateral beyond
those specified in this Agreement, the ABL Security Documents and the
Non-ABL
Security Documents, as applicable,
provided
that subsequent to the occurrence of the ABL Obligations Payment Date (so long
as the
Non-ABL
ObligationsPayment Date shall not have occurred), the ABL Representative shall
(i) deliver to the
Non-ABL
Representative, at the Loan Parties' sole cost and expense, the Common
Collateral in its possession orcontrol together with any necessary
endorsements to the extent required by the
Non-ABL
Documents or (ii) direct and deliver such Common Collateral as a court of
competent jurisdiction otherwise directs;
provided
,
further
, that subsequent to the occurrence of the
Non-ABL
Obligations Payment Date (so long as the ABL Obligations Payment Date shall
not have occurred), the
Non-ABL
Representative shall (i) deliver to the ABL Loan Representative, at the Loan
Parties' sole cost and expense, the Common Collateral in its possession or
control together with any necessaryendorsements to the extent required by the
ABL Documents or (ii) direct and deliver such Common Collateral as a court of
competent jurisdiction otherwise directs. The provisions of this Agreement are
intended solely to govern the respectiveLien priorities as
15
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between the ABL Secured Parties and the
Non-ABL
Secured Parties and shall not impose on the ABL Secured Parties or the
Non-ABL
Secured Parties any obligations in respect of the disposition of any Common
Collateral (or any proceeds thereof) that would conflict with prior perfected
Liens or any claims thereon in favor of anyother Person that is not a Secured
Party.
SECTION 3
. Enforcement Rights.
3.1
Exclusive Enforcement
. Until the Senior Obligations Payment Date has occurred, whether or not an
Insolvency Proceeding has beencommenced by or against any Loan Party, the
Senior Secured Parties shall have the exclusive right to take and continue any
Enforcement Action (including the right to credit bid their debt) with respect
to the Senior Collateral, without anyconsultation with or consent of any
Junior Secured Party, but subject to the proviso set forth in
Section
5.1
. Upon the occurrence and during the continuance of a default or an event of
default under the Senior Documents,the Senior Representative and the other
Senior Secured Parties may take and continue any Enforcement Action with
respect to the Senior Obligations and the Senior Collateral in such order and
manner as they may determine in their sole discretion inaccordance with the
terms and conditions of the Senior Documents.
3.2
Standstill and Waivers
. The Junior Representative, on behalfof itself and the other Junior Secured
Parties, agrees that, until the Senior Obligations Payment Date has occurred,
but subject to the proviso set forth in
Section
5.1
:
(i) they will not take or cause to be taken any action, the purpose or effect
of which is to make any Lien on any SeniorCollateral that secures any Junior
Obligation pari passu with or senior to, or to give any Junior Secured Party
any preference or priority relative to, the Liens on the Senior Collateral
securing the Senior Obligations;
(ii) they will not contest, oppose, object to, interfere with, hinder or
delay, in any manner, whether by judicial proceedings(including the filing of
an Insolvency Proceeding) or otherwise, any foreclosure, sale, lease,
exchange, transfer or other disposition of the Senior Collateral by any Senior
Secured Party or any other Enforcement Action taken (or any forbearancefrom
taking any Enforcement Action) in respect of the Senior Collateral by or on
behalf of any Senior Secured Party;
(iii)they have no right to (x) direct the Senior Representative or any other
Senior Secured Party to exercise any right, remedy or power with respect to
the Senior Collateral or pursuant to the Senior Security Documents in respect
of the SeniorCollateral or (y) consent or object to the exercise by the Senior
Representative or any other Senior Secured Party of any right, remedy or power
with respect to the Senior Collateral or pursuant to the Senior Security
Documents with respect tothe Senior Collateral or to the timing or manner in
which any such right is exercised or not exercised (or, to the extent they may
have any such right described in this clause (iii), whether as a junior lien
creditor in respect of the SeniorCollateral or otherwise, they hereby
irrevocably waive such right);
(iv) they will not institute any suit or otherproceeding or assert in any
suit, Insolvency Proceeding or other proceeding any claim against any Senior
Secured Party seeking damages from or other relief by way of specific
performance, instructions or otherwise, with respect to, and no SeniorSecured
Party shall be liable for, any action taken or omitted to be taken by any
Senior Secured Party with respect to the Senior Collateral or pursuant to the
Senior Documents in respect of the Senior Collateral;
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(v) they will not commence judicial or nonjudicial foreclosure proceedingswith
respect to, seek to have a trustee, receiver, liquidator or similar official
appointed for or over, attempt any action to take possession of any Senior
Collateral, exercise any right, remedy or power with respect to, or otherwise
take anyaction to enforce their interest in or realize upon, the Senior
Collateral; and
(vi) they will not seek, and hereby waiveany right, to have the Senior
Collateral or any part thereof marshaled upon any foreclosure or other
disposition of the Senior Collateral;
provided
that, notwithstanding the foregoing, any Junior Secured Party may exercise its
rights andremedies in respect of the Senior Collateral under, and to the
extent provided for in, the Junior Security Documents or applicable law after
the passage of a period of 180 days (the "
Standstill Period
") from the date of delivery ofa notice in writing by the Junior Representative
to the Senior Representative of its intention to exercise such rights and
remedies, which notice may only be delivered following the occurrence of and
during the continuation of an "Event ofDefault" under and as defined in the
Junior Loan Agreement;
provided
,
further
, however, that, notwithstanding the foregoing, in no event shall any Junior
Secured Party exercise or continue to exercise any such rights or remediesif,
notwithstanding the expiration of the Standstill Period, (i) any Senior
Secured Party shall have commenced and be diligently pursuing the exercise of
any of its rights and remedies with respect to all or any material portion of
the SeniorCollateral (prompt notice of such exercise to be given to the Junior
Priority Representative) or (ii) an Insolvency Proceeding in respect of any
Loan Party shall have been commenced; and
provided
,
further
, that in any InsolvencyProceeding commenced by or against any Loan Party, the
Junior Priority Representative and the other Junior Priority Secured Parties
may take any action expressly permitted by Section 5.
3.3
Judgment Creditors
. In the event that any
Non-ABL
Secured Party becomes a judgment liencreditor in respect of Common Collateral
as a result of its enforcement of its rights as an unsecured creditor, such
judgment lien shall be subject to the terms of this Agreement for all purposes
(including in relation to the ABL Liens and the ABLObligations) to the same
extent as all other Liens securing the
Non-ABL
Obligations are subject to the terms of this Agreement. In the event that any
ABL Secured Party becomes a judgment lien creditor inrespect of Common
Collateral as a result of its enforcement of its rights as an unsecured
creditor, such judgment lien shall be subject to the terms of this Agreement
for all purposes (including in relation to the
Non-ABL
Liens and the
Non-ABL
Obligations) to the same extent as all other Liens securing the ABL
Obligations are subject to the terms of this Agreement.
3.4
Cooperation; Sharing of Information and Access
. (a) The
Non-ABL
Representative, onbehalf of itself and the other
Non-ABL
Secured Parties, agrees that each of them shall take such actions as the ABL
Representative shall request in connection with the exercise by the ABL
Secured Parties oftheir rights set forth herein in respect of the ABL Priority
Collateral. The ABL Representative, on behalf of itself and the other ABL
Secured Parties, agrees that each of them shall take such actions as the
Non-ABL
Representative shall request in connection with the exercise by the
Non-ABL
Secured Parties of their rights set forth herein in respect of the
Non-ABL
Priority Collateral.
