Exhibit 10.1
AMENDMENT NO. 3 TO REVOLVING CREDIT
AGREEMENT, AMENDMENT NO. 1 TO U.S. SECURITY AGREEMENT AND AMENDMENT NO. 1 TO CANADIAN SECURITY AGREEMENT, dated as of November 7, 2024 (this “Amendment”),
by and among RAYONIER A.M. PRODUCTS INC., a Delaware corporation (the “Lead Borrower”), RAYONIER ADVANCED MATERIALS INC., a Delaware corporation (“Holdings”), the other Loan Parties party hereto, the Lenders, the Swing Line Lender and Issuing Banks party hereto and BANK OF AMERICA, N.A. (“Bank of America”),
as Agent.
W I T N E S S E T H:
WHEREAS, (i) Holdings, the
Lead Borrower, the other Loan Parties from time to time party thereto, the Lenders from time to time party thereto and Bank of America, as Agent, are party to that certain Revolving Credit Agreement, dated as of December 10, 2020 (as amended by
Amendment No. 1, dated as of January 17, 2023, and Amendment No. 2, dated as of July 20, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement” and the Existing Credit Agreement as amended by this Amendment, the “Amended Credit Agreement”), (ii) Holdings, the Lead
Borrower, the other Subsidiaries of Holdings from time to time party thereto, as pledgors, and Bank of America, as Agent, are party to that certain U.S. Security Agreement, dated as of December 23, 2020 (as amended, restated, amended and
restated, supplemented or otherwise modified prior to the date hereof, the “Existing U.S. Security Agreement” and, as amended by this Amendment, the “Amended U.S. Security Agreement”); and (iii) certain Subsidiaries of Holdings from time to time party thereto, as pledgors, and Bank of America, as Agent, are party to that certain Canadian Security Agreement, dated as of
December 23, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Canadian Security Agreement” and the Existing
Canadian Security Agreement as amended by this Amendment, the “Amended Canadian Security Agreement”);
WHEREAS, the Lead Borrower
has requested (i) that the Existing Credit Agreement be amended to, among other things, (A) reduce the Aggregate Commitments from $200,000,000 to $175,000,000 (such reduced Commitments, the “2024
Revolving Credit Commitments”, and any advances thereunder, the “2024 Revolving Credit Advances”), (B) extend the Termination Date and (C) make certain other amendments to
the Existing Credit Agreement, (ii) that certain amendments be made the Existing U.S. Security Agreement, and (iii) that certain amendments be made the Existing Canadian Security Agreement, in each case, in accordance with Section 10.01 of the
Existing Credit Agreement and as further set forth herein, and each of the Persons party hereto as a Lender (each, a “2024
Revolving Credit Lender”) and/or as an Issuing Bank (each, a “2024 Issuing Bank”) have agreed to such amendments; and
WHEREAS, the Lead Borrower
has entered into a new senior secured term loan credit agreement pursuant to which the lenders thereunder will make term loans to the Lead Borrower in an aggregate principal amount up to $700,000,000 (the “New Term Loans”) and Holdings, the Lead Borrower and their Subsidiaries intend to use the proceeds of the New Term Loans, together with cash on hand, to refinance in full the 2026 Notes and the Specified Debt.
NOW, THEREFORE, in
consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined
Terms. Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Existing Credit Agreement.
SECTION 2. Amendments.
From and after the Amendment No. 3 Effective Date (as defined below):
(a) the Existing
Credit Agreement is hereby amended as set forth in Exhibit A hereto to insert the language marked as underscored and delete the language marked as strikethrough;
(b) Section 1.1 of the Existing U.S.
Security Agreement is hereby amended by amending and restating the definitions of “Copyrights”, “Excluded Assets”, “Intellectual Property Licenses”, “Patents”, “Trade Secrets” and “Trademarks”, each in their entirety, as set forth below:
““Copyrights” shall mean all of the following now owned or hereafter
acquired by any Pledgor: (a) all copyrights (whether registered or unregistered), all Registrations and recordings thereof, and all applications in connection therewith, including all Registrations, recordings and applications in the United States
Copyright Office or in any similar office or agency of the United States, any state or territory thereof, or any other country or any political subdivision thereof, including those listed on Schedule 1.01B to this Agreement and (b) all extensions
or renewals of any copyrights or Registrations therefor, in each case of (a) and (b), together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s ownership of such copyrights, (ii) income, fees,
royalties, damages, claims and payments now or hereafter due and/or payable to such Pledgor with respect thereto, including damages and payments for past, present or future infringements thereof, (iii) rights corresponding thereto throughout the
world and (iv) rights to sue for past, present or future infringement thereof.”
““Excluded Assets” shall mean:
(i) Excluded Accounts
described in clause (i) and (v) of the definition of Excluded Accounts;
(ii) all real property
(other than fixtures);
(iii) [reserved];
(iv) [reserved];
(v) motor vehicles and
other assets subject to certificates of title, Letter-of-Credit Rights (except to the extent constituting supporting obligations) and Commercial Tort Claims having a value, or involving an asserted claim, that is less than $25,000,000 in amount
individually; except in each case to the extent perfection can be obtained by filing of UCC or PPSA financing statements or registering hypothecs;
(vi) any lease, license
or other similar agreement or any property subject to a purchase money security interest, capital lease or similar arrangement permitted under the Loan Documents to the extent that a grant of a security interest therein would violate or
invalidate such permitted lease, license or other agreement or purchase money arrangement, capital lease, or similar arrangement or create a right of termination in favor of any other party thereto (other than a Borrower or a Guarantor) after
giving effect to the applicable anti-assignment provisions of the UCC, PPSA or other applicable law and other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable
law notwithstanding such prohibition;
(vii) any “intent to use”
trademark applications prior to the issuance of a statement of use with respect thereto;
(viii) any Equity Interests
of (a) any not-for-profit Subsidiary, captive insurance company Subsidiary or other special purpose Subsidiary of the Lead Borrower designated by the Lead Borrower’s board of directors as such or (b) any Subsidiary that is not a Material
Subsidiary or;
(ix) any assets to the
extent a pledge thereof would (A) be prohibited by applicable law, rule or regulation after giving effect to the applicable anti-assignment provisions of the UCC, the PPSA and other applicable law, or contractual restriction (including, solely
in the case of the Equity Interests of a Person that is not the Company, a Guarantor or a Wholly Owned Restricted Subsidiary, the organizational documents of such Person) permitted under the Loan Documents and the 2026 Notes Indenture and
binding on such asset on the Amendment No. 3 Effective Date or on the date of the acquisition of such Subsidiary (not created in contemplation of the acquisition of such Subsidiary) (and only for so long as such restriction is in effect), in
each case, after giving effect to the applicable anti-assignment provisions of the UCC, PPSA or other applicable law or (B) require governmental (including regulatory) consent, approval, license or authorization (unless such consent, approval,
license or authorization has been received), in each case, after giving effect to the applicable anti-assignment provisions of applicable law and to other applicable law;
(x) Margin Stock;
(xi) any assets as to
which the Agent reasonably determines in consultation with the Borrowers that the costs of obtaining a security interest are excessive in relation to the value of the security afforded to the Secured Parties thereby;
(xii) any governmental
licenses, permits or state or local franchises, charters and authorizations, to the extent Liens and security interests therein are prohibited or restricted thereby, in each case, after giving effect to the applicable anti-assignment provisions
of applicable law and to other applicable law; and
(xiii) to the extent any
applicable law requires that a Subsidiary issue directors’ qualifying shares, such shares or nominee or other similar shares;
(xiv) any Equity Interests
of any Excluded Canadian Subsidiary, to the extent that the pledge of such Equity Interests is not then permitted under the terms of any Canadian Financing or to the extent that such Excluded Canadian Subsidiary is not a Wholly Owned Subsidiary
of a Guarantor; and
(xv) any asset the
granting of any pledge, Lien or security interest of or in which would reasonably be expected to result in material and adverse tax consequences to the Lead Borrower or any of its Subsidiaries, as determined in good faith by the Lead Borrower
in consultation with the Agent; provided, however, that this clause (xv) shall not apply to any assets of any Canadian Subsidiary or Equity Interests in any French Subsidiary unless the material and adverse tax consequences of pledging such
assets results from a Change in Law after the Amendment No. 3 Effective Date;
provided that no assets included in the
Borrowing Base shall constitute Excluded Assets provided, further, that Excluded Assets shall not include any Proceeds of
any Excluded Assets except to the extent that such Proceeds would otherwise constitute Excluded Assets.”
““Intellectual Property Licenses” shall mean, collectively, with
respect to each Pledgor, all of such Pledgor’s rights under any license agreements, covenants not to sue or similar agreements with any other party with respect to any Patent, Trademark, Copyright or Trade Secret, whether such Pledgor is a licensor
or licensee, under any such agreement, together with any and all (i) renewals, extensions, supplements and continuations thereof, (ii) income, fees, royalties, damages, claims and payments now and hereafter due and/or payable to Pledgor thereunder
and with respect thereto including damages and payments for past, present or future breaches, infringements or violations of licensed intellectual property, (iii) rights, if any, granted to such Pledgor pursuant to such agreements to sue for past,
present and future breaches, infringements or violations of any patents, trademarks or copyrights licensed to such Pledgor and (iv) other rights, if any, granted to such Pledgor pursuant to such agreements to use, exploit or practice any
intellectual property licensed to such Pledgor.”
““Patents” shall mean all of the following, now owned or hereafter
acquired by any Pledgor: (a) all patents and industrial designs of the United States or of any other country, all issuances and recordings thereof, and all applications for patent or industrial designs of the United States or of any other country,
including issuances, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state or territory, or any other country or political subdivision thereof, including
those set forth on Schedule 1.01C to this Agreement, and (b) all reissues, reexaminations, divisions, continuations, continuations-in-part or extensions thereof and amendments thereto, in each case of (a) and (b), together with any and all (i)
rights and privileges arising under applicable law with respect to such Pledgor’s ownership of any such patents or industrial designs, (ii) inventions, designs and improvements described or claimed therein, (iii) income, fees, royalties, damages,
claims and payments now or hereafter due and/or payable to Pledgor thereunder and with respect thereto including damages and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v)
rights to sue for past, present or future infringements thereof.”
““Trade Secrets” shall mean all of the following now owned or
hereafter acquired by any Pledgor: (a) all rights in all trade secrets, know how, technology (whether patented or not), Software (including source code and object code), data and databases, Internet web sites, customer and supplier lists,
proprietary information, methods, procedures, formulae, descriptions, compositions, technical data, drawings, specifications, name plates, catalogs, confidential information and the right to limit the use or disclosure thereof by any Person,
pricing and cost information, business and marketing plans and proposals, and other proprietary information, in each case, together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s ownership of
the foregoing, (ii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable to such Pledgor with respect thereto, including damages and payments for past, present or future infringements, misappropriations or
violations thereof, (iii) rights corresponding thereto throughout the world and (iv) rights to sue for past, present or future infringement, misappropriation or violation thereof.”
““Trademarks” shall mean all of the following now owned or hereafter
acquired by any Pledgor: (a) all trademarks, trade names, domain names, URLs, corporate names, business names, trade dress, service marks, logos, other source or business identifiers, all Registrations and recordings thereof; and all applications
in connection therewith, including Registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state or territory thereof, or any other country or any
political subdivision thereof including those set forth on Schedule 1.01E to this Agreement; (b) all renewals thereof; and (c) all Goodwill associated with any of the foregoing, in each case of (a), (b) and (c), together with any and all (i) rights
and privileges arising under applicable law with respect to such Pledgor’s ownership or use of the foregoing, (ii) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including
damages, claims and payments for past, present or future infringements, dilutions or violations thereof, (iii) rights corresponding thereto throughout the world and (iv) rights to sue for past, present and future infringement, dilutions or
violations thereof.”
(c) Section 2.1 of the Existing U.S.
Security Agreement is hereby amended by amending and restating the final paragraph thereof in its entirety as follows:
“Notwithstanding anything to the contrary contained in this Section 2.1, the Lien and
security interest created by this Agreement shall not attach to, and the term “Collateral” shall not include, any Excluded Assets (but shall attach to, and “Collateral” shall include, any Proceeds of Excluded Assets except to the extent such
Proceeds would otherwise constitute Excluded Assets).”
(d) Section 4.9 of the Existing U.S.
Security Agreement is hereby amended and restated in its entirety as follows:
“SECTION 4.9. Chief Executive Office; Change of Name; Jurisdiction of
Organization etc. Each Pledgor agrees to promptly provide the Agent with certified organizational documents reflecting any of the changes described in Section 7.01(j) of the Credit Agreement, to the extent applicable, and at the
request of the Agent take all action necessary to maintain the perfection and priority of the security interest of the Agent for the benefit of the Secured Parties in the Collateral. Each Pledgor will furnish to the Agent, concurrently with the
delivery of annual financial statements by Holdings in accordance with Section 7.04(b) of the Credit Agreement, updated versions of the schedules to the Perfection Certificate further identifying and describing the assets and property of such
Pledgor and such other reports in connection therewith as the Agent may reasonably request in writing, all in reasonable detail.”
(e) Section 1.1 of the Existing Canadian
Security Agreement is hereby amended by amending and restating the definitions of “Copyrights”, “Excluded Assets”, “Intellectual Property Licenses”, “Patents”, “Trade Secrets” and “Trademarks”, each in their entirety, as set forth below:
““Copyrights” shall mean all of the following now owned or hereafter
acquired by any Pledgor: (a) all copyrights (whether registered or unregistered), all Registrations and recordings thereof, and all applications in connection therewith, including all Registrations, recordings and applications in the Canadian
Intellectual Property Office, United States Copyright Office or in any similar office or agency of Canada, the United States, any province, state or territory thereof, or any other country or any political subdivision thereof, including those
listed on Schedule 1.01B to this Agreement and (b) all extensions or renewals of any copyrights or Registrations therefor, in each case of (a) and (b), together with any and all (i) rights and privileges arising under applicable law with respect to
such Pledgor’s ownership of such copyrights, (ii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable to such Pledgor with respect thereto, including damages and payments for past, present or future
infringements thereof, (iii) rights corresponding thereto throughout the world and (iv) rights to sue for past, present or future infringement thereof.”