(b) In the event that the ABL Representative shall, in the exercise of
itsrights under the ABL Security Documents or otherwise, receive possession or
control of any books and Records of any Loan Party which contain information
identifying or pertaining to the
Non-ABL
PriorityCollateral, the ABL Representative shall promptly notify the
Non-ABL
Representative of such fact and, upon request from the
Non-ABL
Representative and as promptly aspracticable thereafter, either make available
to the
Non-ABL
Representative such books and Records for inspection and duplication or
provide to the
Non-ABL
Representative copies thereof. In the event that the
Non-ABL
Representative shall, in the exercise of its
17
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rights under the
Non-ABL
Security Documents or otherwise, receive possession or control of any books
and Records of any Loan Party which containinformation identifying or
pertaining to any of the ABL Priority Collateral, the
Non-ABL
Representative shall promptly notify the ABL Representative of such fact and,
upon request from the ABL Representativeand as promptly as practicable
thereafter, either make available to the ABL Representative such books and
Records for inspection and duplication or provide the ABL Representative
copies thereof. The
Non-ABL
Representative hereby irrevocably grants the ABL Representative a
non-exclusive
worldwide license or right to use, to the maximum extent permitted by
applicable law and to the extent of the
Non-ABL
Representative's interest therein, exercisable without payment of royalty or
other compensation, to use any of the Intellectual Property now or hereafter
owned by, licensed to, or otherwise used by theLoan Parties in order for ABL
Representative and ABL Secured Parties to purchase, use, market, repossess,
possess, store, assemble, manufacture, process, sell, transfer, distribute or
otherwise dispose of any asset included in the ABL PriorityCollateral in
connection with the liquidation, disposition or realization upon the ABL
Priority Collateral in accordance with the terms and conditions of the ABL
Security Documents and the other ABL Documents. The
Non-ABL
Representative agrees that any sale, transfer or other disposition of any of
the Loan Parties' Intellectual Property (whether by foreclosure or otherwise)
will be subject to the ABLRepresentative's rights as set forth in this
Section
3.4
.
(c) If the
Non-ABL
Representative, or any agent or representative of the
Non-ABL
Representative, or any receiver, shall, after the commencement of any
Enforcement Action, obtainpossession or physical control of any of the
Non-ABL
Priority Collateral, the
Non-ABL
Representative shall promptly notify the ABL Representative in writing of
thatfact, and the ABL Representative shall, within ten Business Days
thereafter, notify the
Non-ABL
Representative in writing as to whether the ABL Representative desires to
exercise access rights under thisAgreement. In addition, if the ABL
Representative, or any agent or representative of the ABL Representative, or
any receiver, shall obtain possession or physical control of any of the
Non-ABL
PriorityCollateral in connection with an Enforcement Action, then the ABL
Representative shall promptly notify the
Non-ABL
Representative that the ABL Representative is exercising its access rights
under thisAgreement and its rights under
Section
3.4
under either circumstance. Upon delivery of such notice by the ABL
Representative to the
Non-ABL
Representative, the
Non-ABL
Representative and the ABL Representative shall confer in good faith to
coordinate with respect to the ABL Representative's exercise of such access
rights, with such access rights to apply to any parcelor item of
Non-ABL
Priority Collateral access to which is reasonably necessary to enable the ABL
Representative during normal business hours to convert ABL Priority Collateral
consisting of raw materials and
work-in-process
into saleable finished goods and/or to transport such ABL Priority Collateral
to a point where such conversion can occur, to otherwise prepare ABL
PriorityCollateral for sale and/or to arrange or effect the sale of ABL
Priority Collateral, all in accordance with the manner in which such matters
are completed in the ordinary course of business. Consistent with the
definition of "
AccessPeriod
," access rights will apply to differing parcels or items of
Non-ABL
Priority Collateral at differing times, in which case, a differing Access
Period will apply to each such parcel or items.During any pertinent Access
Period, the ABL Representative and its agents, representatives and designees
shall have an irrevocable,
non-exclusive
right to have access to, and a rent-free right to use, therelevant parcel or
item of
Non-ABL
Priority Collateral for the purposes described above. The ABL Representative
shall take proper and reasonable care under the circumstances of any
Non-ABL
Priority Collateral that is used by the ABL Representative during the Access
Period and repair and replace any damage (ordinary
wear-and-tear
excepted) caused by the ABL Representative or its agents, representatives or
designees and the ABL Representative shall comply with all applicable laws
inall material respects in connection with its use or occupancy or possession
of the ABL Priority Collateral. The ABL Representative shall indemnify and
hold harmless the
Non-ABL
Representative and the
Non-ABL
Creditors for any injury or damage to Persons or property (ordinary
wear-and-tear
excepted) caused by the acts or omissions ofPersons under its control;
18
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provided
,
however
, that the ABL Representative and the ABL Creditors will not be liable for any
diminution in the value of
Non-ABL
PriorityCollateral caused by the absence of the ABL Priority Collateral
therefrom. The ABL Representative and the
Non-ABL
Representative shall cooperate and use reasonable efforts to ensure that their
activitiesduring the Access Period as described above do not interfere
materially with the activities of the other as described above, including the
right of the
Non-ABL
Representative to show the
Non-ABL
Priority Collateral to prospective purchasers and to ready the
Non-ABL
Priority Collateral for sale. Consistent with the definition of the term "
AccessPeriod
," if any order or injunction is issued or stay is granted or is otherwise
effective by operation of law that prohibits the ABL Representative from
exercising any of its rights hereunder, then the Access Period granted to the
ABLRepresentative under this
Section
3.4
shall be stayed during the period of such prohibition and shall continue
thereafter for the number of days remaining as required under this
Section
3.4
. The
Non-ABL
Representative shall not foreclose or otherwise sell, assign, remove, dispose
of or transfer any of the
Non-ABL
Priority Collateral during the Access Period withrespect to such Collateral if
such Collateral is reasonably necessary to enable the ABL Representative to
convert, transport or arrange to sell the ABL Priority Collateral as described
above, unless such foreclosure, sale, assignment, removal,disposition or other
transfer is subject to the ABL Representative's right of access pursuant to
the terms of this Agreement (including the Access Period afforded to the ABL
Representative hereunder).
3.5
No Additional Rights For the Loan Parties Hereunder
. Except as provided in
Section
3.6
hereof, if any ABLSecured Party or
Non-ABL
Secured Party shall enforce its rights or remedies in violation of the terms
of this Agreement, no Loan Party shall be entitled to use such violation as a
defense to any action by anyABL Secured Party or
Non-ABL
Secured Party, nor to assert such violation as a counterclaim or basis for set
off or recoupment against any ABL Secured Party or
Non-ABL
Secured Party.
3.6
Actions Upon Breach
. (a) If any ABL Secured Party or
Non-ABL
Secured Party, contrary to this Agreement, commences or participates in any
action or proceeding against any Loan Party or the Common Collateral, such
Loan Party, with the prior written consent of the ABL Representative or the
Non-ABL
Representative, as applicable, may interpose as a defense or dilatory plea the
making of this Agreement, and any ABL Secured Party or
Non-ABL
Secured Party, asapplicable, may intervene and interpose such defense or plea
in its or their name or in the name of such Loan Party.
(b) Should any ABLSecured Party or
Non-ABL
Secured Party, contrary to this Agreement, in any way take, attempt to or
threaten to take any action with respect to the Common Collateral (including
any attempt to realize upon orenforce any remedy with respect to this
Agreement), or fail to take any action required by this Agreement, any ABL
Secured Party or
Non-ABL
Secured Party (in its own name or in the name of the relevant LoanParty), as
applicable, or the relevant Loan Party, may obtain relief against such ABL
Secured Party or
Non-ABL
Secured Party, as applicable, by injunction, specific performance and/or other
appropriateequitable relief, it being understood and agreed by each of the ABL
Representative on behalf of each ABL Secured Party and the
Non-ABL
Representative on behalf of each
Non-ABL
Secured Party that (i) the ABL Secured Parties' or
Non-ABL
Secured Parties', as applicable, damages from its actions may at that time be
difficultto ascertain and may be irreparable, and (ii) each
Non-ABL
Secured Party or ABL Secured Party, as applicable, waives any defense that the
Loan Parties and/or the
Non-ABL
Secured Parties and/or ABL Secured Parties, as applicable, cannot demonstrate
damage and/or be made whole by the awarding of damages.
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SECTION 4
. Application of Proceeds of Senior Collateral; Dispositions and Releases of
Lien;Notices and Insurance.
4.1
Application of Proceeds
.
(a)
Application of Proceeds of Senior Collateral
. The Senior Representative and the Junior Representative hereby agree that
all SeniorCollateral, and all Proceeds thereof, received by either of them in
connection with the collection, sale or disposition of Senior Collateral shall
be applied,
first
, to the payment of costs and expenses (including reasonable attorneys' fees
and expenses and court costs) ofthe Senior Representative in connection with
such Enforcement Action,
second
, to the payment of the SeniorObligations in accordance with the Senior
Documents until the Senior Obligations Payment Date,
third
, to thepayment of the Junior Obligations in accordance with the terms
thereof, and
fourth
, the balance, if any, to theLoan Parties or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct.
(b)
Limited Obligation or Liability
. In exercising remedies, whether as a secured creditor or otherwise, the
Senior Representative shall have no obligation or liability to the Junior
Representative or to any Junior Secured Party, regarding theadequacy of any
Proceeds or for any action or omission, save and except solely for an action
or omission that breaches the express obligations undertaken by each party
under the terms of this Agreement.
(c)
Segregation of Collateral
. Until the occurrence of the Senior Obligations Payment Date, any Senior
Collateral that may be receivedby any Junior Secured Party in violation of
this Agreement shall be segregated and held in trust and promptly paid over to
the Senior Representative, for the benefit of the Senior Secured Parties, in
the same form as received, with any necessaryendorsements, and each Junior
Secured Party hereby authorizes the Senior Representative to make any such
endorsements as agent for the Junior Representative (which authorization,
being coupled with an interest, is irrevocable).
4.2
Releases of Liens
. Upon any release, sale or disposition of Senior Collateral permitted
pursuant to the terms of the SeniorDocuments that results in the release of
the Senior Lien on any Senior Collateral (including any sale or other
disposition pursuant to any Enforcement Action) (other than release of the
Senior Lien due to the occurrence of the Senior ObligationsPayment Date), the
Junior Lien on such Senior Collateral (excluding any portion of the proceeds
of such Senior Collateral remaining after the Senior Obligations Payment Date
occurs) shall be automatically and unconditionally released with no
furtherconsent or action of any Person. The Junior Representative shall
promptly execute and deliver such release documents and instruments and shall
take such further actions as the Senior Representative shall request to
evidence any release of the JuniorLien described in this
Section
4.2
. The Junior Representative hereby appoints the Senior Representative and any
officer or duly authorized person of the Senior Representative, with full
power of substitution, as its trueand lawful
attorney-in-fact
with full irrevocable power of attorney in the place and stead of the Junior
Representative and in the name of the Junior Representative orin the Senior
Representative's own name, from time to time, in the Senior Representative's
sole discretion, for the purposes of carrying out the terms of this
Section
4.2
, to take any and all appropriate actionand to execute and deliver any and all
documents and instruments as may be necessary or desirable to accomplish the
purposes of this
Section
4.2
, including any financing statements, endorsements, assignments, releases
orother documents or instruments of transfer (which appointment, being coupled
with an interest, is irrevocable).
20
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4.3
Certain Real Property Notices; Insurance
.
(a) The Loan Parties shall give each of the
Non-ABL
Representative and the ABLRepresentative at least 90 days prior written notice
(or such shorter period as may be agreed by the
Non-ABL
Representative and the ABL Representative) of any disposition of any Real
Property owned by any LoanParty at which ABL Priority Collateral is stored or
otherwise located.
(b) If any Real Property is included in the
Non-ABL
Collateral, the
Non-ABL
Representative shall give the ABL Representative at least 30 days' notice (or
such shorter period as may be agreed by the ABLRepresentative) prior to
commencing any Enforcement Action against any Real Property owned by any Loan
Party at which ABL Priority Collateral is stored or otherwise located or to
dispossess any Loan Party from such Real Property.
(c) Proceeds of Common Collateral include insurance proceeds and therefore the
Lien Priority shall govern the ultimatedisposition of casualty insurance
proceeds. The ABL Representative shall be named as additional insured or
lender loss payee, as applicable, with respect to all insurance policies
relating to ABL Priority Collateral and the
Non-ABL
Representative shall be named as additional insured or lender loss payee, as
applicable, with respect to all insurance policies relating to
Non-ABL
PriorityCollateral. The ABL Representative shall have the sole and exclusive
right, as against the
Non-ABL
Representative, to adjust settlement of insurance claims in the event of any
covered loss, theft ordestruction of ABL Priority Collateral. The
Non-ABL
Representative shall have the sole and exclusive right, as against the ABL
Representative, to adjust settlement of insurance claims in the event of
anycovered loss, theft or destruction of
Non-ABL
Priority Collateral. All proceeds of such insurance shall be remitted to the
ABL Representative or the
Non-ABL
Representative, as the case may be, and each of the
Non-ABL
Representative and ABL Representative shall cooperate (if necessary) in a
reasonable manner in effecting the payment of insurance proceeds inaccordance
with
Section
4.1
.
SECTION 5
.
Insolvency Proceedings.
5.1
Filing of Motions
. Until the Senior Obligations Payment Date has occurred, the Junior
Representative agrees on behalf of itself andthe Junior Secured Parties that
no Junior Secured Party shall, in or in connection with any Insolvency
Proceeding, file any pleadings or motions, take any position at any hearing or
proceeding of any nature, or otherwise take any action whatsoever,in each case
in respect of any of the Senior Collateral, including with respect to the
determination of any Liens or claims held by the Senior Representative
(including the validity and enforceability thereof) or any other Senior
Secured Party inrespect of any Senior Collateral or the value of any claims of
such parties under Section 506(a) of the Bankruptcy Code or otherwise;
provided
that the Junior Representative may (i) file a proof of claim in an Insolvency
Proceeding,and (ii) file any necessary responsive or defensive pleadings in
opposition of any motion or other pleadings made by any Person objecting to or
otherwise seeking the disallowance of any Person objecting to or otherwise
seeking the disallowanceof the claims of the Junior Secured Parties on the
Senior Collateral, subject to the limitations contained in this Agreement and
only if consistent with the terms and the limitations on the Junior
Representative imposed hereby.