““Excluded Assets” shall mean:
(i) Excluded Accounts
described in clause (i) and (v) of the definition of Excluded Accounts;
(ii) all real property
(other than fixtures);
(iii) consumer goods
(as defined in the PPSA);
(iv) the last day of the
term of any lease or agreement for lease of real property, provided that upon enforcement of the security interest provided for herein, each Pledgor shall stand possessed of such last
day in trust or assign the same to any person acquiring such term;
(v) [reserved];
(vi) any lease, license
or other similar agreement or any property subject to a purchase money security interest, capital lease or similar arrangement permitted under the Loan Documents to the extent that a grant of a security interest therein would violate or
invalidate such permitted lease, license or other agreement or purchase money arrangement, capital lease, or similar arrangement or create a right of termination in favour of any other party thereto (other than a Borrower or a Guarantor) after
giving effect to the applicable anti-assignment provisions of the UCC, PPSA or other applicable law and other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable
law notwithstanding such prohibition;
(vii) any “intent to
use” trademark applications prior to the issuance of a statement of use with respect thereto;
(viii) any Equity
Interests of (a) any not-for-profit Subsidiary, captive insurance company Subsidiary or other special purpose Subsidiary of the Lead Borrower designated by the Lead Borrower’s board of directors as such or (b) any Subsidiary that is not a
Material Subsidiary;
(ix) any assets to the
extent a pledge thereof would (A) be prohibited by applicable law, rule or regulation after giving effect to the applicable anti-assignment provisions of the UCC, the PPSA and other applicable law, or contractual restriction (including, solely
in the case of the Equity Interests of a Person that is not the Company, a Guarantor or a Wholly Owned Restricted Subsidiary, the organizational documents of such Person) permitted under the Loan Documents and the 2026 Notes Indenture and
binding on such asset on the Amendment No. 3 Effective Date or on the date of the acquisition of such Subsidiary (not created in contemplation of the acquisition of such Subsidiary) (and only for so long as such restriction is in effect), in
each case, after giving effect to the applicable anti-assignment provisions of the UCC, PPSA or other applicable law or (B) require governmental (including regulatory) consent, approval, license or authorization (unless such consent, approval,
license or authorization has been received), in each case, after giving effect to the applicable anti-assignment provisions of applicable law and to other applicable law;
(x) Margin Stock;
(xi) any assets as to
which the Agent reasonably determines in consultation with the Borrowers that the costs of obtaining a security interest are excessive in relation to the value of the security afforded to the Secured Parties thereby;
(xii) any governmental
licenses, permits or state or local franchises, charters and authorizations, to the extent Liens and security interests therein are prohibited or restricted thereby, in each case, after giving effect to the applicable anti-assignment provisions
of applicable law and to other applicable law; and
(xiii) to the extent any
applicable law requires that a Subsidiary issue directors’ qualifying shares, such shares or nominee or other similar shares;
(xiv) any Equity
Interests of any Excluded Canadian Subsidiary, to the extent that the pledge of such Equity Interests is not then permitted under the terms of any Canadian Financing or to the extent that such Excluded Canadian Subsidiary is not a Wholly Owned
Subsidiary of a Guarantor; and
(xv) any asset the
granting of any pledge, Lien or security interest of or in which would reasonably be expected to result in material and adverse tax consequences to the Lead Borrower or any of its Subsidiaries, as determined in good faith by the Lead Borrower
in consultation with the Agent; provided, however, that this clause (xv) shall not apply to any assets of any Canadian Subsidiary or Equity Interests in any French Subsidiary unless the material and adverse tax consequences of pledging such
assets results from a Change in Law after the Closing Date;
provided that no assets included in the
Borrowing Base shall constitute Excluded Assets; provided, further, that Excluded Assets shall not include any Proceeds of
any Excluded Assets except to the extent that such Proceeds would otherwise constitute Excluded Assets.”
““Intellectual Property Licenses” shall mean, collectively, with
respect to each Pledgor, all of such Pledgor’s rights under any license agreements, covenants not to sue or similar agreements with any other party with respect to any Patent, Trademark, Copyright or Trade Secret, whether such Pledgor is a licensor
or licensee, under any such agreement, together with any and all (i) renewals, extensions, supplements and continuations thereof, (ii) income, fees, royalties, damages, claims and payments now and hereafter due and/or payable to Pledgor thereunder
and with respect thereto including damages and payments for past, present or future breaches, infringements or violations of licensed intellectual property, (iii) rights, if any, granted to such Pledgor pursuant to such agreements to sue for past,
present and future breaches, infringements or violations of any patents, trademarks or copyrights licensed to such Pledgor and (iv) other rights, if any, granted to such Pledgor pursuant to such agreements to use, exploit or practice any
intellectual property licensed to such Pledgor.”
““Patents” shall mean all of the following, now owned or hereafter
acquired by any Pledgor: (a) all patents and industrial designs of Canada, the United States or of any other country, all issuances and recordings thereof, and all applications for patent or industrial designs of Canada, the United States or of any
other country, including issuances, recordings and applications in the Canadian Intellectual Property Office, the United States Patent and Trademark Office or in any similar office or agency of Canada, the United States, any province, state or
territory, or any other country or political subdivision thereof, including those set forth on Schedule 1.01C to this Agreement, and (b) all reissues, reexaminations, divisions, continuations, continuations-in-part or extensions thereof and
amendments thereto, in each case of (a) and (b), together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s ownership of any such patents or industrial designs, (ii) inventions, designs and
improvements described or claimed therein, (iii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable to Pledgor thereunder and with respect thereto including damages and payments for past, present or future
infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future infringements thereof.”
““Trade Secrets” shall mean all of the following now owned or
hereafter acquired by any Pledgor: (a) all rights in all trade secrets, know how, technology (whether patented or not), Software (including source code and object code), data and databases, Internet web sites, customer and supplier lists,
proprietary information, methods, procedures, formulae, descriptions, compositions, technical data, drawings, specifications, name plates, catalogs, confidential information and the right to limit the use or disclosure thereof by any Person,
pricing and cost information, business and marketing plans and proposals, and other proprietary information, in each case, together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s ownership of
the foregoing, (ii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable to such Pledgor with respect thereto, including damages and payments for past, present or future infringements, misappropriations or
violations thereof, (iii) rights corresponding thereto throughout the world and (iv) rights to sue for past, present or future infringement, misappropriation or violation thereof.”
““Trademarks” shall mean all of the following now owned or hereafter
acquired by any Pledgor: (a) all trademarks, trade names, domain names, URLs, corporate names, business names, trade dress, service marks, logos, other source or business identifiers, all Registrations and recordings thereof; and all applications
in connection therewith, including Registrations, recordings and applications in the Canadian Intellectual Property Office, the United States Patent and Trademark Office or in any similar office or agency of Canada, the United States, any province,
state or territory thereof, or any other country or any political subdivision thereof including those set forth on Schedule 1.01E to this Agreement; (b) all renewals thereof; and (c) all Goodwill associated with any of the foregoing, in each case
of (a), (b) and (c), together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s ownership or use of the foregoing, (ii) income, fees, royalties, damages and payments now and hereafter due and/or
payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements, dilutions or violations thereof, (iii) rights corresponding thereto throughout the world and (iv) rights to sue for past,
present and future infringement, dilutions or violations thereof.”
(f) Section 2.1 of the Existing Canadian
Security Agreement is hereby amended by amending and restating the penultimate paragraph thereof in its entirety as follows:
“Notwithstanding anything to the contrary contained in this Section 2.1, the Lien and
security interest created by this Agreement shall not attach to, and the term “Collateral” shall not include, any Excluded Assets (but shall attach to, and “Collateral” shall include, any Proceeds of Excluded Assets except to the extent such
Proceeds would otherwise constitute Excluded Assets).”
(g) Section 4.9 of the Existing Canadian
Security Agreement is hereby amended and restated in its entirety as follows:
“SECTION 4.9. Chief Executive Office; Registered Office, Change of Name;
Jurisdiction of Organization etc. Each Pledgor agrees to promptly provide the Agent with certified organizational documents reflecting any of the changes described in Section 7.01(j) of the Credit Agreement, to the extent applicable,
and at the request of the Agent take all action necessary to maintain the perfection and priority of the security interest of the Agent for the benefit of the Secured Parties in the Collateral. Each Pledgor will furnish to the Agent, concurrently
with the delivery of annual financial statements by Holdings in accordance with Section 7.04(b) of the Credit Agreement, updated versions of the schedules to the Perfection Certificate further identifying and describing the assets and property of
such Pledgor and such other reports in connection therewith as the Agent may reasonably request in writing, all in reasonable detail.”
(h) Schedule 1.01A (Commitment Amounts)
of the Existing Credit Agreement is hereby amended and restated in its entirety as set forth in Exhibit B hereto;
(i) Schedule 1.01E (Eligible Inventory
Locations) of the Existing Credit Agreement is hereby amended and restated in its entirety as set forth in Exhibit C hereto; and
(j) Schedule 10.02 (Agent’s Office;
Certain Addresses for Notices) of the Existing Credit Agreement is hereby amended and restated in its entirety as set forth in Exhibit D hereto.
SECTION 3. Representations
& Warranties. In order to induce the 2024 Revolving Credit Lenders, the 2024 Issuing Banks and the Agent to enter into this Amendment, each Loan Party hereby represents and warrants to the 2024 Revolving Credit Lenders, the
2024 Issuing Banks and the Agent as of the Amendment No. 3 Effective Date that:
(a) The
representations and warranties of such Loan Party contained in Article VI of the Amended Credit Agreement are true and correct in all material respects as of the Amendment No. 3 Effective Date with the same effect as though made on and as of
such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and except to
the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects. For purposes of this Section 3(a), the representations and warranties contained in Section 6.01(f) of the Amended Credit Agreement shall be deemed to refer to the most recent financial statements furnished
pursuant to Sections 7.04(a) and (b) of the Amended Credit Agreement, respectively.
(b) No Default or
Event of Default has occurred and is continuing on the Amendment No. 3 Effective Date (immediately prior to giving effect to this Amendment) or would result immediately after giving effect to this Amendment.
(c) This Amendment has
been duly executed and delivered by each Loan Party that is party hereto and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity (regardless of whether considered in a proceeding in equity or at
law).
(d) The execution,
delivery and performance by such Loan Party of this Amendment (i) has been duly authorized by all necessary corporate or other organizational action of such Loan Party and (ii) does not (w) contravene the terms of any of its Constitutive
Documents, (x) violate any Requirements of Law which would be reasonably likely to have a Material Adverse Effect, (y) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any material
contract, loan agreement, indenture, mortgage, deed of trust, lease or other material instrument binding on or affecting any Loan Party or any of its properties, in each case, which would be reasonably likely to have a Material Adverse Effect
or (z) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party (other than in favor of the Agent under the Loan Documents).
SECTION 4. Conditions
to Effectiveness of Amendment. The effectiveness of the amendments set forth in Section 2 above is subject to satisfaction (or waiver by each 2024 Revolving Credit
Lender and 2024 Issuing Bank party hereto) of the following conditions precedent (the date of such satisfaction or waiver being the “Amendment No. 3 Effective Date”):
(a) The Agent shall
have received counterparts of this Agreement, executed by a Responsible Officer of each Loan Party and a duly authorized officer of the Agent, each 2024 Revolving Credit Lender and each 2024 Issuing Bank.
(b) The Agent shall have
received a counterpart of that certain (i) Intercreditor Agreement (the “ABL/Term Loan Intercreditor Agreement”), to be dated as of the Amendment No. 3 Effective Date, executed by a
duly authorized officer of Alter Domus (US) LLC, as the Term Loan Agent (as defined in the ABL/Term Loan Intercreditor Agreement) and (ii) Term Loan Credit Agreement (the “Term Loan Credit
Agreement”), dated as of October 28, 2024, executed by a duly authorized officer of the Term Loan Agent.
(c) The Agent shall
have received a counterpart of a Joinder Agreement, to be dated as of the Amendment No. 3 Effective Date, joining RYAM AGE Holdco LLC as a Pledgor under the Amended U.S. Security Agreement, executed by a Responsible Officer of RYAM AGE Holdco
LLC.
(d) The Agent shall have
received:
(i) copies of the
applicable Constitutive Documents of each Loan Party and RYAM AGE Holdco LLC, as in effect on the Amendment No. 3 Effective Date;
(ii) a certificate of
the secretary or an assistant secretary of each Loan Party and RYAM AGE Holdco LLC certifying the names and signatures of the officers of each such entity authorized to sign each Loan Document to which it is or is to be a party and the other
documents to be delivered hereunder and thereunder;
(iii) a certificate as
to the good standing (or status or compliance, as applicable) of each Loan Party and RYAM AGE Holdco LLC as of a recent date, from the Secretary of State (or other applicable Governmental Authority) of its jurisdiction of incorporation or
formation; and
(iv) certified
copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party and RYAM AGE Holdco LLC approving (A) the this Amendment and the
transactions related hereto and (B) the execution and delivery of this Amendment and the performance of this Amendment and the Amended Credit Agreement.
(e) The Agent shall
have received executed copies of written opinions of (i) Wachtell, Lipton, Rosen & Katz, as special New York counsel for the Loan Parties, (ii) Potter Anderson & Corroon LLP, as Delaware counsel for the Loan Parties, and (iii) McCarthy
Tétrault LLP, as Canadian counsel for the Loan Parties, in each case, dated as of the Amendment No. 3 Effective Date and addressed to the Agent.
(f) The Lead Borrower
shall have paid all reasonable and documented out-of-pocket fees and expenses of the Agent and the 2024 Revolving Credit Lenders (including, without limitation, such legal fees and expenses of Latham & Watkins LLP and Norton Rose Fulbright
Canada LLP, as counsel to the Agent) incurred in connection with the preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder.
(g) Each of the
representations and warranties of the Loan Parties contained in Section 3 of this Amendment are true and correct in all material respects as of the Amendment No. 3 Effective Date with
the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material
respects as of such earlier date) and except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and
correct in all respects.
(h) No Default or
Event of Default has occurred and is continuing on the Amendment No. 3 Effective Date (immediately prior to giving effect to this Amendment) or would result immediately after giving effect to this Amendment.
(i) The Agent shall
have received a certificate of the Lead Borrower, dated as of the Amendment No. 3 Effective Date, executed by a Responsible Officer of the Lead Borrower certifying compliance with the requirements set forth in clauses (g) and (h) of this Section 4.
(j) The Agent shall
have received a customary solvency certificate of the Holdings, dated as of the Amendment No. 3 Effective Date, executed by the chief financial officer or treasurer (or other officer with similar responsibilities) of Holdings.
(k) Each 2024
Revolving Credit Lender shall have received at least three (3) Business Days prior to the Amendment No. 3 Effective Date, to the extent requested no later than ten (10) Business Days prior to the Amendment No. 3 Effective Date, (i) all
documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, with respect to this Amendment and (ii) to the
extent that the Lead Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification to each 2024 Revolving Credit Lender that so requests.
(l) Each 2024
Revolving Credit Lender shall have received, for its own account, an amendment fee equal to 0.50% of the aggregate dollar amount of the 2024 Revolving Credit Commitments of each such 2024 Revolving Credit Lender as of the Amendment No. 3
Effective Date.
(m) On the Amendment
No.3 Effective Date, substantially concurrently with the effectiveness of the amendments set forth in Section 2 above:
(i) the Lead Borrower
shall purchase any 2026 Notes validly tendered in the 2026 Notes Tender Offer (as defined in the Term Loan Credit Agreement) in accordance with the terms thereof, and no modification, amendment or waiver to such terms shall have been made
without the consent of the Agent (not to be unreasonably withheld, conditioned or delayed);
(ii) the Lead Borrower
shall satisfy and discharge and/or legally defease any remaining 2026 Notes not acquired by the Lead Borrower in the 2026 Notes Tender Offer in full in accordance with Article VIII of the 2026 Notes Indenture;
(iii) the Lead Borrower
shall deliver to the Trustee (as defined in the 2026 Notes Indenture) an unconditional and irrevocable notice of redemption pursuant to which the Lead Borrower shall be unconditionally and irrevocably required to redeem the 2026 Notes in full
on or prior to January 15, 2025; and
(iv) all guarantees of
the 2026 Notes and Liens securing the 2026 Notes shall have been released, and the Agent shall have received release documentation in connection therewith;
(n) Each of the Third Party Specified
Debt and Specified Intercompany Loan shall have been (or substantially concurrently with the funding of the Loans shall be) repaid in full, and in connection therewith all guaranteed obligations and liens shall have been released, on or
substantially concurrently with the effectiveness of the amendments, on terms reasonably acceptable to the Agent (in each case, other than contingent obligations (including indemnification obligations) that by their terms are to survive the
termination of the relevant loan documentation).
(o) The Lead Borrower shall have entered
into the Term Loan Credit Agreement, which shall be in form and substance satisfactory to the Agent. The Agent and the Lenders hereby acknowledge and agree that the draft Term Loan Credit Agreement delivered to the Agent on or prior to the date
hereof is in form and substance satisfactory to the Agent.
SECTION 5. Intercreditor
Authorization.
(a) Each 2024 Revolving Credit Lender and
2024 Issuing Bank hereby directs the Agent on their behalf to execute and deliver that certain ABL/Term Loan Intercreditor Agreement as set forth in Exhibit E hereto. The Agent is
hereby authorized to take any such actions as are necessary to effectuate the terms of the ABL/Term Loan Intercreditor Agreement.
(b) Each 2024 Revolving Credit Lender and
2024 Issuing Bank hereby acknowledges and agrees (i) that the Agent has no obligation to deliver the Purchase Option Event Notice (as defined in the ABL/Term Loan Intercreditor Agreement) under the ABL/Term Loan Intercreditor Agreement and the
Agent may choose to deliver such notice at its sole discretion or if directed in writing by the Majority Lenders, (ii) that the Agent’s delivery or non-delivery of the Purchase Option Event Notice is subject to the indemnification and
exculpation provisions of the Amended Credit Agreement, including, without limitation, Sections 9.03 and 10.04 thereof.
SECTION 6. Effects
on Loan Documents.
(a) On and after the effectiveness of
this Amendment, each reference in any Loan Document to “the Credit Agreement” shall mean and be a reference to the Amended Credit Agreement and each reference in the Amended Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words
of like import shall mean and be a reference to the Amended Credit Agreement.
(b) Without limiting the foregoing, each
of the Loan Parties further (i) hereby agrees that, immediately after giving effect to this Amendment and any transactions contemplated to be consummated on the Amendment No. 3 Effective Date, all guarantees, pledges and grants of security
interests, as applicable, under the Loan Documents (as in effect immediately prior to the Amendment No. 3 Effective Date) shall continue to be in full force and effect and are made and reaffirmed as of the Amendment No. 3 Effective Date and
shall continue to inure to the benefit of the Lenders and the other Secured Parties under the Collateral Documents, and, to the extent it is the issuer of shares of stock, membership interests, or other Equity Interests that are pledged to the
Agent under and pursuant to any Collateral Document, in its capacity as issuer thereof, hereby consents to and ratifies such pledge and (ii) hereby ratifies, confirms and agrees that all Liens granted, conveyed, or assigned by such Person
pursuant to any Collateral Document to which it is a party remain in full force and effect, are not released or reduced, and immediately after giving effect to this Amendment and any transactions contemplated to be consummated on the Amendment
No. 3 Effective Date, continue in favor of the Agent, as “collateral agent” for the benefit of the Secured Parties, to secure full payment and performance of the Obligations and such Liens continue unimpaired with the same priority to secure
repayment of such Obligations whether heretofore or hereafter incurred and no new filings are required to be made and no other action is required to be taken to perfect or to maintain the perfection of such Liens.
(c) The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair
or otherwise affect the rights and remedies of the Agent or the Lenders under the Loan Documents; provided, however, that the Agent and the Lenders hereby acknowledge and agree that, notwithstanding anything contained in the Existing Credit
Agreement or otherwise, the New Term Loans are permitted Refinancing Indebtedness under Section 7.02(a)(xv) of the Existing Credit Agreement, secured by Liens permitted under Section 7.02(g) of the Existing Credit Agreement and clause (20) of
the definition of “Permitted Liens” contained therein. This Amendment and the Amended Credit Agreement shall not constitute a novation of the Existing Credit Agreement or the other Loan Documents.
(d) The Lead Borrower and the other
parties hereto acknowledge and agree that, on and after the Amendment No. 3 Effective Date, this Amendment shall constitute a Loan Document for all purposes of the Amended Credit Agreement.
SECTION 7. Miscellaneous.
(a) This Amendment shall be binding upon
and inure to the benefit of the Loan Parties and their respective successors and permitted assigns, and upon the Agent and the Lenders and their respective successors and permitted assigns. By its execution hereof, the Agent hereby
acknowledges the terms of this Amendment.
(b) To the extent permitted by applicable
requirements of law, any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to 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 a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
(c) Sections 10.04(a), 10.04(c),
10.04(f), 10.11, 10.16, 10.17 and 10.23 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis. Notwithstanding the foregoing and Section
10.17 of the Amended Credit Agreement, Sections 2(e), 2(f) and 2(g) hereof shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein.
(d) This Amendment may be executed in
counterparts (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 this Amendment by facsimile transmission or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,” “signature,” and
words of like import in or related to this Amendment or any other document to be signed in connection with this Amendment shall be deemed to include electronic signatures, or the keeping of records in electronic form, each of which shall be of
the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided
that notwithstanding anything contained herein to the contrary the Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Agent pursuant to procedures approved by it.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Amendment as of the date first above
written.
|
RAYONIER A.M. PRODUCTS INC., as Lead
Borrower
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By:
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/s/ Michael H. Walsh
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Name:
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Michael H. Walsh
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Title:
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Vice President and Treasurer
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RAYONIER ADVANCED MATERIALS INC., as Holdings
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By:
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/s/ Michael H. Walsh
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Name:
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Michael H. Walsh
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Title:
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Treasurer and Vice President,
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Investor Relations
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RAYONIER A.M. CHINA LIMITED,
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RAYONIER A.M. FAR EAST LTD.,
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RAYONIER A.M. FINANCE LLC,
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RAYONIER A.M. INVESTMENTS USA II INC.,
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RAYONIER A.M. PAPERBOARD SALES INC.,
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RAYONIER A.M. PROPERTIES LLC,
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RAYONIER A.M. SALES AND TECHNOLOGY LLC,
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RAYONIER ADVANCED MATERIALS INDUSTRIES LTD.,
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RAYONIER PERFORMANCE FIBERS, LLC, as
Guarantors
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By:
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/s/ Michael H. Walsh
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Name:
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Michael H. Walsh
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Title:
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Vice President and Treasurer
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SOUTHERN WOOD PIEDMONT COMPANY, as
Guarantor
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By:
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/s/ Richard Colby Slaughter
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Name:
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Richard Colby Slaughter
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Title:
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President
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RAYONIER A.M. CANADA G.P. / RAYONIER A.M. CANADA, SOCIÉTÉ EN NOM COLLECTIF, acting through its managing partner, RAYONIER
A.M. CANADA INDUSTRIES INC. / INDUSTRIES RAYONIER A.M. CANADA INC., as Guarantor
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By:
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/s/ Lynn Poirier
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Name:
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Lynn Poirier
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Title:
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Treasurer
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RAYONIER A.M. CANADA INDUSTRIES INC. / INDUSTRIES RAYONIER A.M. CANADA INC.,
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RAYONIER A.M. CONSTRUCTION COMPANY INC. / RAYONIER A.M. COMPAGNIE DE CONSTRUCTION INC.,
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RYAM CANADA HOLDINGS ULC / GESTION RYAM CANADA SRI, as Guarantors
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By:
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/s/ Lynn Poirier
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Name:
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Lynn Poirier
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Title:
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Treasurer
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BANK OF AMERICA, N.A.,
as Agent
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By:
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/s/ Jenifer L. Medzi
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Name:
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Jenifer L. Medzi
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Title:
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Senior Vice President
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BANK OF AMERICA, N.A.,
as a 2024 Revolving Credit Lender, a 2024 Issuing Bank and the Swing Line Lender
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By:
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/s/ Jenifer L. Medzi
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Name:
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Jenifer L. Medzi
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Title:
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Senior Vice President
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PNC Bank, National Association,
as a 2024 Revolving Credit Lender and 2024 Issuing Bank
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By:
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/s/ Bianca S. Musiyenko
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Name:
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Bianca S. Musiyenko
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Title:
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Vice President
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CoBank, ACB,
as a 2024 Revolving Credit Lender and 2024 Issuing Bank
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By:
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/s/ Robert Prickett
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Name:
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Robert Prickett
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Title:
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Vice President
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Regions Bank,
as a 2024 Revolving Credit Lender
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By:
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/s/ Will DeCamps
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Name:
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Will DeCamps
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Title:
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Vice President
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U.S. $200,000,000175,000,000
REVOLVING CREDIT AGREEMENT
Dated as of December 10, 2020
as amended by Amendment No. 1, dated as of January 17, 2023 and,
as amended by Amendment No. 2, dated as of July 20, 2023 and
as amended by Amendment No. 3, dated as of
November 7, 2024
among
RAYONIER ADVANCED MATERIALS INC.,
as Holdings,
RAYONIER A.M. PRODUCTS INC.,
as Lead Borrower,
THE OTHER SUBSIDIARIES OF HOLDINGS NAMED HEREIN,
as Designated Borrowers,
THE GUARANTORS NAMED HEREIN,
THE BANKS AND FINANCIAL INSTITUTIONS NAMED HEREIN,
as Lenders,
THE BANKS NAMED HEREIN
as Issuing Banks,
BOFA SECURITIES, INC.,
COBANK, ACB,
PNC CAPITAL MARKETS LLC,
as Joint Lead Arrangers and Joint Bookrunners for the Revolving Credit Commitments incurred on the
BOFA SECURITIES, INC. and
as Joint Lead Arrangers and Joint
Bookrunners for the 2024 Revolving Credit Commitments incurred on the Amendment No. 3 Effective Date,
as Syndication Agent for the 2024
Revolving Credit Commitments incurred on the Amendment No. 3 Effective Date
and
BANK OF AMERICA, N.A.,
as Agent
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TABLE OF CONTENTS
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PAGE
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ARTICLE I
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DEFINITIONS AND ACCOUNTING TERMS
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Section 1.01
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Certain Defined Terms
|
23
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Section 1.02
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Computation of Time Periods
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8789
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|
Section 1.03
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Accounting Terms
|
8789
|
|
Section 1.04
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Exchange Rates; Currency Equivalents; Ratio and Basket Calculations
|
8789
|
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Section 1.05
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Change of Currency
|
90
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|
Section 1.06
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Times of Day
|
8990
|
|
Section 1.07
|
Letter of Credit Amounts
|
8990
|
|
Section 1.08
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Limited Conditions Acquisitions
|
8991
|
|
Section 1.09
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Divisions
|
9092
|
|
Section 1.10
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Borrower Representative
|
9092
|
|
Section 1.11
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Interest Rates
|
9092
|
|
Section 1.12
|
Quebec Interpretive Provision
|
9193
|
|
ARTICLE II
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AMOUNTS AND TERMS OF THE ADVANCES
|
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Section 2.01
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The Revolving Credit Advances; Reserves
|
93
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Section 2.02
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Making the Advances
|
9294
|
|
Section 2.03
|
Swing Line Advances
|
9496
|
|
Section 2.04
|
Letters of Credit
|
9799
|
|
Section 2.05
|
Fees
|
109 |
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Section 2.06
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Reduction and Increase of the Revolving Credit Commitments; Additional Issuing Banks
|
109 |
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Section 2.07
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Repayment of Advances
|
113115
|
|
Section 2.08
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Interest on Advances
|
113115
|
|
Section 2.09
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Inability to Determine Rates
|
114116
|
|
Section 2.10
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Prepayments of Advances
|
117118
|
|
Section 2.11
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Increased Costs
|
118120
|
|
Section 2.12
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Illegality
|
120122
|
|
Section 2.13
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Cash Collateral
|
121123
|
|
Section 2.14
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Defaulting Lenders
|
122124
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Section 2.15
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Designated Borrowers
|
124126
|
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ARTICLE III
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GUARANTY
|
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Section 3.01
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Guaranty
|
125127
|
|
Section 3.02
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Waivers by Loan Parties
|
126128
|
|
Section 3.03
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Benefit of Guaranty; Stay of Acceleration
|
128
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|
Section 3.04
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Subordination of Subrogation, Etc.
|
127128
|
|
Section 3.05
|
[Reserved]
|
127129
|
|
Section 3.06
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Limitation
|
127129
|
|
Section 3.07
|
Contribution with Respect to Guaranty Obligations
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127129
|
|
Section 3.08
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Liability Cumulative
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128130
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|
Section 3.09
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Release of Borrowers and Guarantors
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128130
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ARTICLE IV
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PAYMENTS, TAXES, EXTENSIONS, ETC.
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Section 4.01
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Payments Generally; Agent’s Clawback
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129131
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|
Section 4.02
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Taxes
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131132
|
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Section 4.03
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Sharing of Payments by Lenders
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135137
|
|
Section 4.04
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Evidence of Debt/Borrowings
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136138
|
|
ARTICLE V
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CONDITIONS OF LENDING
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Section 5.01
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Conditions Precedent to Effective Date
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138
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|
Section 5.02
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Conditions Precedent to the Closing Date
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138140
|
|
Section 5.03
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Conditions Precedent to Credit Extension
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140142
|
|
ARTICLE VI
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REPRESENTATIONS AND WARRANTIES
|
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Section 6.01
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Representations and Warranties of the Loan Parties
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141142
|
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ARTICLE VII
|
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COVENANTS OF THE LOAN PARTIES
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Section 7.01
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Affirmative Covenants
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146
|
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Section 7.02
|
Negative Covenants
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152154
|
|
Section 7.03
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Financial Covenants
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180
|
|
Section 7.04
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Reporting Requirements
|
179181
|
|
ARTICLE VIII
|
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EVENTS OF DEFAULT
|
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Section 8.01
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Events of Default
|
182184
|
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Section 8.02
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Application of Funds
|
185187
|
|
ARTICLE IX
|
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THE AGENT
|
|
Section 9.01
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Appointment and Authority
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186188
|
|
Section 9.02
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Rights as a Lender
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187189
|
|
Section 9.03
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Exculpatory Provisions
|
187189
|
|
Section 9.04
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Reliance by Agent
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188190
|
|
Section 9.05
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Delegation of Duties
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189191
|
|
Section 9.06
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Resignation of Agent
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189191
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|
Section 9.07
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Non-Reliance on Agent and Other Lenders
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190192
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Section 9.08
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No Other Duties, Etc.
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191193
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Section 9.09
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Agent May File Proofs of Claim; Credit Bidding
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191193
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Section 9.10
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Lender ERISA Matters.