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5.2
Financing Matters
.
(a) If any Loan Party becomes subject to anyInsolvency Proceeding in the
United States at any time prior to the ABL Obligations Payment Date, and if
the ABL Representative or the other ABL Secured Parties desire to consent (or
not object) to the use of cash collateral that consists solely ofthe proceeds
of ABL Priority Collateral under the Bankruptcy Code or to provide financing
to any Loan Party under the Bankruptcy Code or to consent (or not object) to
the provision of such financing to any Loan Party by any third party (any
suchfinancing, "
ABL DIP Financing
"), then the
Non-ABL
Representative agrees, on behalf of itself and the other
Non-ABL
Secured Parties, that each
Non-ABL
Secured Party (A) will be deemed to have consented to, will raise no objection
to, nor support any other Person objecting to, the use of such cash collateral
or to such ABL DIP Financing on the groundsof a failure to provide "adequate
protection" for the
Non-ABL
Representative's Lien on the
Non-ABL
Collateral to secure the
Non-ABL
Obligations or on any other grounds (and will not request any adequate
protection solely as a result of such ABL DIP Financing), (B) will be deemed
to have consented to, will raise no objection to, norsupport any other Person
objecting to, the payment of interest, fees and expenses or other amounts to
the ABL Secured Parties under Section 506(b) or Section 506(c) of the
Bankruptcy Code or otherwise and (C) will subordinate (andwill be deemed
hereunder to have subordinated) the
Non-ABL
Liens on any ABL Priority Collateral (i) to such ABL DIP Financing on the same
terms as the ABL Liens are subordinated thereto (and suchsubordination will
not alter in any manner the terms of this Agreement), (ii) to any adequate
protection provided to the ABL Secured Parties and (iii) to any
"carve-out"
agreed to by the ABLRepresentative or the other ABL Secured Parties, so long
as (x) the
Non-ABL
Representative retains its Lien on the
Non-ABL
Collateral to secure the
Non-ABL
Obligations (in each case, including Proceeds thereof arising after the
commencement of the case under the Bankruptcy Code) and, as to the
Non-ABL
Priority Collateralonly, such Lien has the same priority as existed prior to
the commencement of the case under the Bankruptcy Code and any Lien securing
such ABL DIP Financing is junior and subordinate to the Lien of the
Non-ABL
Representative on the
Non-ABL
Priority Collateral, (y) all Liens on ABL Priority Collateral securing any
such ABL DIP Financing shall be senior to or on aparity with the Liens of the
ABL Representative and the ABL Secured Parties securing the ABL Obligations on
ABL Priority Collateral and (z) if the ABL Representative receives a
replacement or adequate protection Lien on post-petition assets ofthe debtor
to secure the ABL Obligations, and such replacement or adequate protection
Lien is on any of the
Non-ABL
Priority Collateral, (1) such replacement or adequate protection Lien on
suchpost-petition assets which are part of the
Non-ABL
Priority Collateral (the "
Non-ABL
Post-Petition Assets
") is junior and subordinate to the Lien infavor of the
Non-ABL
Representative on the
Non-ABL
Priority Collateral and (2) the
Non-ABL
Representative also receives areplacement or adequate protection Lien on such
Non-ABL
Post-Petition Assets of the debtor to secure the
Non-ABL
Obligations. In no event will any of the ABL SecuredParties seek to obtain a
priming Lien on any of the
Non-ABL
Priority Collateral and nothing contained herein shall be deemed to be a
consent by the
Non-ABL
SecuredParties to any adequate protection payments using
Non-ABL
Priority Collateral.
(b) If any LoanParty becomes subject to any Insolvency Proceeding in the
United States at any time prior to the
Non-ABL
Obligations Payment Date, and if the
Non-ABL
Representative orthe other
Non-ABL
Secured Parties desire to consent (or not object) to the use of cash
collateral that consists solely of the proceeds of
Non-ABL
Priority Collateralunder the Bankruptcy Code or to provide financing to any
Loan Party under the Bankruptcy Code or to consent (or not object) to the
provision of such financing to any Loan Party by any third party (any such
financing, "
Non-ABL
DIP Financing
"), then the ABL Representative agrees, on behalf of itself and the other ABL
Secured Parties, that each ABL Secured Party (A) will be deemed to have
consented to, will raise noobjection to, nor support any other Person
objecting to, the use of such cash collateral or to such
Non-ABL
DIP Financing on the grounds of a failure to provide "adequate protection" for
the ABLRepresentative's Lien on the ABL Collateral to secure the ABL
Obligations or on any other grounds (and will not request any adequate
protection solely as a result of such
Non-ABL
DIP Financing), (B) willbe deemed to have consented to, will raise no
objection to, nor support any other Person objecting to, the payment of
interest, fees and expenses or other amounts to the
Non-ABL
Secured Parties underSection 506(b) or Section 506(c) of the Bankruptcy Code
or otherwise and (C) will
22
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subordinate (and will be deemed hereunder to have subordinated) the ABL Liens
on any
Non-ABL
Priority Collateral (i) to such
Non-ABL
DIP Financing on the same terms as the
Non-ABL
Liens are subordinated thereto (and such subordination will not alter in any
manner the terms of this Agreement), (ii)to any adequate protection provided
to the
Non-ABL
Secured Parties and (iii) to any
"carve-out"
agreed to by the
Non-ABL
Representative or the other
Non-ABL
Secured Parties, so long as (x) the ABL Representative retains its Lien on the
ABL Collateral to secure the ABLObligations (in each case, including Proceeds
thereof arising after the commencement of the case under the Bankruptcy Code)
and, as to the ABL Priority Collateral only, such Lien has the same priority
as existed prior to the commencement of the caseunder the Bankruptcy Code and
any Lien securing such
Non-ABL
DIP Financing is junior and subordinate to the Lien of the ABL Representative
on the ABL Priority Collateral, (y) all Liens on
Non-ABL
Priority Collateral securing any such
Non-ABL
DIP Financing shall be senior to or on a parity with the Liens of the
Non-ABL
Representative and the
Non-ABL
Secured Parties securing the
Non-ABL
Obligations on
Non-ABL
Priority Collateral and (z) ifthe
Non-ABL
Representative receives a replacement or adequate protection Lien on
post-petition assets of the debtor to secure the
Non-ABL
Obligations, and suchreplacement or adequate protection Lien is on any of the
ABL Priority Collateral, (1) such replacement or adequate protection Lien on
such post-petition assets which are part of the ABL Priority Collateral (the "
ABL Post-PetitionAssets
") is junior and subordinate to the Lien in favor of the ABL Representative on
the ABL Priority Collateral and (2) the ABL Representative also receives a
replacement or adequate protection Lien on such ABL Post-Petition Assets ofthe
debtor to secure the ABL Obligations. In no event will any of the
Non-ABL
Secured Parties seek to obtain a priming Lien on any of the ABL Priority
Collateral, and nothing contained herein shall be deemedto be a consent by the
ABL Secured Parties to any adequate protection payments using ABL Priority
Collateral.
(c) All Liens granted tothe
Non-ABL
Representative or the ABL Representative in any Insolvency Proceeding, whether
as adequate protection or otherwise, are intended to be and shall be deemed to
be subject to the Lien Priority and theother terms and conditions of this
Agreement.