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193195
|
|
Section 9.11
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Collateral and Guaranty Matters
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194196
|
|
Section 9.12
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Bank Product Documents, Hedging Obligations and Secured Supply Chain Financings
|
195197
|
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Section 9.13
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Withholding Tax
|
195197
|
|
Section 9.14
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Recovery of Erroneous Payments
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|
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ARTICLE X
|
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MISCELLANEOUS
|
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Section 10.01
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Amendments, Etc.
|
196198
|
|
Section 10.02
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Notices, Etc.
|
197199
|
|
Section 10.03
|
No Waiver; Remedies
|
201
|
|
Section 10.04
|
Costs and Expenses
|
200202
|
|
Section 10.05
|
Right of Set-off
|
202204
|
|
Section 10.06
|
Binding Effect
|
203205
|
|
Section 10.07
|
Assignments and Participations
|
203205
|
|
Section 10.08
|
Payments Set Aside
|
209211
|
|
Section 10.09
|
Severability of Provisions
|
209211
|
|
Section 10.10
|
Independence of Provisions
|
209211
|
|
Section 10.11
|
Confidentiality
|
209212
|
|
Section 10.12
|
Replacement of Lenders
|
210212
|
|
Section 10.13
|
Headings
|
211213
|
|
Section 10.14
|
Entire Agreement
|
211213
|
|
Section 10.15
|
Execution in Counterparts
|
211213
|
|
Section 10.16
|
Consent to Jurisdiction
|
211213
|
|
Section 10.17
|
GOVERNING LAW
|
212214
|
|
Section 10.18
|
USA PATRIOT Act
|
212214
|
|
Section 10.19
|
No Advisory or Fiduciary Responsibility
|
212214
|
|
Section 10.20
|
Judgment Currency
|
212215
|
|
Section 10.21
|
Electronic Execution of Assignments and Certain Other Documents
|
213215
|
|
Section 10.22
|
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
|
213215
|
|
Section 10.23
|
WAIVER OF JURY TRIAL
|
214216
|
|
Section 10.24
|
Acknowledgement Regarding Any Supported QFCs
|
214216
|
|
SCHEDULES AND EXHIBITS
|
| |
|
SCHEDULES
|
| |
|
Schedule 1.01A
|
-
|
Commitment Amounts
|
|
Schedule 1.01C
|
-
|
Existing Letters of Credit
|
|
Schedule 1.01D
|
-
|
Existing Hedge Agreements
|
|
Schedule 1.01E
|
-
|
Eligible Inventory Locations
|
|
Schedule 6.01(h)
|
-
|
Environmental Matters
|
|
Schedule 6.01(i)
|
-
|
ERISA Matters
|
|
Schedule 6.01(r)
|
-
|
DDAs
|
|
Schedule 6.01(t)
|
-
|
Canadian Defined Benefit Plans
|
|
Schedule 7.01(p)
|
-
|
Post-Closing Matters
|
|
Schedule 7.02(a)
|
-
|
Existing Debt
|
|
Schedule 10.02
|
-
|
Agent’s Office; Certain Addresses for Notices
|
|
Schedule 10.07(i)
|
-
|
Farm Credit Lenders Designated As Voting Participants
|
| |
|
|
|
EXHIBITS
|
|
|
| |
|
|
|
Exhibit A-1
|
-
|
Form of Committed Advance Notice
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Exhibit A-2
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-
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Form of Swing Line Advance Notice
|
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Exhibit B
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-
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Form of Note
|
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Exhibit C
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-
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Form of Assignment and Acceptance
|
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Exhibit D
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-
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Form of Assumption Agreement
|
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Exhibit E
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-
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Form of Administrative Questionnaire
|
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Exhibit F
|
-
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Form of ABL Intercreditor Agreement
|
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Exhibit G
|
-
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Form of Supplemental Guaranty
|
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Exhibit H-1
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-
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Form of United States Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For United States Federal Income Tax Purposes)
|
|
Exhibit H-2
|
-
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Form of United States Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For United States Federal Income Tax Purposes)
|
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Exhibit H-3
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-
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Form of United States Tax Compliance Certificate (For Foreign Participants That Are Partnerships For United States Federal Income Tax Purposes)
|
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Exhibit H-4
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-
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Form of United States Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For United States Federal Income Tax Purposes)
|
|
Exhibit I
|
-
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Form of Designated Borrower Joinder Agreement
|
REVOLVING CREDIT AGREEMENT, dated as of December 10, 2020 (as amended by Amendment No. 1 to Revolving Credit Agreement, dated as of January 17, 2023, and Amendment No. 2 to Revolving Credit Agreement, dated as of July 20, 2023, and Amendment No. 3 to Revolving Credit Agreement, dated as of November 7, 2024, and as
further amended, restated, amended and restated, modified or supplemented from time to time, this “Agreement”), among Rayonier Advanced Materials Inc., a Delaware corporation (“Holdings”), Rayonier A.M. Products Inc., a Delaware
corporation (the “Lead Borrower”), certain of Holdings’ direct or indirect wholly owned domestic subsidiaries from time to time party hereto, as borrowers (the “Designated Borrowers” and together with Lead Borrower, the “Borrowers”
and each, individually, a “Borrower”), the other Loan Parties (with such term and each other capitalized term used but not defined in this preamble having the meaning assigned thereto in Article I) from time to time party hereto,
the Lenders from time to time party hereto, the Issuing Banks and Bank of America, N.A. (“Bank of America”), as administrative agent and collateral agent (together with any permitted successor in such capacity, the “Agent”) for the
Lenders and the Issuing Banks hereunder.
RECITALS:
WHEREAS, on the Closing Date, the Borrowers and the Guarantors agreed to secure all of the Obligations by granting to Agent, for the benefit of the
Secured Parties, a security interest in the Collateral;
WHEREAS, on the Closing Date, the Lenders and Issuing Banks agreed to make certain loans
and other extensions of credit to the Borrowers upon the terms and conditions set forth herein; and
WHEREAS, all annexes, schedules, exhibits and other attachments (collectively, “Appendices”)
to this Agreement are incorporated herein by reference, and taken together with this Agreement, shall constitute but a single agreement. These Recitals shall be construed as part of this Agreement.; and
WHEREAS, as of the
Amendment No. 3 Effective Date (a) the Aggregate Commitments are reduced to $175,000,000, (b) the Lenders and their respective Revolving Credit Commitments and Issuing Commitments are those set forth on Schedule 1.01A, as replaced in its entirety
in Amendment No. 3, and (c) any Person that was a Lender prior to the Amendment No. 3 Effective Date that is not listed on Schedule 1.01A shall no longer have any rights or obligations as a Lender hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the
parties hereto agree as follows
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain
Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“2024 Notes” means Lead Borrower’s 5.50% Senior Notes due 2024
issued on May 22, 2014 in an initial aggregate principal amount of $550,000,000.
“2024 Notes Indenture” means the Indenture, dated as of May 22,
2014, among Lead Borrower, each of the guarantors party thereto and Wells Fargo Bank, National Association, as trustee.
“2024
Revolving Credit Commitment” has the meaning assigned to such term in Amendment No. 3.
“2024 Revolving Credit Lender” has the meaning assigned to such term in Amendment No. 3.
“2024 Revolving Credit Advances” has the meaning assigned to such term in Amendment No. 3.
“2024
Issuing Bank” has the meaning assigned to such term in Amendment No. 3.
“2026 Notes” means Lead Borrower’s Senior Secured Notes due 2026
to be issued on the Closing Date in an initial aggregate principal amount of up to $500,000,000.
“2026 Notes Indenture” means the Indenture to be dated as of the
Closing Date among Lead Borrower, each of the guarantors party thereto and the Notes Collateral Agent.
“ABL Intercreditor Agreement” means (i) prior to the Amendment No. 3 Effective Date, the intercreditor agreement, to be dated as of the Closing DateDecember 23, 2020, among Agent, the Notes Collateral Agent and the Loan Parties, substantially in the form of Exhibit Fas the same may be
amended, restated, supplemented or otherwise modified from time to time, and (ii) on and after the Amendment No. 3 Effective Date, (A) the intercreditor agreement, to be dated as of the Amendment No. 3 Effective Date, among Agent, the Term Loan
Agent, and the Loan Parties, as the same may be amended, restated, supplemented or otherwise modified from time to time, or (B) any other intercreditor agreement among the Agent, the Notes CollateralTerm
Loan Agent and the Loan Parties on terms that are not less favorable in any material respect to the Secured Parties than those contained in the form attached as Exhibit F.
“ABL Priority Collateral” has the meaning specified in the ABL
Intercreditor Agreement.
“Account” has the meaning specified in the UCC or PPSA, as
applicable, and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, or (b) for services rendered or to
be rendered.
“Account Debtor” means any Person who is obligated on an
Account, chattel paper or a general intangible.
“ACH” means automated clearing house transfers.
“Acquired Indebtedness” means, with respect to any specified
Person: (1) Indebtedness of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into or became a Restricted Subsidiary of such specified Person, and (2) Indebtedness secured by a Lien encumbering
any asset acquired by such specified Person. Acquired Indebtedness will be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Restricted Subsidiary and, with respect to clause (2)
of the preceding sentence, on the date of consummation of such acquisition of such assets.
“Acquisition” means, with respect to any Person, (a) the
acquisition by such Person of the Capital Stock of any other Person resulting in such other Person becoming a Subsidiary of such Person, (b) the acquisition by such Person of all or substantially all of the assets of any other Person or of a
division or business line of such Person, or (c) any merger, amalgamation or consolidation of such Person or a Subsidiary of such Person with any other Person so long as the surviving or continuing entity of such merger, amalgamation or
consolidation is such Person or a Subsidiary of such Person.
“Additional Refinancing Amount” means, in connection with the
Incurrence of any Refinancing Indebtedness, the aggregate principal amount of additional Indebtedness, Disqualified Capital Stock or
Preferred Stock Incurred to pay accrued and unpaid interest, premiums (including tender premiums), expenses, defeasance costs and fees in respect thereof.
“Adjustment Date” means the first day of the calendar quarter
starting July 1, 2021 and the first day of each subsequent calendar quarter.
“Administrative Questionnaire” means an Administrative
Questionnaire in substantially the form of Exhibit E or any other form approved by the Agent.
“Advance” or “Loan” means an extension of credit by a
Lender to a Borrower under Article II in the form of a Revolving Credit Advance or a Swing Line Advance.
“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, controls, is controlled by, or is under common control with, such Person.
“Affiliate Transaction” has the meaning specified in Section
7.02(e).
“Agent” has the meaning specified in the preamble to this
Agreement.
“Agent’s Office” means, with respect to any currency, the
Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account with as the Agent may from time to time notify to Lead Borrower and the Lenders.
“Aggregate Commitments” means the sum of the Commitments of all
the Lenders. As of the Amendment No. 3 Effective Date, the Aggregate Commitments are $200,000,000175,000,000.
“Allocable Amount” has the meaning specified in Section
3.07(b).
“Alternative Currency” means Canadian Dollars and any other
currencies requested by the Borrowers and approved by each of the Lenders and the Issuing Banks.
“Alternative Currency Equivalent” means, at any time, with
respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the applicable Issuing Bank at such time on the basis of the Spot Rate (determined in respect of the most recent
Revaluation Date) for the purchase of such Alternative Currency with Dollars.
“Amendment No. 1” means Amendment No. 1 to Revolving Credit
Agreement, dated as of January 17, 2023, by and among the Lead Borrower, Holdings, the other Loan Parties party thereto, the Swing Line Lender, the other Lenders party thereto, the Issuing Banks party thereto and the Agent.
“Amendment No. 1 Effective Date” shall have the meaning assigned
to such term in Amendment No. 1. The Amendment No. 1 Effective Date shall be January 17, 2023.
“Amendment No. 2” means Amendment No. 2 to Revolving Credit
Agreement, dated as of July 20, 2023, by and among the Lead Borrower, Holdings, the other Loan Parties party thereto, the Swing Line Lender, the other Lenders party thereto, the Issuing Banks party thereto and the Agent.
“Amendment No. 2 Effective Date” shall have the meaning assigned
to such term in Amendment No. 2. The Amendment No. 2 Effective Date shall be July 20, 2023.
“Amendment
No. 3” means Amendment No. 3 to Revolving Credit Agreement, Amendment No. 1 to U.S. Security Agreement and Amendment No. 1 to Canadian Security Agreement, dated as of November 7, 2024, by and among the Lead Borrower, Holdings, the other Loan
Parties party thereto, the Swing Line Lender, the other Lenders party thereto, the Issuing Banks party thereto and the Agent.
“Amendment
No. 3 Effective Date” shall have the meaning assigned to such term in Amendment No. 3. The Amendment No. 3 Effective Date shall be November 7, 2024.
“Appendices” has the meaning specified in the Recitals to this
Agreement.
“Applicable Margin” means:
(a) From and after the
Closing Date until the first Adjustment Date, the percentages set forth in Level II of the pricing grid below; and
(b) From and after the first Adjustment Date and on each Adjustment Date thereafter, the Applicable Margin shall be determined from the following pricing grid based upon the Average Daily Excess Availability
as of the calendar quarter ended immediately preceding such Adjustment Date; provided, however, that if any Borrowing Base Certificates are at any time restated or otherwise revised (including as a result of an audit) or if the
information set forth in any Borrowing Base Certificates otherwise proves to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any
Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand. Notwithstanding the foregoing,
commencing with the Adjustment Date occurring on July 1, 2021 and for each Adjustment Date thereafter, each of the percentages set forth in the table below shall be reduced by 0.25% if Holdings’ Total Leverage Ratio as of the last day of the
most recently ended Fiscal Quarter preceding such Adjustment Date for which financial statements have been, or are required to have been, delivered is less than or equal to 5.00 to 1.00.
|
Level
|
Average Daily
Excess
Availability
|
Applicable Margin for Term
SOFR Loans and Letter of
Credit Fees
|
Applicable Margin for Base
Rate Loans
|
|
I
|
Greater than 67% of the Loan
Cap
|
2.25%
|
1.25%
|
|
II
|
Less than or equal to 67% of the Loan Cap
but greater than 33% of the Loan Cap
|
2.50%
|
1.50%
|
|
III
|
Less than or equal to 33% of the Loan Cap
|
2.75%
|
1.75%
|
“Appraised Value” means the appraised orderly liquidation value,
net of costs and expenses to be incurred in connection with any such liquidation, which value is expressed as a percentage of Cost of Eligible Inventory or Eligible FOB Inventory as set forth in the inventory stock ledger of the Borrowers, which
value shall be determined from time to time by the most recent appraisal undertaken by an independent appraiser engaged by the Agent.
“Appropriate Lender” means, at any time, (a) with respect to the
Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or holds a Revolving Credit Advance at such time, (b) with respect to the Letter of Credit Sublimit, (i) the Issuing Banks and (ii) if any Letters of Credit
have been issued pursuant to Section 2.04(a), the Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Advances are outstanding pursuant to Section 2.03(a), the Lenders.
“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.
“Assignment and Acceptance” means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the Agent (if such acceptance is required by this Agreement), in substantially the form of Exhibit C.
“Assuming Lender” means any Person (other than a natural Person
(or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person)) that is not an existing Lender and has agreed to provide any Additional Revolving Commitments or commitments in respect of
FILO Term Loans pursuant to Section 2.06.
“Assumption Agreement” means an agreement, substantially in the
form of Exhibit D, by which an Eligible Assignee agrees to become a Lender hereunder pursuant to Section 2.06(b), agreeing to be bound by all obligations of a Lender hereunder.
“Availability” means, as of any date of determination thereof by
the Agent, the result, if a positive number, of:
(a) the Loan Cap, minus
(b) the Total Revolving
Credit Outstandings.
“Availability Period” means the period from and including the
Closing Date to the Termination Date.
“Availability Reserves” means, without duplication of any other Reserves or items to the extent such items are otherwise addressed or excluded through eligibility criteria or have been deducted in the calculation of
Eligible Inventory, Eligible FOB Inventory, Eligible Accounts, Eligible Foreign Accounts, Eligible Credit Insurance-Backed Foreign Accounts and Eligible Letter of Credit-Backed Foreign Accounts, as applicable, as reported on the most recent
Borrowing Base Certificate, such reserves as the Agent from time to time determines in its Permitted Discretion as being appropriate: (a) to reflect the impediments to the Agent’s ability to realize upon the ABL Priority Collateral, (b) to reflect
claims and liabilities that the Agent determines will need to be satisfied in connection with the realization upon the ABL Priority Collateral, (c) to reflect criteria, events, conditions, contingencies or risks which adversely affect in any
material respects any component of the Borrowing Base, or (d) to reflect that an Event of Default then exists. Without limiting the generality of the foregoing, Availability Reserves may include, in the Agent’s Permitted Discretion (but are not
limited to) reserves based on: (i) rent; (ii) reserves for fees payable to freight carriers, freight forwarders, customs brokers, shipping companies or other Persons in
possession of Inventory, port and customs fees, and any fees, charges or amounts payable to any Person in connection with the transportation and delivery of Eligible FOB Inventory, including with respect to insurance deductibles and co-insurance
arrangements; (iii) outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales,
claims of the PBGC and other Taxes not otherwise in dispute which may have priority over the interests of the Agent in the ABL Priority Collateral; (iv) salaries, wages and benefits due to employees of any Loan Party; (v) reserves for reasonably
anticipated changes in the Appraised Value of Eligible Inventory or Eligible FOB Inventory between appraisals; (vi) warehousemen’s or bailee’s charges and other Permitted Liens which may have priority over the interests of the Agent in the ABL
Priority Collateral; (vii) Receivable Reserves; (viii) Credit Insurance Reserves; (ix) the Canadian Priority Payables Reserve; (x) the Canadian Wage Earner Protection Act Reserve and (xi) Bank Product Reserves.
“Average Daily Excess Availability” means the average daily
Availability for the immediately preceding Fiscal Quarter.
“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
Country implementing 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
the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the
resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank of America” means Bank of America, N.A., including its
Affiliates and branches.
“Bank Product Document” means any agreement or instrument
providing for Bank Products.
“Bank Product Reserves” means, as of any date of determination,
those reserves that Agent from time to time determines in its Permitted Discretion as being necessary or appropriate to establish in respect of Bank Products and Secured Hedge Agreements then provided or outstanding.
“Bank Products” means any one or more of the following types of
services or facilities extended to Holdings or any of its Subsidiaries by a Cash Management Bank: (a) any treasury or other cash management services, including (i) deposit account, (ii) automated clearing house (ACH) origination and other funds
transfer, (iii) depository (including cash vault and check deposit), (iv) zero balance accounts and sweep, and other ACH Transactions, (v) return items processing, (vi) controlled disbursement, (vii) positive pay, (viii) lockbox, (ix) account
reconciliation and information reporting, (x) payables outsourcing, (xi) payroll processing, and (xii) daylight overdraft facilities and (b) card services, including (i) credit card (including purchasing card and commercial card), (ii) prepaid
card, including payroll, stored value and gift cards, (iii) merchant services processing, and (iv) debit card services.
“Bank Products Obligations” means any debts, liabilities and
obligations as existing from time to time of Holdings or any of its Subsidiaries arising from or in connection with any Bank Products under any Bank Product Document.
“Base Rate” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate,” (c) Term SOFR for an Interest Period of one (1) month plus 1.00% and (d) 1.25%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by
Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.09 hereof, then the Base Rate
shall be the greater of clauses (a), (b) and (d) above and shall be determined without reference to clause (c) above.
“Base Rate Advance” or “Base Rate Loan” means an Advance
which bears interest based on the Base Rate. All Base Rate Advances shall be denominated in Dollars.
“Beneficial Ownership Certification” means a certification
regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“BIA” means the Bankruptcy and Insolvency Act (Canada).
“Blocked Account” has the meaning provided in Section
7.01(i)(ii).
“Blocked Account Agreement” means with respect to a DDA
established by a Loan Party, an agreement, in form and substance reasonably satisfactory to the Agent, establishing control (as defined in the UCC or the PPSA if applicable) of such account by the Agent and whereby the bank maintaining such account
agrees, upon the occurrence and during the continuance of a Cash Dominion Period, to comply only with the instructions originated by the Agent without the further consent of any Loan Party.
“Blocked Account Bank” means each bank with whom deposit
accounts are maintained in which any funds of any of the Loan Parties from one or more DDAs are concentrated and with whom a Blocked Account Agreement has been, or is required to be, executed in accordance with the terms hereof.
“Board of Directors” means, as to any Person, the board of
directors or managers, as applicable, of such Person or any direct or indirect parent of such Person (or, if such Person is a partnership, the board of directors or other governing body of the general partner of such Person) or any duly authorized
committee thereof.
“Borrower” and “Borrowers” has the meaning set forth in
the preamble to this Agreement.
“Borrowing” means a Revolving Credit Borrowing or a Swing Line
Borrowing, as the context may require.
“Borrowing Base” means, at any time of calculation, an amount
equal to:
(a) 8585.0% of the face amount of Eligible Accounts; plus
(b) 8585.0% of the face amount of Eligible Letter-of-Credit Backed Foreign Accounts; plus
(c) 9090.0% of the face amount of Eligible Credit Insurance-Backed Foreign Accounts; plus
(d) 8585.0% of the face amount of Eligible Foreign Accounts; provided that the aggregate amount of Eligible Foreign Accounts included in the Borrowing Base pursuant to
this clause (d) (i.e., giving effect to such 8585.0% advance rate) shall not exceed 1520.0% of the Loan Cap at the time of calculation (determined after giving effect to such inclusion); provided, further, that the aggregate amount of Eligible Foreign Accounts included in the Borrowing Base as of any date of
determination, taken together with the
aggregate amount of Eligible FOB Inventory included in the Borrowing Base pursuant to clause (f) below, shall not contribute Availability under the Borrowing Base in excess of 15.020.0% of the Aggregate Commitments; plus
(e) 85.0% of the face amount of Accounts that satisfy all of the criteria of “Eligible Accounts” except
clause (f) thereof, to the extent not otherwise included in the Borrowing Base pursuant to clause (b), (c), or (d) above; provided that the aggregate amount of such Accounts included in the Borrowing Base pursuant to this clause (e) (i.e.,
giving effect to such 85.0% advance rate) shall not exceed $10,000,000 at the time of calculation (determined after giving effect to such inclusion); plus
(ef) the lesser of (i) the product of 7070.0% multiplied by the Cost of Eligible Inventory, and
(ii) the product of 8585.0% multiplied by the Appraised Value of such Eligible Inventory; plus
(fg) the lesser of (i) the product of 7070.0% multiplied by the Cost of Eligible FOB Inventory,
and (ii) the product of 8585.0% multiplied by the Appraised Value of such Eligible FOB Inventory; provided that the aggregate amount of Eligible FOB Inventory
included in the Borrowing Base as of any date of determination, taken together with the aggregate amount of Eligible Foreign Accounts included in the Borrowing Base pursuant to clause (d) above, shall not contribute Availability under the Borrowing Base in excess of 15.020.0% of the Aggregate Commitments; minus
(ge) the then applicable amount of all Reserves.
The Borrowing Base shall at any time be determined by reference to the most recent Borrowing Base Certificate delivered to the Agent
pursuant to Section 7.04(i).
“Borrowing Base Certificate” means a certificate substantially
in the form agreed between the Agent and the Lead Borrower on or prior to the Closing Date (with such changes therein as may be required by the Agent to reflect the components of and Reserves against the Borrowing Base as provided for hereunder
from time to time), executed and certified as accurate and complete by a Responsible Officer of the Lead Borrower, as such form, subject to the terms hereof, may from time to time be modified as agreed by Lead Borrower and the Agent, which shall
include appropriate exhibits, schedules, supporting documentation, and additional reports as reasonably requested by the Agent in writing reasonably in advance of the deadline for delivery of such certificate.
“Business Day” means any day other than a Saturday, Sunday or
other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the jurisdiction where the Agent’s Office is located.
“Canadian Collateral” means the Collateral owned by (or, in the
event such Collateral has been foreclosed upon, immediately prior to such foreclosure that was owned by) a Canadian Guarantor.
“Canadian Defined Benefit Plan” means a Canadian Pension Plan
which contains a “defined benefit provision” as defined in subsection 147.1(1) of the ITA.
“Canadian Dollars,” and the sign “CND$” each means lawful
money of Canada.
“Canadian Dominion Account” means a special concentration
account established by a Canadian Guarantor at an Affiliate or branch of the Agent in Canada, over which the Agent has exclusive control for withdrawal purposes pursuant to the terms and provisions of this Agreement and the other Loan Documents.
“Canadian Financing” means the obligations (and commitments to
incur obligations) outstanding from time to time under (A) the Offre de prêt (Loan
Offer) (File D129013) entered into on March 9, 2012, between Investissement Québec, Tembec, Tembec Industries Inc. and Tembec Énergie SEC., as amended, amended and restated, supplemented or otherwise modified from time to time prior to the
Effective Date; (B) the Amended and Restated Credit Agreement, dated as of September 19, 2013, among Tembec, Tembec Entergy LP and Integrated Private Debt Fund III LP, as administrative agent, as amended, amended and restated, supplemented or
otherwise modified from time to time prior to the Effective Date; and (C) any Refinancing Indebtedness in respect of any of the foregoing.
“Canadian Guarantor” means each Guarantor that is incorporated
or otherwise organized under the laws of Canada or any province or territory thereof.
“Canadian Guaranty” means the guarantee of the Obligations of
each Loan Party hereunder by the Canadian Guarantors in Article III hereunder or in a supplemental guarantee in accordance
with Section 7.01(n) of this Agreement.
“Canadian Pension Event” means (a) the whole or partial
withdrawal of a Loan Party from a Canadian registered pension plan which contains a “defined benefit provision” as defined in subsection 147.1(1) of the ITA during a plan year where any additional funding obligations of the Loan Party would be
triggered by such withdrawal; (b) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan; (c) the treatment by a Governmental Authority of a Canadian Defined Benefit Plan amendment as a termination or
partial termination; or (d) the appointment of a trustee by a Governmental Authority to administer the termination, in whole or in part, of a Canadian Defined Benefit Plan.
“Canadian Pension Plan” means a pension plan that is required to
be registered under applicable Canadian federal or provincial pension benefits standards legislation, and that is sponsored, maintained or administered by any Loan Party in respect of its Canadian employees or former employees, but, for the
avoidance of doubt, does not include any statutory plans such as the Canada Pension Plan and the Quebec Pension Plan.
“Canadian Priority Payables Reserve” means, as of any date of
determination, an Availability Reserve in such amount as the Agent may determine in its Permitted Discretion to reflect amounts secured by any Liens in Canada, choate or inchoate, which rank or are capable of ranking in priority to the Liens of the
Agent, including any such amounts due and not paid for wages, vacation pay, severance pay, amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid
and remitted when due under the ITA, all amounts collected but not remitted when due under the Excise Tax Act (Canada) or otherwise on account of sales tax, goods and services tax, value added tax, harmonized sales tax, excise tax, and any other tax payable pursuant to the Excise Tax Act (Canada) or similar applicable provincial legislation, government royalties (including royalties, fees and other charges
in respect of the harvesting of timber (including stumpage fees) which a Canadian Guarantor has an obligation to remit to a Governmental Authority under applicable Law), amounts secured by Liens arising under the Forestry Workers Lien for Wages Act
(Ontario), the Woodworker Lien Act (British Columbia) or other similar applicable Law or on account of farmers’ rights under Section 81.2 of the BIA, amounts currently or past due and not paid for realty, municipal or similar taxes (to the extent
impacting personal or movable property), all amounts due and not contributed, remitted or paid to any Canadian Pension Plans (including all unfunded wind-up or solvency deficiency amounts owing in respect of any Canadian Defined Benefit Plan) as
required by the PBA relating to Canadian Pension Plans, or under the Canada Pension Plan or Quebec Pension Plan, and all amounts in respect of similar statutory or other claims, in each case, that would have or would reasonably be expected to have
priority over or rank pari passu with any Liens of the Agent in Canada now or in the
future, other than amounts included in the Canadian Wage Earner Protection Act Reserve.
“Canadian Security Agreements” means, collectively, that certain
Canadian Security Agreement, to be dated as of the Closing Date, and that certain deed of movable hypothec to be dated on or prior to the Closing Date made by the Canadian Guarantors party thereto in favor of the Agent, acting as hypothecary
representative on behalf of itself and for the benefit of the other Secured Parties, each as amended, restated, supplemented or otherwise modified from time to time.
“Canadian Subsidiary” means any Subsidiary that is incorporated
or organized under the laws of Canada or any province or territory thereof.
“Canadian Wage Earner Protection Act Reserve” means, as of any
date of determination, an Availability Reserve in such amount as the Agent may determine in its Permitted Discretion to reflect the amounts that may become due under the Wage Earner Protection Program Act (Canada) or secured by Section 81.3 or Section 81.4 of the BIA with respect to the employees of any Loan Party employed in
Canada which would give rise to a Lien with priority under applicable Law over the Liens of the Agent.
“Capital Expenditures” means, for any period, the additions to
property, plant and equipment, capitalized investment and development costs, and other capital expenditures (including capitalized software) of Holdings and its consolidated Subsidiaries that are (or should be) set forth in a consolidated statement
of cash flows of Holdings for such period prepared in accordance with GAAP.
“Capital Lease” of any Person means any lease of any property
(whether real, personal or mixed) by such Person as lessee, which lease should, in accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of such Person.
“Capital Lease Obligations” means the obligations of any Person
to pay rent or other amounts under a Capital Lease, the amount of which is required to be capitalized on the balance sheet of such Person in accordance with GAAP (with GAAP calculated, for purposes of this definition, as in effect on December 31,
2018); provided that, for the avoidance of doubt, obligations of Holdings or the
Restricted Subsidiaries, or of a special purpose or other entity not consolidated with Holdings and the Restricted Subsidiaries that (a) initially were not included on the consolidated balance sheet of Holdings as capital lease obligations and were
subsequently characterized as capital lease obligations or, in the case of such a special purpose or other entity becoming consolidated with Holdings and the Restricted Subsidiaries were required to be characterized as capital lease obligations
upon such consolidation, in either case, due to a change in accounting treatment or otherwise, or (b) were required to be characterized as capital lease obligations but would not have been required to be treated as capital lease obligations on
December 31, 2018 had they existed at that time, shall for all purposes not be treated as Capital Lease Obligations or Indebtedness.
“Capital Stock” means:
(1) in the case of a
corporation, corporate stock or shares;
(2) in the case of an
association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a
partnership or limited liability company, partnership or membership interests (whether general or limited); and
(4) any other interest or
participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Cash Collateralize” means to pledge and deposit with or deliver
to the Agent, for the benefit of the Agent, an Issuing Bank or the Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Advances, or obligations of Lenders to fund participations
in respect of either thereof (as the context may require), cash or deposit account balances or, if the applicable Issuing Bank or Swing Line Lender benefiting from such collateral shall agree in its sole discretion, other credit support, in each
case pursuant to documentation in form and substance satisfactory to (a) the Agent and (b) such Issuing Bank or the Swing Line Lender (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the
proceeds of such cash collateral and other credit support.