5.3
Relief From the Automatic Stay
. Until the ABL Obligations Payment Date, the
Non-ABL
Representative agrees, on behalf of itself and the other
Non-ABL
Secured Parties, that none of them will seek relief from the automatic stay or
from any other stay inany Insolvency Proceeding or take any action in
derogation thereof, in each case in respect of any ABL Priority Collateral,
without the prior written consent of the ABL Representative. Until the
Non-ABL
Obligations Payment Date, the ABL Representative agrees, on behalf of itself
and the other ABL Secured Parties, that none of them will seek relief from the
automatic stay or from any other stay in any Insolvency Proceeding or take any
action inderogation thereof, in each case in respect of any
Non-ABL
Priority Collateral, without the prior written consent of the
Non-ABL
Representative. In addition, neither the
Non-ABL
Representative nor the ABL Representative shall seek any relief from the
automatic stay with respect to any Common Collateral without providing 30
days' prior written notice to the other, unlessotherwise agreed by both the
ABL Representative and the
Non-ABL
Representative.
5.4
NoContest
. The Junior Representative, on behalf of itself and the other Junior Secured
Parties, agrees that, prior to the Senior Obligations Payment Date, none of
them shall contest (or support any other Person contesting) (a) any request
bythe Senior Representative or any Senior Secured Party for adequate
protection of its interest in the Senior Collateral (unless in contravention of
Section
5.2(a)
or
(b)
, as applicable), or (b) any objection bythe Senior Representative or any
Senior Secured Party to any motion, relief, action, or proceeding based on a
claim by the Senior Representative or any Senior Secured Party that its
interests in the Senior Collateral (unless in contravention of
Section
5.2 (a)
or
(b)
, as applicable) are not adequately protected (or any other similar request
under any law applicable to an Insolvency Proceeding), so long as any Liens
granted to the Senior Representative orsuch Senior Secured Party as adequate
protection of its interests are subject to this Agreement.
23
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5.5
Avoidance Issues.
If any Senior Secured Party is required in any InsolvencyProceeding or
otherwise to disgorge, turn over or otherwise pay to the estate of any Loan
Party, because such amount was avoided or ordered to be paid or disgorged for
any reason, including because it was found to be a fraudulent or preferentialtra
nsfer, any amount (a "
Recovery
"), whether received as proceeds of security, enforcement of any right of
set-off
or otherwise, then the Senior Obligations shall be reinstated to the extentof
such Recovery and deemed to be outstanding as if such payment had not occurred
and the Senior Obligations Payment Date shall be deemed not to have occurred.
If this Agreement shall have been terminated prior to such Recovery, this
Agreement shallbe reinstated in full force and effect, and such prior
termination shall not diminish, release, discharge, impair or otherwise affect
the obligations of the parties hereto. The Junior Secured Parties agree that
none of them shall be entitled tobenefit from any avoidance action affecting
or otherwise relating to any distribution or allocation made in accordance
with this Agreement, whether by preference or otherwise, it being understood
and agreed that the benefit of such avoidance actionotherwise allocable to
them shall instead be allocated and turned over for application in accordance
with the priorities set forth in this Agreement.
5.6
Asset Dispositions in an Insolvency Proceeding
. Neither the Junior Representative nor any other Junior Secured Party shall,
in anInsolvency Proceeding or otherwise, oppose any sale or disposition of any
Senior Collateral that is supported by the Senior Secured Parties, and the
Junior Representative and each other Junior Secured Party will be deemed to
have consented underSection 363 of the Bankruptcy Code (and otherwise) to any
sale of any Senior Collateral supported by the Senior Secured Parties and to
have released their Liens on such assets;
provided
that, if any Real Property is included in the
Non-ABL
Collateral, this
Section
5.6
shall not apply to any case of a sale or disposition of Real Property unless
the ABL Representative has received at least 90 days prior notice (or
suchshorter period as may be agreed by the ABL Representative) of the
consummation of any such sale.
5.7
Other Matters
. The SeniorRepresentative agrees, on behalf of itself and the other Senior
Secured Parties, that to the extent that the Senior Representative or any
other Senior Secured Party has or acquires rights under Section 363 or Section
364 of the BankruptcyCode with respect to any of the Junior Collateral, the
Senior Representative and the other Senior Secured Parties will not assert any
of such rights without the prior written consent of the Junior Representative;
provided
that if requested bythe Junior Representative, the Senior Representative shall
timely exercise such rights in the manner requested by the Junior
Representative, including any rights to payments in respect of such rights.
5.8
Effectiveness in Insolvency Proceedings
. This Agreement, which the parties hereto expressly acknowledge is a
"subordinationagreement" under section 510(a) of the Bankruptcy Code, shall be
effective before, during and after the commencement of an Insolvency
Proceeding.
SECTION 6
.
Non-ABL
Documents and ABL Documents.
(a) Each Loan Party and the
Non-ABL
Representative, on behalf of itself and the
Non-ABL
Secured Parties, agrees that they shall not at any time execute or deliver any
amendment or other modification to any of the
Non-ABL
Documents inconsistent with or inviolation of this Agreement.
(b) Each Loan Party and the ABL Representative, on behalf of itself and the
ABL Secured Parties, agrees thatthey shall not at any time execute or deliver
any amendment or other modification to any of the ABL Documents inconsistent
with or in violation of this Agreement.
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(c) In the event the Senior Representative enters into any amendment, waiver
or consent inrespect of any of the Senior Security Documents for the purpose
of adding to, or deleting from, or waiving or consenting to any departures
from any provisions of, any Senior Security Document or changing in any manner
the rights of any partiesthereunder, in each case solely with respect to any
Senior Collateral, then such amendment, waiver or consent shall apply
automatically to any comparable provision of the Comparable Security Document
without the consent of or action by any JuniorSecured Party (with all such
amendments, waivers and modifications subject to the terms hereof);
provided
that, (i) no such amendment, waiver or consent shall have the effect of
removing assets subject to the Lien of any Junior SecurityDocument, except to
the extent that a release of such Lien is permitted by
Section
4.2
, (ii) any such amendment, waiver or consent that materially and adversely
affects the rights of the Junior Secured Parties and does notaffect the Senior
Secured Parties in a like or similar manner shall not apply to the Junior
Security Documents without the consent of the Junior Representative, (iii) no
such amendment, waiver or consent with respect to any provision applicableto
the Junior Representative under the Junior Documents shall be made without the
prior written consent of the Junior Representative and (iv) notice of such
amendment, waiver or consent shall be given to the Junior Representative no
later than30 days after its effectiveness,
provided
that the failure to give such notice shall not affect the effectiveness and
validity thereof.
SECTION7
. Purchase Options.
7.1.
Notice of Exercise
. (a) Upon the occurrence and during the continuance of an "Eventof Default"
under the ABL Documents, if such Event of Default remains uncured or unwaived
for at least thirty (30) consecutive days and the requisite ABL Secured
Parties have not agreed to forbear from the exercise of remedies, all or
aportion of the
Non-ABL
Creditors, acting as a single group, shall have the option at any time upon
five (5) Business Days' prior written notice to the ABL Representative to
purchase all of the ABLObligations from the ABL Secured Parties. Such notice
from such
Non-ABL
Creditors to the ABL Representative shall be irrevocable.