“Cash Dominion Period” means (a) each period beginning on the
date that Availability shall have been less than the greater of (x) $25.021.88 million and (y) 15.0% of the Loan Cap for three (3)
consecutive Business Days, and ending on the date that Availability shall have exceeded such levels, at all times, for a period of thirty (30) consecutive days, or (b) upon the occurrence of any Event of Default, the period that such Event of
Default shall be continuing. The termination of a Cash Dominion Period as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Cash Dominion Period in the event that the conditions set forth in this definition
again arise.
“Cash Equivalents” means:
(1) U.S. dollars, pounds
sterling euros, Canadian dollars, the national currency of any member state in the European Union or such other local currencies held by Holdings or a Restricted Subsidiary from time to time in the ordinary course of business;
(2) securities issued or
directly and fully guaranteed or insured by the U.S. government, Canada, Switzerland or any country that is a member of the European Union or any agency or instrumentality thereof in each case maturing not more than two years from the date of
acquisition;
(3) certificates of
deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances, in each case with maturities not exceeding one year and overnight bank deposits, in each case with any
commercial bank having capital and surplus in excess of $250.0 million and whose long-term debt is rated “A” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency);
(4) repurchase obligations
for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above;
(5) commercial paper issued
by a corporation (other than an Affiliate of Lead Borrower) rated at least “A-1” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency) and in each case maturing
within one year after the date of acquisition;
(6) readily marketable
direct obligations issued by any state of the United States of America or any political subdivision thereof or any Canadian province having at least a rating of Aa3 from Moody’s or a rating of AA- from S&P (or reasonably equivalent ratings of
another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date of acquisition;
(7) Indebtedness issued by
Persons with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s (or reasonably equivalent ratings of another internationally recognized ratings agency) in each case with maturities not exceeding two years from the date of
acquisition;
(8) investment funds
investing at least 95% of their assets in securities of the types described in clauses (1) through (7) above; and
(9) instruments equivalent
to those referred to in clauses (1) through (8) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and commonly used by corporations for Bank Products purposes in any jurisdiction outside
the United States of America to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction.
“Cash Management Bank” means any Person counterparty to a Bank
Product Document who is (x) Bank of America or any Affiliate or branch of Bank of America or (y) any other Lender or any Affiliate or branch of such Lender so long as, in the case of this clause (y), Lead Borrower and the applicable Lender (or its
Affiliate or branch) shall have delivered notice thereof to the Agent.
“CCAA” means the Companies’ Creditors Arrangement Act (Canada).
“CERCLA” means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. § 9601 et seq.), and any regulations promulgated thereunder.
“CFC” means a “controlled foreign corporation” within the
meaning of Section 957 of the Code.
“Change in Law” has the meaning specified in Section 2.11.
“Change of Control” means the occurrence, after the date of this
Agreement, of any of the following:
(i) the sale, lease or transfer (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all the assets of Holdings and its Subsidiaries, taken as a
whole, to any person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), other than to Holdings or any of its Subsidiaries in a transaction not prohibited by Section 7.05;
(ii) Holdings becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any person or group (within
the meaning of Section 13(d) or Section 14(d) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the
Exchange Act), in a single transaction or in a related series of transactions, by way of merger, consolidation, amalgamation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange
Act, or any successor provision), of more than 35% of the total voting power of the voting interest in Holdings’ Equity Interests, in each case, other than an acquisition where the holders of the voting interest in Holdings’ Equity Interests as
of immediately prior to such acquisition hold 35% or more of the voting interest in the Equity Interests of the ultimate parent of Holdings or successor thereto immediately after such acquisition (provided no holder of the voting
interest in Holdings’ Equity Interests as of immediately prior to such acquisition owns, directly or indirectly, more than 35% of the voting interest in Holdings’ Equity Interests immediately after such acquisition);
(iii) Holdings, together
with its direct or indirect Wholly Owned Subsidiaries, ceases to own 100% of the voting interest in any Borrower; or
(iv) during any period of
12 consecutive months, a majority of the members of the Board of Directors of Holdings shall cease to be composed of Continuing Directors; or
(v) a “Change of Control”
(as defined in any Senior Debt Document) shall have occurred under any Senior Debt Document or any other outstanding Indebtedness of Holdings or its Subsidiaries in an aggregate principal amount in excess of $25,000,000.
“Charges” means all federal, state, provincial, county, city,
municipal, local, foreign or other governmental taxes (including taxes owed to the PBGC at the time due and payable), levies, assessments, duties, charges, claims or encumbrances owed by any Loan Party and upon or relating to (a) the Obligations,
(b) the Collateral, (c) the employees, payroll, income, capital or gross receipts of any Loan Party, (d) any Loan Party’s ownership or use of any properties or other assets, or (e) any other aspect of any Loan Party’s business.
“Closing Date” means the date that each of the conditions set
forth in Section 5.02 is satisfied or waived by the Agent and the Lenders.
“CME” means CME Group Benchmark Administration Limited.
“CoBank” means CoBank, ACB and its successors.
“Code” means the Internal Revenue Code of 1986, as amended from
time to time.
“Collateral” means all assets and interests in assets and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien is granted by such Person in favor of the Agent under any of the Collateral Documents.
“Collateral Access Agreement” means an agreement reasonably
satisfactory in form and substance to the Agent executed by (a) a bailee or other Person in possession of Collateral, and (b) any landlord of Real Estate leased by any Loan Party, pursuant to which such Person (i) acknowledges the Agent’s Lien on
the Collateral, (ii) releases or subordinates such Person’s Liens on the Collateral held by such Person or located on such Real Estate, (iii) provides the Agent with access to the Collateral held by such bailee or other Person or located in or on
such Real Estate, (iv) as to any landlord, provides the Agent with a reasonable time to remove and/or sell and dispose of the Collateral from such Real Estate, and (v) makes such other agreements with the Agent as the Agent may reasonably require
related to the use and access of the Collateral.
“Collateral Documents” means the U.S. Security Agreement, the
Canadian Security Agreements, the Blocked Account Agreements, the Intellectual Property Security Agreements and all similar agreements entered into guarantying payment of, or granting a Lien upon property as security for payment of, the
Obligations.
“Commitment” means a Revolving Credit Commitment.
“Commitment Percentage” means, with respect to any Lender at any
time, the percentage of the Revolving Credit Facility represented by such Lender’s Revolving Credit Commitment at such time. If the Revolving Credit Commitment of each Lender to make Advances and the obligation of the Issuing Banks to make L/C
Credit Extensions have been terminated pursuant to Section 8.01 or if the Revolving Credit Commitments have expired, then the Commitment Percentage of each Lender in respect of the Revolving Credit Facility shall be determined based on the
Commitment Percentage of such Lender in respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments.
“Committed Advance Notice” means a notice of (a) a Revolving
Credit Borrowing, (b) a conversion of Advances from one Type to the other, or (c) a continuation of Term SOFR Advances, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A-1 or such
other form as may be approved by the Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Agent), appropriately completed and signed by a Responsible Officer of the applicable Borrower.
“Committed Borrowing” means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type, and, in the case of Term SOFR Advances, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
“Compliance Period” has the meaning specified in Section
7.03(b).
“Concentration Account” has the meaning specified in Section
7.01(i).
“Confidential Information” means certain non-public,
confidential or proprietary information and material disclosed, from time to time, either orally, in writing, electronically or in some other form by Holdings in connection with the Loan Documents. Confidential Information shall include, but not
be limited to non-public, confidential or proprietary information, trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, documentation, screens, icons, schematics, software programs, source documents and other
MIS related information; contracts, customer lists, financial information, financial forecasts, sales and marketing plans and information and business plans, products and product designs; projections and results; ideas, designs and artwork for all
types of marketing, advertising, public relations and commerce (including ideas, designs and artwork related to the World Wide Web and any Web Site of Holdings or any Subsidiary); designs; advertising, strategies, plans and results; sourcing
information; vendor lists, potential product labeling and marking ideas; all materials including, without limitation, documents, drawings, samples, sketches, designs, and any other information concerning, color palette and color standards furnished
to a Recipient by Holdings or any Subsidiary; customer base(s); and other non-public information relating to Holdings’ or any Subsidiary’s business.
“Conforming Changes” means, with respect to the use,
administration of or any conventions associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR” and “Interest Period”, timing and frequency of
determining 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”, timing of
borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the reasonable discretion of the Agent (in consultation with the Lead Borrower), to reflect the adoption and
implementation of such applicable rate(s) and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent reasonably determines (in consultation with the Lead Borrower) that adoption
of any portion of such market 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 Agent reasonably determines (in consultation with the Lead
Borrower) is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“Connection Income Taxes” means Other Connection Taxes that are
imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated” and any derivative thereof each means, with
reference to the accounts or financial reports of any Person, the consolidated accounts or financial reports of such Person and each Restricted Subsidiary of such Person determined in accordance with GAAP, including principles of consolidation,
consistent with those applied in the preparation of the Consolidated financial statements of Holdings referred to in Section 6.01(f).
“Consolidated Depreciation and Amortization Expense” means, with
respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of intangible assets and deferred financing fees and amortization of unrecognized prior service costs and actuarial gains
and losses related to pensions and other post-employment benefits, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
“Consolidated EBITDA” means, as of any date of determination,
the EBITDA of Holdings and its Restricted Subsidiaries for the most recently ended four full Fiscal Quarters for which internal financial statements are available, on a consolidated basis, calculated on a pro forma basis consistent with the calculations made under the definition of Consolidated Secured Net Leverage Ratio,
Incurrence Fixed Charge Coverage Ratio or Pro Forma Compliance, as applicable.
“Consolidated Funded Debt” means, as of any date of
determination, all indebtedness (including Capital Lease Obligations but excluding all accounts payable incurred in the ordinary course of business) of Holdings and its Restricted Subsidiaries on a Consolidated basis that would (or would be
required to) appear as liabilities for long-term Debt, short-term Debt, current maturities of Debt, and other similar interest-bearing obligations on a Consolidated balance sheet of Holdings and its Restricted Subsidiaries in accordance with GAAP
(other than Indebtedness incurred under Section 7.02(a)(ii)(29)).
“Consolidated Interest Expense” means, with respect to any
Person for any period, the sum, without duplication, of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted in computing Consolidated Net Income (including the interest component
of Capital Lease Obligations and net payments and receipts (if any) pursuant to interest rate Hedging Obligations, amortization of deferred financing fees and original issue discount, debt issuance costs, commissions, fees and expenses,
expensing of any bridge, commitment or other financing fees and non-cash interest expense attributable to movement in mark to market valuation of Hedging Obligations or other derivatives (in each case permitted hereunder) under GAAP); plus
(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; plus
(3) commissions, discounts, yield and other fees and charges Incurred in connection with any securitization financing which are payable to Persons other than Holdings and the Restricted Subsidiaries; minus
(4) interest income for
such period.
For purposes of this definition, interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by Holdings to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP.
“Consolidated Net Income” means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis; provided, however, that:
(1) any net after-tax
extraordinary, nonrecurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses or charges shall be excluded;
(2) any severance expenses, relocation expenses, restructuring expenses, curtailments or modifications to pension and post-retirement employee benefit plans, excess pension charges, any expenses related to
any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternate uses and fees, expenses or charges relating to facilities closing costs, acquisition integration costs, facilities opening costs, project
start-up costs, business optimization costs, signing, retention or completion bonuses, expenses or charges related to any issuance, repurchase, retirement or acquisition of Equity Interests, Investment, acquisition, disposition,
recapitalization or issuance, repayment, refinancing, amendment or modification of Indebtedness (in each case, whether or not successful), and any fees, expenses, charges or change in control payments related to the Transactions (including any
costs relating to auditing prior periods, any transition-related expenses, and transaction expenses incurred before, on or after the Closing Date), in each case, shall be excluded; provided that the aggregate amount excluded from
Consolidated Net Income pursuant to this clause (2), together with (x) the aggregate amount added back to EBITDA pursuant to clause (6) of the definition thereof and (y) for purposes of any calculation of EBITDA on a pro forma basis, the aggregate amount of operating expense reductions and other operating improvements or synergies included in
EBITDA for such Test Period, shall not exceed 20% of EBITDA in any Test Period (determined after giving effect to any such adjustments);
(3) effects of purchase
accounting adjustments (including the effects of such adjustments pushed down to such Person and such Subsidiaries and including, without limitation, the effects of adjustments to (A) Capital Lease Obligations or (B) any other deferrals of
income) in amounts required or permitted by GAAP, resulting from the application of purchase accounting or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded;
(4) the Net Income for such
period shall not include the cumulative effect of a change in accounting principles during such period;
(5) any net after-tax income or loss from disposed, abandoned, transferred, closed or discontinued operations or fixed assets and any net after-tax gains or losses on disposal of disposed, abandoned,
transferred, closed or discontinued operations or fixed assets shall be excluded; provided that notwithstanding any classification of any Person, business, assets or operations as discontinued operations because a definitive agreement
for the sale, transfer or other disposition in respect thereof has been entered into, such Person shall not exclude any such net after-tax income or loss or any such net after-tax gains or losses attributable thereto until such sale, transfer
or other disposition has been consummated;
(6) any net after-tax gains
or losses (less all fees and expenses or charges relating thereto) attributable to business dispositions or asset dispositions other than in the ordinary course of business (as determined in good faith by management of Holdings) shall be
excluded;
(7) any net after-tax gains
or losses (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of indebtedness, Hedging Obligations or other derivative instruments shall be excluded;
(8) (a) the Net Income for such period of any Person that is not a Subsidiary of
such Person, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be included only to the extent of the amount of dividends or distributions or other payments paid in cash (or to the extent
converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period and (b) the Net Income for
such period shall include any dividend, distribution or other payment in cash (or to the extent converted into cash) received by the referent Person or a Subsidiary thereof (other than an Unrestricted Subsidiary of such referent Person) from
any Person in excess of, but without duplication of, the amounts included in subclause (a);;
(9) [Reserved];
(10) an amount equal to the amount of Tax Distributions actually made to any parent or equity holder of such Person in respect of such period in accordance with Section 7.02(b)(ii)(11) shall be
included as though such amounts had been paid as income taxes directly by such Person for such period;
(11) any impairment charges
or asset write-offs, in each case pursuant to GAAP, and the amortization of intangibles and other fair value adjustments arising pursuant to GAAP shall be excluded;
(12) any non-cash expense
realized or resulting from stock option plans or employee benefit plans, or grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other rights shall be excluded;
(13) any (a) non-cash
compensation charges, (b) costs and expenses after the Closing Date related to employment of terminated employees, or (c) costs or expenses realized in connection with or resulting from stock appreciation or similar rights, stock options or other
rights existing on the Closing Date of officers, directors and employees, in each case of such Person or any Restricted Subsidiary, shall be excluded;
(14) accruals and reserves
that are established or adjusted within 12 months after the Closing Date and that are so required to be established or adjusted in accordance with GAAP or as a result of adoption or modification of accounting policies shall be excluded;
(15) non-cash gains, losses,
income and expenses resulting from fair value accounting required by the applicable standard under GAAP and related interpretations shall be excluded;
(16) (A) any currency
translation gains and losses related to currency remeasurements of Indebtedness, and any net loss or gain resulting from hedging transactions for currency exchange risk and (B) other long-term and/or non-current assets and liabilities (in each
case as determined in accordance with GAAP), and any net loss or gain resulting from hedging transactions relating thereto (and in any case of this clause (B), including intercompany obligations and obligations with respect to pensions and other
retirement benefits, and environment-related liabilities), shall in each case be excluded;
(17) (a) to the extent
covered by insurance and actually reimbursed, or, so long as such Person has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (i) not
denied by the applicable carrier in writing within 180 days and (ii) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with
respect to liability or casualty events or business interruption shall be excluded and (b) amounts in respect of which such Person has determined that there exists reasonable evidence that such amounts will in fact be reimbursed by insurance in
respect of lost revenues or earnings in respect of liability or casualty events or business interruption shall be included (with a deduction for amounts actually received up to such estimated amount, to the extent included in Consolidated Net
Income in a future period); and
(18) non-cash charges for
deferred tax asset valuation allowances shall be excluded.
“Consolidated Non-Cash Charges” means, with respect to any
Person for any period, the non-cash expenses (other than Consolidated Depreciation and Amortization Expense) of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person for such period on a consolidated basis and
otherwise determined in accordance with GAAP; provided that if any such non-cash expenses represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be
subtracted from EBITDA in such future period to the extent paid, but excluding from this proviso, for the avoidance of doubt, amortization of a prepaid cash item that was paid in a prior period.
“Consolidated Secured Net Leverage Calculation Date” has the
meaning specified in the definition of “Consolidated Secured Net Leverage Ratio”.
“Consolidated Secured Net Leverage Ratio” means, with respect to
any Person, at any date, the ratio of (i) Secured Indebtedness of such Person and its Restricted Subsidiaries as of such date of calculation (determined on a consolidated basis in accordance with GAAP), less the amount of cash and Cash Equivalents
in excess of any Restricted Cash that would be stated on the balance sheet of such Person and its Restricted Subsidiaries and held by such Person and its Restricted Subsidiaries as of such date of determination to (ii) Consolidated EBITDA of such
Person for the four full fiscal quarters for which internal financial statements are available immediately preceding such date on which such additional Indebtedness is Incurred.
In the event that Holdings or any Restricted Subsidiary Incurs, repays,
repurchases or redeems any Indebtedness or issues, repurchases or redeems Disqualified Capital Stock or Preferred Stock subsequent to the commencement of the period for which the Consolidated Secured Net Leverage Ratio is being calculated but prior
to the event for which the calculation of the Consolidated Secured Net Leverage Ratio is made (the “Consolidated Secured Net Leverage Calculation Date”), then the Consolidated Secured Net Leverage Ratio shall be calculated giving pro forma effect to such Incurrence, repayment, repurchase or redemption of Indebtedness, or such
issuance, repurchase or redemption of Disqualified Capital Stock or Preferred Stock as if the same had occurred at the beginning of the applicable four-quarter period; provided that, for purposes of clause (6)(B) of the definition of
“Permitted Lien”, Lead Borrower may elect pursuant to an Officer’s Certificate delivered to Agent to treat all or any portion of the commitment under any Indebtedness as being Incurred at the time of delivery of such Officer’s Certificate, in which
case any subsequent Incurrence of Indebtedness under such commitment shall not be deemed, for purposes of this calculation, to be an Incurrence at such subsequent time, and to the extent Lead Borrower elects pursuant to such an Officer’s
Certificate delivered to Agent to treat all or any portion of the commitment under any Indebtedness as being Incurred at the time of delivery of such Officer’s Certificate, solely for purposes of clause (6)(B) of the definition of “Permitted Lien”,
Lead Borrower shall deem all or such portion of such commitment or such Indebtedness, as applicable, as having been Incurred and to be outstanding for purposes of calculating the Consolidated Secured Net Leverage Ratio for any period in which Lead Borrower makes any such election and for any subsequent period until such
commitments or such Indebtedness, as applicable, are no longer outstanding or until
Lead Borrower elects to withdraw such election.
For purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business, and any operational changes, business realignment
projects or initiatives, restructurings or reorganizations that Holdings or any Restricted Subsidiary has determined to make and/or has made during the four-quarter reference period or subsequent to such reference period and on or prior to or
simultaneously with the Consolidated Secured Net Leverage Calculation Date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, discontinued operations and other
operational changes, business realignment projects or initiatives, restructurings or reorganizations (and the change of any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day
of the four-quarter reference period; provided that, notwithstanding any classification of any Person, business, assets or operations as discontinued operations because a definitive agreement for the sale, transfer or other disposition in
respect thereof has been entered into, Holdings shall not make such computations on a pro forma basis for any such classification for any period until such sale, transfer or other disposition has been consummated. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or
into Holdings or any Restricted Subsidiary since the beginning of such period shall have consummated any pro forma event that would have required adjustment pursuant to this definition, then the Consolidated Secured Net Leverage Ratio shall be calculated giving pro forma effect thereto for such period as if such pro
forma event had occurred at the beginning of the applicable four-quarter period. If since the beginning of such period any Restricted Subsidiary is designated an Unrestricted
Subsidiary or any Unrestricted Subsidiary is designated a Restricted Subsidiary, then the Consolidated Secured Net Leverage Ratio shall be calculated giving pro
forma effect thereto for such period as if such designation had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of Holdings. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of Holdings as set forth in an Officer’s Certificate,
to reflect operating expense reductions and other operating improvements or synergies reasonably expected to result from the applicable event within 12 months of the date the applicable event is consummated; provided that the aggregate
amount of operating expense reductions and other operating improvements or synergies for the period for which the Consolidated Secured Net Leverage Ratio is being calculated, together with (x) the aggregate amount excluded from Consolidated Net
Income pursuant to clause (2) of the definition thereof and (y) the aggregate amount added to EBITDA pursuant to clause (6) of the definition thereof, shall not exceed 20% of Consolidated EBITDA for such period (determined after giving effect to
any such adjustments).
If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated as if the
rate in effect on the Consolidated Secured Net Leverage Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term
in excess of 12 months). Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of Holdings to be the rate of interest implicit in such Capital
Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a factor of a prime or similar rate, an 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
chosen as Holdings may designate.
For purposes of this definition, any amount in a currency other than Dollars will be converted to Dollars based on the average
exchange rate for such currency for the most recent twelve month period immediately prior to the date of determination in a manner consistent with that used in calculating Consolidated EBITDA for the applicable period.
“Consolidated Taxes” means, with respect to any Person for any
period, the provision for taxes based on income, profits or capital, including, without limitation, state franchise and similar taxes, foreign withholding taxes (including penalties and interest related to such taxes or arising from tax
examinations) and any Tax Distributions taken into account in calculating Consolidated Net Income.
“Consolidated Total Indebtedness” means, as of any date of
determination, an amount equal to the sum (without duplication) of (1) the aggregate principal amount of all outstanding Indebtedness of Holdings and the Restricted Subsidiaries (excluding any undrawn letters of credit) consisting of bankers’
acceptances and Indebtedness for borrowed money, plus (2) the aggregate amount of all outstanding Disqualified Capital Stock of Holdings and the Restricted Subsidiaries and all Preferred Stock of Restricted Subsidiaries, with the amount of
such Disqualified Capital Stock and Preferred Stock equal to the greater of their respective voluntary or involuntary liquidation preferences, in each case determined on a consolidated basis in accordance with GAAP.
“Constitutive Documents” means, with respect to any Person, the
certificate of incorporation or registration (including, if applicable, certificate of change of name), articles of incorporation or association, memorandum of association, charter, bylaws, certificate of limited partnership, partnership agreement,
trust agreement, joint venture agreement, certificate of formation, articles of organization, limited liability company operating or members agreement, joint venture agreement or one or more similar agreements, instruments or documents constituting
the organization or formation of such Person.
“Contingent Obligations” means, with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not contingent:
(1) to purchase any such
primary obligation or any property constituting direct or indirect security therefor,
(2) to advance or supply
funds:
(a) for the purchase or
payment of any such primary obligation; or
(b) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; or
(3) 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 against loss in respect thereof.
“Continuing Director” means, as of any date of determination,
any member of the Board of Directors of Holdings who (1) was a member of such Board of Directors on the first day of the applicable 12 consecutive month period referenced in clause (D) of the definition of “Change in Control” or (2) was approved,
appointed, nominated or elected to such Board of Directors by a majority of the Continuing Directors who were members of such Board of Directors at the time of such approval, appointment, nomination or election.
“Contractual Obligations” means, with respect to any Person, any
security issued by such Person or any document or undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject.
“Convert,” “Conversion” and “Converted” each
refers to a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.02 or 2.09.
“Copyrights” has the meaning specified in the applicable Collateral Documents.
“Cost” means the lower of cost or market value of Inventory,
based upon the Loan Parties’ accounting practices, known to the Agent, which practices are in effect on the Effective Date, with such changes as permitted by GAAP, as such calculated cost is determined from invoices received by the Loan Parties,
the Loan Parties’ purchase journals or the Loan Parties’ stock ledger.
“Covenant Trigger” shall have the meaning specified in Section 7.03(b).
“Covenant Trigger Date” shall have the meaning specified in Section 7.03(b).
“Credit Extension” means each of the following: (a) an Advance
made or to be made to any Borrower; and (b) with respect to any Letter of Credit, any issuance, extension of the expiry date, or increase in the amount thereof, for the account of any Borrower.
“Credit Insurance Reserves” means an amount established from
time to time in Agent’s Permitted Discretion in an amount up to, as of any date of determination, the next scheduled premium(s) payable as of such date (or anticipated to be payable in connection with any renewal thereof) with respect to the Loan
Parties’ credit insurance policy or policies.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”),
a rate per annum equal to SOFR for the day that is five (5) U.S. Government Securities Business Day prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day, or (ii) if such SOFR Rate Day is not a U.S.
Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published on the Federal Reserve Bank of New York’s website (or any successor source).
“DDA” means each checking, savings or other demand deposit
account maintained by any of the Loan Parties. All funds in each DDA (other than an Excluded Account) shall be conclusively presumed to be Collateral and proceeds of Collateral and the Agent and the Lenders shall have no duty to inquire as to the
source of the amounts on deposit in any DDA.
“Debtor Relief Laws” means the Bankruptcy Code of the United
States, the BIA, the CCAA, the Winding-up and Restructuring Act (Canada) 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, Canada or other applicable jurisdictions
from time to time as now and hereafter in effect and affecting the rights of creditors generally including, without limitation, any law of any jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors against
it.
“Default” means an event which would constitute an Event of
Default but for the requirement that notice be given or time elapse, or both.
“Default Rate” means (a) when used with respect to
Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) 2.0% per annum plus, in the case of Obligations consisting of Base Rate Loans, the Applicable Margin for Base Rate Loans set forth
in Level III of the definition of Applicable Margin; provided, however, that with respect to a Term SOFR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin for Term SOFR
Loans set forth in Level III of the definition of Applicable Margin) otherwise applicable to such Advance plus 2.0% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Letter of Credit Fee plus 2.0% per annum.
“Defaulting Lender” means, subject to Section
2.14(b), any Lender that, as determined by the Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Advances or participations in respect of Letters of Credit or Swing Line Advances, within
three Business Days of the date required to be funded by it hereunder, unless such Lender notifies the Agent in writing that such failure is the result of such Lender's determination that one or more conditions precedent to funding (which
conditions precedent, together with the applicable default, if any, shall be specifically identified in such writing) has not been satisfied, (b) has notified Lead Borrower or the Agent in writing that it does not intend to comply with its funding
obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit, unless such writing or public statement states that such position is based
on such Lender's determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied, (c) has
failed, within three Business Days after request by the Agent, to confirm in writing in a manner reasonably satisfactory to the Agent that it will comply with its funding obligations; provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation of the Agent or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a Bail-In Action or a proceeding under
any Debtor Relief Law, (ii) had a receiver, interim receiver, monitor, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian
appointed for it, or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the
jurisdiction of courts within the United States and Canada or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or
disaffirm any contracts or agreements made with such Lender.
“Designated Borrower Joinder Agreement” means, with respect to
any Designated Borrower, an agreement substantially in the form of Exhibit I hereto signed (or such other form as shall be approved by the Agent and the Lead Borrower (such approval not to be unreasonably withheld or delayed)) by such
Designated Borrower and the Lead Borrower.
“Designated Borrowers” has the meaning set forth in the preamble
to this Agreement.
“Designated Non-cash Consideration” means the
Fair Market Value (as determined in good faith by Lead Borrower) of non-cash consideration received by Holdings or a Restricted Subsidiary in connection with a Disposition that is so designated as Designated Non-cash Consideration pursuant to an
Officer’s Certificate, setting forth such valuation, less the amount of Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.
“Designated Preferred Stock” means Preferred
Stock of Holdings or any direct or indirect parent of Holdings (other than Disqualified Capital Stock), that is issued for cash (other than to Holdings or any of its Subsidiaries or an employee stock ownership plan or trust established by Holdings
or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate, on the issuance date thereof.
“Dilution” means, as of any date of
determination, a percentage, based upon the experience of the immediately prior 12 months, that is the result of dividing the Dollar Equivalent of (a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with
respect to Eligible Accounts, Eligible Foreign Accounts and Eligible Letter of Credit-Backed Foreign Accounts during such period, by (b) the Loan Parties’ billings with respect to Eligible Accounts, Eligible Foreign Accounts and Eligible Letter of
Credit-Backed Foreign Accounts during such period.
“Dilution Reserve” means, as of any date of
determination, an amount sufficient to reduce the advance rate against Eligible Accounts, Eligible Foreign Accounts or Eligible Letter of Credit-Backed Foreign Accounts, as applicable, by 1 percentage point for each percentage point by which
Dilution is in excess of 5%. If the Dilution does not exceed 5%, the Dilution Reserve shall be zero dollars ($0).
“Disposition” means with respect to any property, any sale,
lease, license, sale and leaseback, assignment, conveyance, transfer or other disposition thereof (including by means of a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law).
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 which, by its terms (or by the terms of any security into which it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event:
(1) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale),
(2) is convertible or
exchangeable for Indebtedness or Disqualified Capital Stock of such Person or any of its Restricted Subsidiaries, or
(3) is redeemable at the option of the holder thereof, in whole or in part (other than solely as a result of a change of control or asset sale), in each case prior to 91 days after the Termination Date; provided,
however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be
Disqualified Capital Stock; provided, further, however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of Holdings or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by such Person in order to satisfy applicable statutory or regulatory obligations or as a result of such
employee’s termination, death or disability; provided, further, that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of Capital Stock that is
not Disqualified Capital Stock shall not be deemed to be Disqualified Capital Stock.
“Documents” means all “documents,” as such term is defined in
the UCC or “documents of title” as such term is defined in the PPSA, as applicable, now owned or hereafter acquired by any Loan Party, wherever located.
“Dollar Equivalent” means, at any time, (a) with respect to any
amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Agent or the applicable Issuing Bank, as the case may be, at such
time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.
“Dollars,” “dollars” and the sign “$” each means lawful
money of the United States.
“Domestic Subsidiary” means any direct or indirect Subsidiary of
Holdings that is organized under the laws of the United States, any state thereof or the District of Columbia.
“Dominion Account” means the U.S. Dominion Account and the
Canadian Dominion Account.