(b) Upon the occurrence and during the continuance of an "Event of Default"
under the
Non-ABL
Documents, if such Event of Default remains uncured or unwaived for at least
thirty (30) consecutive days and the requisite
Non-ABL
Secured Parties have notagreed to forbear from the exercise of remedies, all
or a portion of the ABL Creditors, acting as a single group, shall have the
option at any time upon five (5) Business Days' prior written notice to the
Non-ABL
Representative to purchase all of the
Non-ABL
Obligations from the
Non-ABL
Secured Parties. Such notice from such ABLCreditors to the
Non-ABL
Representative shall be irrevocable.
7.2
Purchase and Sale
.(a) On the date specified by the relevant
Non-ABL
Creditors in the notice contemplated by
Section
7.1(a)
above (which shall not be less than five (5) Business Days, nor morethan
twenty (20) calendar days, after the receipt by the ABL Representative of the
notice of the relevant
Non-ABL
Creditors' election to exercise such option), the ABL Secured Parties shall
sell tothe relevant
Non-ABL
Creditors, and the relevant
Non-ABL
Creditors shall purchase from the ABL Secured Parties, the ABL Obligations,
provided
that, the ABLRepresentative and the ABL Secured Parties shall retain all
rights to be indemnified or held harmless by the Loan Parties in accordance
with the terms of the ABL Documents but shall not retain any rights to the
security therefor.
(b) On the date specified by the relevant ABL Creditors in the notice
contemplated by
Section
7.1(b)
above (whichshall not be less than five (5) Business Days, nor more than
twenty (20) calendar days, after the receipt by the
Non-ABL
Representative of the notice of the relevant ABL Creditors' election
toexercise such option), the
Non-ABL
Secured Parties shall sell to the relevant ABL Creditors,
25
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and the relevant ABL Creditors shall purchase from the
Non-ABL
Secured Parties, the
Non-ABL
Obligations,
provided
that, the
Non-ABL
Representative and the
Non-ABL
Secured Parties shall retain all rights to be indemnified or held harmless by
the Loan Parties inaccordance with the terms of the
Non-ABL
Documents but shall not retain any rights to the security therefor.
7.3
Payment of Purchase Price
. Upon the date of such purchase and sale, the relevant
Non-ABL
Creditors or the relevant ABL Creditors, as applicable, shall (a) pay (i) to
the ABL Representative for the benefit of the ABL Secured Parties (with
respect to a purchase of the ABL Obligations) or (ii) to the
Non-ABL
Representative for the benefit of the
Non-ABL
Secured Parties (with respect to a purchase of the
Non-ABL
Obligations) as thepurchase price therefor the full amount of all the ABL
Obligations or the
Non-ABL
Obligations, as applicable, then outstanding and unpaid (including principal,
interest, fees and expenses, including reasonableattorneys' fees and legal
expenses but specifically excluding any prepayment premium, termination or
similar fees), (b) with respect to a purchase of the ABL Obligations, furnish
cash collateral to the ABL Representative in a manner and insuch amounts as
the ABL Representative determines is reasonably necessary to secure the ABL
Representative, the ABL Secured Parties, letter of credit issuing banks and
applicable affiliates in connection with any issued and outstanding letters
ofcredit, hedging obligations and cash management obligations secured by the
ABL Documents, (c) with respect to a purchase of the ABL Obligations, agree to
reimburse the ABL Representative, the ABL Secured Parties and letter of credit
issuingbanks for any loss, cost, damage or expense (including reasonable
attorneys' fees and legal expenses) in connection with any commissions, fees,
costs or expenses related to any issued and outstanding letters of credit as
described above and anychecks or other payments provisionally credited to the
ABL Obligations, and/or as to which the ABL Representative has not yet
received final payment, (d) agree to reimburse the ABL Secured Parties or the
Non-ABL
Secured Parties, as applicable, and, with respect to a purchase of the ABL
Obligations, letter of credit issuing banks, in respect of indemnification
obligations of the Loan Parties under the ABLDocuments or the
Non-ABL
Documents, as applicable, as to matters or circumstances known to the ABL
Representative, or the
Non-ABL
Representative, as applicable, at thetime of the purchase and sale which would
reasonably be expected to result in any loss, cost, damage or expense
(including reasonable attorneys' fees and legal expenses) to the ABL Secured
Parties, the
Non-ABL
Secured Parties or letter of credit issuing banks, as applicable, and (e)
agree to indemnify and hold harmless the ABL Secured Parties or the
Non-ABL
Secured Parties, as applicable, and, with respect to a purchase of the ABL
Obligations, letter of credit issuing banks, from and against any loss,
liability, claim, damage or expense (including reasonable fees and expenses of
legal counsel) arisingout of any claim asserted by a third party in respect of
the ABL Obligations or the
Non-ABL
Obligations, as applicable, as a direct result of any acts by any
Non-ABL
Secured Party or any ABL Secured Party, as applicable, occurring after the
date of such purchase. Such purchase price and cash collateral shall be
remitted by wire transfer in federal funds to such bank account(s) in New
York, New York as the ABLRepresentative or the
Non-ABL
Representative, as applicable, may designate in writing for such purpose.
7.4
Limitation on Representations and Warranties
. Such purchase shall be expressly made without representation or warranty of
any kindby any selling party (or the ABL Representative or the
Non-ABL
Representative, as applicable) and without recourse of any kind, except that
the selling party shall represent and warrant: (a) the amount ofthe ABL
Obligations or
Non-ABL
Obligations, as applicable, being purchased from it, (b) that such ABL Secured
Party or
Non-ABL
Secured Party, as applicable, ownsthe ABL Obligations or
Non-ABL
Obligations, as applicable, free and clear of any Liens or encumbrances and
(c) that such ABL Secured Party or
Non-ABL
Secured Party,as applicable, has the right to assign such ABL Obligations or
Non-ABL
Obligations, as applicable, and the assignment is duly authorized.
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SECTION 8
. Reliance; Waivers; etc.
8.1
Reliance
. The ABL Documents are deemed to have been executed and delivered, and all
extensions of credit thereunder are deemed tohave been made or incurred, in
reliance upon this Agreement. The
Non-ABL
Representative, on behalf of itself and the other
Non-ABL
Secured Parties, expressly waives allnotice of the acceptance of and reliance
on this Agreement by the ABL Representative and the other ABL Secured Parties.
The
Non-ABL
Documents are deemed to have been executed and delivered and all extensionsof
credit thereunder are deemed to have been made or incurred, in reliance upon
this Agreement. The ABL Representative, on behalf of itself and the other ABL
Secured Parties, expressly waives all notices of the acceptance of and
reliance on thisAgreement by the
Non-ABL
Representative and the other
Non-ABL
Secured Parties.
8.2
No Warranties or Liability.
The
Non-ABL
Representative and the ABL Representativeacknowledge and agree that neither
has made any representation or warranty with respect to the execution,
validity, legality, completeness, collectability or enforceability of any
other ABL Document or any
Non-ABL
Document. Except as otherwise provided in this Agreement, the
Non-ABL
Representative and the ABL Representative will be entitled to manage and
supervise therespective extensions of credit to any Loan Party in accordance
with law and their usual practices, modified from time to time as they deem
appropriate.
8.3
No Waivers.
No right or benefit of any party hereunder shall at any time in any way be
prejudiced or impaired by any act or failureto act on the part of such party
or any other party hereto or by any noncompliance by any Loan Party with the
terms and conditions of any of the ABL Documents or the
Non-ABL
Documents.
SECTION 9
. Obligations Unconditional.
All rights, interests, agreements and obligations hereunder of the Senior
Representative and the SeniorSecured Parties in respect of any Collateral and
the Junior Representative and the Junior Secured Parties in respect of such
Collateral shall remain in full force and effect regardless of:
(a) any lack of validity or enforceability of any Senior Document or any
Junior Document and regardless of whether the Liens of the SeniorRepresentative
or any Senior Secured Party are not perfected or are voidable for any reason;
(b) any change in the time, manner or placeof payment of, or in any other
terms of, all or any of the Senior Obligations or Junior Obligations, or any
amendment or waiver or other modification, including any increase in the
amount thereof, whether by course of conduct or otherwise, of theterms of any
Senior Document or any Junior Document;
(c) any exchange, release or lack of perfection of any Lien on any Collateral
or anyother asset, or any amendment, waiver or other modification, whether in
writing or by course of conduct or otherwise, of all or any of the Senior
Obligations or Junior Obligations or any guarantee thereof;
(d) the commencement of any Insolvency Proceeding in respect of any Loan
Party; or
(e) any other circumstances which otherwise might constitute a defense
available to, or a discharge of, any Loan Party in respect of anySecured
Obligation or of any Junior Secured Party in respect of this Agreement.
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SECTION 10
.
Miscellaneous.
10.1
Rights of Subrogation
. The
Non-ABL
Representative, for and on behalf of itself and the
Non-ABL
Secured Parties, agrees that no payment to the ABL Representative or any ABL
Secured Party pursuant to the provisions of this Agreement shall entitle the
Non-ABL
Representative or any
Non-ABL
Secured Party to exercise any rights of subrogation in respect thereof until
the ABL Obligations Payment Date. Following the ABL Obligations Payment Date,
the ABL Representativeagrees to execute such documents, agreements, and
instruments as the
Non-ABL
Representative or any
Non-ABL
Secured Party may reasonably request to evidence the transferby subrogation to
any such Person of an interest in the ABL Obligations resulting from payments
to the ABL Representative by such Person, so long as all costs and expenses
(including all reasonable legal fees and disbursements) incurred inconnection
therewith by the ABL Representative are paid by such Person upon request for
payment thereof. The ABL Representative, for and on behalf of itself and the
ABL Secured Parties, agrees that no payment to the
Non-ABL
Representative or any
Non-ABL
Secured Party pursuant to the provisions of this Agreement shall entitle the
ABL Representative or any ABL Secured Party toexercise any rights of
subrogation in respect thereof until the
Non-ABL
Obligations Payment Date. Following the
Non-ABL
Obligations Payment Date, the
Non-ABL
Representative agrees to execute such documents, agreements, and instruments
as the ABL Representative or any ABL Secured Party may reasonably request to
evidence the transfer by subrogation to any suchPerson of an interest in the
Non-ABL
Obligations resulting from payments to the
Non-ABL
Representative by such Person, so long as all costs and expenses (including
allreasonable legal fees and disbursements) incurred in connection therewith
by the
Non-ABL
Representative are paid by such Person upon request for payment thereof.
10.2
Further Assurances
. Each of the
Non-ABL
Representative and the ABL Representative will, atits own expense and at any
time and from time to time, promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary
or desirable, or that any other party may reasonably request, in order
toprotect any right or interest granted or purported to be granted hereby or
to enable the ABL Representative or the
Non-ABL
Representative to exercise and enforce its rights and remedies hereunder;
provided
,
however
, that no party shall be required to pay over any payment or distribution,
execute any instruments or documents, or take any other action referred to in
this
Section
10.2
, to the extent thatsuch action would contravene any law, order or other legal
requirement or any of the terms or provisions of this Agreement, and in the
event of a controversy or dispute, such party may interplead any payment or
distribution in any court of competentjurisdiction, without further
responsibility in respect of such payment or distribution under this
Section
10.2
.
10.3
Conflicts
. In the event of any conflict between the provisions of this Agreement and
the provisions of any ABL Document or any
Non-ABL
Document, the provisions of this Agreement shall govern.
10.4
Continuing Nature ofProvisions.
Subject to
Section
5.5
, this Agreement shall continue to be effective, and shall not be revocable by
any party hereto, until the earlier of (i) the ABL Obligations Payment Date
and (ii) the
Non-ABL
Obligations Payment Date. This is a continuing agreement and the ABL Secured
Parties and the
Non-ABL
Secured Parties may continue, at any time and without notice tothe other
parties hereto, to extend credit and other financial accommodations, lend
monies and provide indebtedness to, or for the benefit of, any Loan Party on
the faith hereof.
10.5
Amendments; Waivers
. (a) No amendment or modification of any of the provisions of this Agreement
shall be effective unlessthe same shall be in writing and signed by the ABL
Representative and the
Non-ABL
Representative, and, in the case of amendments or modifications of Sections
3.5, 3.6, 10.7 or 10.8 or any other provision ofthis Agreement that directly
affect the rights, restrictions, obligations or duties of any Loan Party under
this Agreement or the applicable Loan Documents, such Loan Party.
28
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(b) It is understood that the ABL Representative and the
Non-ABL
Representative, without the consent of any other ABL Secured Party or
Non-ABL
Secured Party, may in their discretion determine that a supplemental
agreement(which may take the form of an amendment and restatement of this
Agreement) is necessary or appropriate to facilitate having additional
indebtedness or other obligations ("
Additional Debt
") of any of the Loan Parties become ABLObligations or
Non-ABL
Obligations, as the case may be, under this Agreement, which supplemental
agreement shall specify whether such Additional Debt constitutes ABL
Obligations or
Non-ABL
Obligations,
provided
, that such Additional Debt is permitted to be incurred by the ABL Agreement
and the
Non-ABL
Agreement then extant, and is permitted bysaid Agreements to be subject to the
provisions of this Agreement as ABL Obligations or
Non-ABL
Obligations, as applicable.
10.6
Information Concerning Financial Condition of the Loan Parties.
Each of the
Non-ABL
Representative and the ABL Representative hereby assumes responsibility for
keeping itself informed of the financial condition of the Loan Parties and all
other circumstances bearing upon the risk of nonpayment of the ABL Obligations
or the
Non-ABL
Obligations. The
Non-ABL
Representative and the ABL Representative hereby agree that no party shall
have any duty to advise any other party of information known to itregarding
such condition or any such circumstances (except as otherwise provided in the
ABL Documents and
Non-ABL
Documents). In the event the
Non-ABL
Representative orthe ABL Representative, in its sole discretion, undertakes at
any time or from time to time to provide any information to any other party to
this Agreement, it shall be under no obligation (a) to provide any such
information to such other partyor any other party on any subsequent occasion,
(b) to undertake any investigation not a part of its regular business routine,
or (c) to disclose any other information.
10.7
Governing Law
. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK, EXCEPT ASOTHERWISE REQUIRED BY MANDATORY PROVISIONS
OF LAW AND EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK ARE GOVERNED BY THE LAWS OF SUCH
JURISDICTION.
10.8
Submission to Jurisdiction; JURY TRIAL WAIVER
. (a) Each ABL Secured Party, each
Non-ABL
Secured Party and each Loan Party hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States DistrictCourt of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement, or for recognition or enforcement of any
judgment, and each ABL Secured Party, each
Non-ABL
Secured Party and each Loan Party hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding shall be
heard and determined in such New York State or, tothe extent permitted by law,
in such Federal court. Each such party agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner providedby law.
Nothing in this Agreement shall affect any right that the any ABL Secured
Party or
Non-ABL
Secured Party may otherwise have to bring any action or proceeding against any
Loan Party or its properties inthe courts of any jurisdiction.
(b) Each ABL Secured Party, each
Non-ABL
Secured Party and eachLoan Party hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so (i) any
objection it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of orrelating to this Agreement in any court
referred to in paragraph (a) of this Section and (ii) the defense of an
inconvenient forum to the maintenance of such action or proceeding.
29
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(c) Each party to this Agreement irrevocably consents to service of process in
the mannerprovided for notices in
Section
10.9
. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
(d) EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THISAGREEMENT OR ANY
OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
EACH PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND IT KNOWINGLY
ANDVOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS
A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.9
Notices.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be givenshall be in writing and
may be personally served, sent by facsimile or sent by overnight express
courier service or United States mail and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of a facsimileor
five days after deposit in the United States mail (certified, with postage
prepaid and properly addressed). For the purposes hereof, the addresses of the
parties hereto (until notice of a change thereof is delivered as provided in
this
Section
10.9
) shall be as set forth below each party's name on the signature pages hereof,
or, as to each party, at such other address as may be designated by such party
in a written notice to all of the other parties.
10.10
Successors and Assigns
.
This Agreement shall be binding upon and inure to the benefit of each of the
parties heretoand each of the ABL Secured Parties and
Non-ABL
Secured Parties and their respective successors and assigns, and nothing
herein is intended, or shall be construed to give, any other Person any right,
remedy orclaim under, to or in respect of this Agreement or any Collateral.
10.11
Headings
. Section headings used herein are forconvenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
10.12
Severability
.
Any provision of this Agreement held to be invalid, illegal or unenforceable
in any jurisdiction shall, asto such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof;
and the invalidity of a particular provision in aparticular jurisdiction shall
not invalidate such provision in any other jurisdiction.
10.13
Other Remedies
. For avoidance ofdoubt, it is understood that nothing in this Agreement shall
prevent any ABL Secured Party or any
Non-ABL
Secured Party from exercising any available remedy to accelerate the maturity
of any indebtedness orother obligations owing under the ABL Documents or the
Non-ABL
Documents, as applicable, or to demand payment under any guarantee in respect
thereof.
30
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10.14
Counterparts; Integration; Effectiveness
. This Agreement may be executed incounterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page of(x) this Agreement
and/or (y) any document, amendment, approval, consent, information, notice
(including, for the avoidance of doubt, any notice delivered pursuant to
Section 10.9), certificate, request, statement, disclosure orauthorization
related to this Agreement and/or the transactions contemplated hereby and/or
thereby (each an "
Ancillary Document
") that is an Electronic Signature transmitted by telecopy, emailed pdf. or
any other electronic meansthat reproduces an image of an actual executed
signature page shall be effective as delivery of a manually executed
counterpart of this Agreement or such Ancillary Document, as applicable. This
Agreement shall become effective when it shall havebeen executed by each party
hereto.
10.15
Additional Loan Parties
. The Borrower shall cause each Person that becomes a Loan Partyafter the date
hereof to become a party to this Agreement by execution and delivery by such
Person of a Joinder Agreement in the form of
Annex 1
hereto.
10.16
Amendment and Restatement
. The parties to the Existing Agreement each hereby agree that the Existing
Agreement automaticallyshall be deemed amended, superseded and restated in its
entirety by this Agreement. This Agreement shall not constitute a novation of
any of the obligations and liabilities existing under the Existing Agreement,
and this Agreement evidences theobligations of the parties under the Existing
Agreement as continued and amended and restated hereby.
[SIGNATURE PAGES TO FOLLOW]
31
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date firstwritten above.
JPMORGAN CHASE BANK, N.A., as ABL Representative for and on behalf of the ABL Secured Parties
By:
Name:
Title:
Address for Notices:
JPMorgan Chase Bank, N.A.
Mail Code
IL1-1190
Floor L2 S
10 S. DearbornStreet
Chicago, IL 60603
Attention: Asset Based Lending Operations
AGWEST FARM CREDIT, PCA, as
Non-ABL
Representative for and on behalf of the
Non-ABL
Secured Parties
By:
Name:
Title:
Address for Notices:
AgWest Farm Credit, PCA
2001 S.Flint Road
PO Box 2515
Spokane, WA 99220-2515
Attention of: Ryan Stipe
Telephone No.: (206)
691-2016
Facsimile No.: (509)
340-5625
E-mail:
ryan.stipe@agwestfc.com
With copies to:
AgWest Farm Credit, PCA
2001 S.Flint Road
PO Box 2515
Spokane, WA 99220-2515
Attention of: Capital Markets
Telephone No.: (800)
255-1789
Facsimile No.: (509)
340-5300
E-mail:
nwfcsallcapitalmarkets@northwestfcs.com
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CLEARWATER PAPER CORPORATION
By:
Name:
Title:
Address for Notices to each Loan Party:
Clearwater Paper Corporation
601West Riverside, Suite 1100
Spokane, WA 99201
Attention: Heidi Blair, VP, Treasurer
Facsimile:
509-444-9793
E-mail:
Heidi.blair@clearwaterpaper.com
[__]
By:
Name:
Title:
-------------------------------------------------------------------------------
ANNEX 1
JOINDER AGREEMENT
THIS JOINDERAGREEMENT (this "
Agreement
"), dated as of [________] [__], 20[_], is executed by ________________________,
a _________________ (the "
New Subsidiary
") in favor of JPMORGAN CHASE BANK, N.A. ("
ABLRepresentative
") and AGWEST FARM CREDIT, PCA ("
Non-ABL
Representative
") in their capacities as ABL Representative and
Non-ABL
Representative,respectively, under the Amended and Restated
ABL/Non-ABL
Intercreditor Agreement (the "
Intercreditor Agreement
"), dated as of [___], 2024 among the ABL Representative, the
Non-ABL
Representative, Clearwater Paper Corporation and each of the other Loan
Parties party thereto. All capitalized terms used herein and not otherwise
defined shall have the meanings set forth in theIntercreditor Agreement.
The New Subsidiary, for the benefit of the ABL Representative and the
Non-ABL
Representative, hereby agrees as follows:
1. The New Subsidiary hereby acknowledges theIntercreditor Agreement and
acknowledges, agrees and confirms that, by its execution of this Agreement,
the New Subsidiary will be deemed to be a Loan Party under the Intercreditor
Agreement and shall have all of the obligations of a Loan Partythereunder as
if it had executed the Intercreditor Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms,
provisions and conditions contained in the Intercreditor Agreement.
2. The address of the New Subsidiary for purposes of Section 10.09 of the
Intercreditor Agreement is as follows:
3. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE NEW SUBSIDIARY
HEREUNDER SHALL BE GOVERNED BY ANDCONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
-------------------------------------------------------------------------------
IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly
executed by itsauthorized officer, as of the day and year first above written.
[NEW SUBSIDIARY]
By:
Name:
Title:
{graphic omitted}
{graphic omitted}