“EBITDA” means, with respect to any Person for any period, the
Consolidated Net Income of such Person and its Restricted Subsidiaries for such period plus, without duplication, to the extent the same was deducted in calculating Consolidated Net Income:
(1) Consolidated Taxes; plus
(2) EBITDA Fixed Charges and costs of surety bonds in connection with financing activities; plus
(3) Consolidated Depreciation and Amortization Expense; plus
(4) Consolidated Non-Cash Charges; plus
(5) any expenses or charges (other than Consolidated Depreciation and Amortization Expense) related to any issuance of Equity Interests, Investment, acquisition, disposition, recapitalization or the
incurrence, modification or repayment of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to the Transactions and (ii)
any amendment or other modification of the Senior Debt or other Indebtedness; plus
(6) business optimization expenses and other restructuring charges, reserves or expenses (which, for the avoidance of doubt, shall include, without limitation, the effect of facility closures, facility
consolidations, retention, severance, systems establishment costs, contract termination costs, future lease commitments and excess pension charges); provided that the aggregate amount added back to EBITDA pursuant to this clause (6),
together with (x) the aggregate amount excluded from Consolidated Net Income pursuant to clause (2) of the definition thereof and (y) for purposes of any calculation of EBITDA on a pro forma basis, the aggregate amount of operating expense reductions and other operating improvements or synergies included in EBITDA for such Test Period, shall not
exceed 20% of EBITDA in any Test Period (determined after giving effect to any such adjustments); plus
(7) any costs or expenses related to environmental remediation, pension or other post-employment benefit obligations; plus
(8) any costs or expense incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement,
to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of Lead Borrower or any Loan Party or net cash proceeds of an issuance of Equity Interests of Lead Borrower (other than Disqualified Capital
Stock) solely to the extent that such net cash proceeds are excluded from the calculation of Excluded Contributions; plus
(9) with respect to any joint venture that is not a Subsidiary and solely to the extent relating to any net income referred to in clause (8) of the definition of “Consolidated Net Income,” an amount equal to
the proportion of those items described in clauses (1) and (2) above relating to such joint venture corresponding to Holdings’ and the Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as
if such joint venture were a Subsidiary); plus
(10) [reserved]; and
less, without duplication, to the extent the same increased
Consolidated Net Income,
(11) non-cash items
increasing Consolidated Net Income for such period (excluding the recognition of deferred revenue or any items which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced EBITDA in any prior period
and any items for which cash was received in a prior period); and
(12) any cash payments made
during such period related to environmental remediation, pension or other post-employment benefit obligations.
“EBITDA Fixed Charges” means, with respect to any Person for any
period, the sum, without duplication, of: (1) Consolidated Interest Expense (excluding amortization or write-off of deferred financing costs) of such Person for such period, and (2) all cash dividend payments (excluding items eliminated in
consolidation) on any series of Preferred Stock or Disqualified Capital Stock of such Person and its Restricted Subsidiaries.
“EEA Financial Institution” means (a) any credit institution or
investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this
definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“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 administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means December 10, 2020.
“Eligible Accounts” means those Accounts created by a Loan Party
in the ordinary course of its business, that arise out of such Loan Party’s sale of goods or rendition of services, that comply with each of the representations and warranties respecting Eligible Accounts made in the Loan Documents, and that are
not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by the Agent in the Agent's Permitted Discretion to address the results of any
field examination performed by (or on behalf of) the Agent from time to time after the Effective Date. In determining the amount to be included, Eligible Accounts shall be calculated net of deposits and prepayments from customers with a balance of
Eligible Accounts owing to any Loan Party, unapplied cash, Taxes, discounts, credits, allowances, short-pays, chargebacks and rebates. Eligible Accounts shall not include the following:
(a) Accounts that the Account Debtor has failed to pay within 120 days of the original invoice date or within 60 days of the original due date, or Accounts with selling terms of more than 180 days; provided
that up to $5,000,000 in the aggregate of Accounts that remain unpaid more than 120 days after the original invoice date shall not be deemed ineligible as a result of this clause (a) so long as such Accounts shall not remain unpaid for more
than 180 days after the original invoice date;
(b) Accounts owed by an
Account Debtor (or its Affiliates) where 50% or more of all Accounts owed by that Account Debtor (or its Affiliates) are deemed ineligible under clause (a) above;
(c) Accounts with respect
to which the Account Debtor is an Affiliate of any Loan Party or an employee or agent of any Loan Party or any Affiliate of any Loan Party;
(d) Accounts arising in a
transaction wherein goods are placed on consignment or are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, a bill and hold, or any other terms by reason of which the payment by the Account Debtor may be conditional;
(e) Accounts that are not
payable in Canadian Dollars, Dollars or Euros (or such other currencies as may be determined to be acceptable by the Agent in its sole discretion from time to time (and subject to such sublimits with respect thereto as may be established by the
Agent in its sole discretion from time to time));
(f) Accounts with respect
to which the Account Debtor either (i) does not maintain its chief executive office in the United States or Canada, (ii) is not organized under the laws of the United States or any state thereof or Canada or any province or territory thereof, or
(iii) is the government of any foreign country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof;
(g) Accounts with respect
to which the Account Debtor is either (i) the United States or any department, agency, or instrumentality of the United States (exclusive, however, of Accounts with respect to which the applicable Loan Parties have complied, to the reasonable
satisfaction of the Agent, with the Assignment of Claims Act, 31 USC §3727), (ii) any state of the United States, or (iii) a Governmental Authority of Canada or any province or territory thereof and any Crown Corporation (exclusive, however, of
Accounts with respect to which Loan Parties have complied, to the reasonable satisfaction of the Agent, with the Financial Administration Act (Canada) or other applicable Law);
(h) Accounts with respect
to which the Account Debtor is a creditor of a Loan Party, has or has asserted a right of recoupment or setoff, or has disputed its obligation to pay all or any portion of the Account, solely to the extent of such claim, right of recoupment or
setoff, or dispute;
(i) Accounts with respect to an Account Debtor whose total obligations owing to Loan Parties exceed 15% (or, with respect to the Account Debtors identified in writing by Holdings to Agent prior to the
Effective Date, 27.5%) (such percentage, as applied to a particular Account Debtor, being subject to reduction by Agent in its Permitted Discretion (or, in the case of immediately preceding parenthetical, in its sole discretion) if the
creditworthiness of such Account Debtor deteriorates) of all Eligible Accounts, to the extent of the obligations owing by such Account Debtor in excess of such percentage; provided, that, in each case, the amount of Eligible Accounts
that are excluded because they exceed the foregoing percentage shall be determined by Agent based on all of the otherwise Eligible Accounts prior to giving effect to any eliminations based upon the foregoing concentration limit;
(j) Accounts with respect
to which the Account Debtor is subject to an insolvency proceeding, is not solvent, has gone out of business, or as to which any Loan Party has received notice of an imminent insolvency proceeding or a material impairment of the financial
condition of such Account Debtor;
(k) Accounts, the
collection of which, the Agent, in its Permitted Discretion, believes to be doubtful, including by reason of the Account Debtor's financial condition;
(l) Accounts that are not
subject to a valid and perfected first priority Lien in favor of the Agent to secure the Obligations;
(m) Accounts with respect
to which the goods giving rise to such Account have not been shipped and billed to the Account Debtor or an invoice consistent with the Loan Party’s and the Account Debtor’s reasonable commercial practices has not been prepared and sent to the
applicable Account Debtor (other than up to $2,000,000 of Accounts in respect of the sale of chips, bark or other by-products to third party Account Debtors that would otherwise be excluded pursuant to this clause (m));
(n) Accounts with respect
to which the Account Debtor is a Sanctioned Person;
(o) Accounts that represent
the right to receive progress payments or other advance billings that are due prior to the completion of performance by the applicable Loan Party of the subject contract for goods or services;
(p) Accounts owned by a
target acquired in connection with a Permitted Acquisition, until the completion of an appraisal and field examination with respect to such target, in each case, reasonably satisfactory to the Agent (which appraisal and field examination may be
conducted prior to the closing of such Permitted Acquisition);
(q) Accounts that arise
with respect to sales of goods that are delivered on a cash-on-delivery basis;
(r) Accounts arising from
the sale of Eligible FOB Inventory;
(s) Accounts to the extent
such Accounts exceed any credit limit under the Loan Parties’ Sales Credit Policies; or
(t) Accounts of any Account Debtor which has Accounts subject to any Permitted Supplier Receivables Program.Sale Program, unless the purchaser under each Permitted Supplier Receivables Sale Program to which any of such
Account Debtor’s Accounts is subject has entered into documentation satisfactory to the Agent acknowledging that such purchaser has no rights to such Accounts prior to the sale thereof, and acknowledging the Agent’s Lien on any such Accounts
prior to the consummation of each such sale.
“Eligible Assignee” means (a) a Lender; (b) an Affiliate or
branch of a Lender; (c) an Approved Fund; and (d) any other financial institution, finance company, institutional lender or Funds approved by (i) the Agent, (ii) in the case of any assignment of a Revolving Credit Commitment, the Issuing Banks and
the Swing Line Lender, and (iii) unless an Event of Default has occurred and is continuing, the Lead Borrower (each such approval in clauses (i) and (ii) not to be unreasonably withheld or delayed). No Loan Party or any controlled Affiliate
thereof shall be an Eligible Assignee with respect to any Revolving Credit Advance or any Revolving Credit Commitment.
“Eligible Credit Insurance-Backed Foreign Accounts” means
Accounts that satisfy all of the criteria of the definition of “Eligible Accounts” except clause (f) thereof; provided that such Account is supported by credit insurance that is in all respects (including as to form, substance, amount,
insurer, and terms of coverage and payment) reasonably satisfactory to the Agent.
“Eligible FOB Inventory” means Inventory that satisfy all of the
criteria of “Eligible Inventory” except clauses (c) and (f) thereof, that has been shipped within the past 45 days (or, with respect to Inventory to be shipped to Account Debtors identified in writing by Holdings to Agent prior to the Effective
Date, 65 days) from a location of a Loan Party within the United States or Canada on “FOB” destination terms (i) to a location of a customer in a Specified Country or (ii) a location of a customer not in a Specified Country and that in the case of
this clause (ii), is subject to a negotiable document showing Agent (or, with the consent of the Agent (such consent not to be unreasonably withheld, conditioned or delayed), the applicable Loan Party) as consignee or notify party and bears a
conspicuous notation on its face of the Agent’s security interest therein (which document is in the possession of the Agent or such other Person as the Agent shall reasonably approve), and, in each case, will upon arrival at its destination, give
rise to an Eligible Credit Insurance-Backed Foreign Account or an Eligible Letter-of-Credit Backed Foreign Account; provided such Inventory (A) is fully insured in a manner reasonably satisfactory to the Agent, including marine cargo
insurance, (B) is shipped by a common carrier that is not affiliated with the purchaser and is not, to the knowledge of the Lead Borrower, the target of any Sanctions or on any specially designated nationals list maintained by OFAC and (C) at any
time (and for so long as) the Borrowers fail to maintain Availability at least equal to $65.0 million, is being handled by a customs broker, freight forwarder or other handler that has delivered a lien waiver in form and substance reasonably
satisfactory to the Agent (provided, that the Loan Parties shall use commercially reasonable efforts to obtain such lien waivers irrespective of whether Availability is less than $65.0 million).
“Eligible Foreign Accounts” means Accounts that satisfy all of
the criteria of “Eligible Accounts” except clause (f) thereof, but do not qualify as an Eligible Credit Insurance-Backed Foreign Account or Eligible Letter of Credit-Backed Foreign Account; provided that the Account Debtor with respect
thereto maintains its chief executive office in a Specified Country.
“Eligible Inventory” means, as of the date of determination thereof, Inventory of a Loan Party consisting of (i) finished goods, (ii) raw materials, or (iii) work in process consisting of kiln rough and green rough
that is located at a location designated as a “kiln rough and green rough location" in the most recently delivered inventory appraisal, that in each case complies with each of the representations and warranties respecting Eligible Inventory made in
the Loan Documents, and that is not excluded as ineligible by virtue of one or more of the excluding criteria set forth below; provided, that such criteria may be revised from time to time by the Agent in the Agent’s Permitted Discretion to
address the results of any field examination or appraisal performed by (or on behalf of) the Agent from time to time after the Effective Date. An item of Inventory shall not be included in Eligible Inventory if:
(a) a Loan Party does not
have good, valid, and marketable title thereto;
(b) a Loan Party does not have actual and exclusive possession thereof (either directly or through a bailee or agent of a Loan Party); provided that (x) up to $9.0 million in the aggregate of
Inventory of Loan Parties held by processors may (subject to not otherwise being excluded pursuant to this definition) constitute Eligible Inventory as of any date of determination to the extent that the Agent has received a Collateral Access
Agreement from the applicable processor and to the extent that (notwithstanding the provision of such Collateral Access Agreement) an Inventory Reserve has been established in respect of all accounts payable owing by Loan Parties to the
applicable processor and (y) Inventory of Loan Parties held by third party haulers for no more than two (2) Business Days may (subject to not otherwise being excluded pursuant to this definition) constitute Eligible Inventory as of any date of
determination;
(c) (x) it is not located at one of the locations in Canada or in the continental United States set forth on Schedule 1.01E (as such Schedule 1.01E may be amended from time to time with the
prior written consent of the Agent (such consent not to be unreasonably withheld, conditioned or delayed)) to this Agreement (other than Inventory that is in-transit from one such location to another such location), or (y) it is otherwise
located at a location with less than $100,000 of Inventory in the aggregate (other than, in the case of each of the foregoing clauses (x) and (y), Inventory that is in-transit to, or located at, ports or railyards located in the United States
or Canada waiting to be loaded onto vessels (including railcars) for transport to customers); provided that the aggregate amount of such Inventory (and Inventory described in clause (f) of this definition) included in the Borrowing Base
as of any date of determination shall not contribute Availability under the Borrowing Base in excess of $13,000,000);
(d) [reserved];
(e) it is located on real
property leased by a Loan Party or in a contract warehouse, in each case, unless either (1) it is subject to a Collateral Access Agreement executed by the lessor or warehouseman, as the case may be, and it is segregated or otherwise separately
identifiable from goods of others, if any, stored on the premises or (2) the Agent has established a Landlord Reserve with respect to such location;
(f) it is the subject of a bill of lading or other document of title (other than Inventory that is in-transit to, or located at, ports waiting to be loaded onto vessels for transport to customers located
outside of the United States and Canada; provided that the aggregate amount of such Inventory (and Inventory described in clause (c) of this definition) included in the Borrowing Base as of any date of determination shall not contribute
Availability under the Borrowing Base in excess of $13,000,000);
(g) it is not subject to a
valid and perfected first priority Lien in favor of the Agent to secure the Obligations;
(h) it consists of goods
returned or rejected by a Loan Party’s customers;
(i) it consists of goods
that are obsolete or slow moving, restrictive or custom items, work-in-process (except as described in clause (iii) of the first sentence of this definition of Eligible Inventory), tooling, goods for display, supplies (including goods that
constitute packaging and shipping materials) or spare parts or supplies used or consumed in the Loan Parties’ business (other than supplies and spare parts in an aggregate amount that would not contribute Availability under the Borrowing Base in
excess of $15,000,000 at any time)), bill and hold goods, defective or unsaleable goods, "seconds" (other than cull (secondary fiber) that can be repulped in an aggregate amount not to exceed $1,500,000) or Inventory acquired on consignment;
(j) it is subject to third
party trademark, licensing or other proprietary rights, unless Agent is reasonably satisfied that such Inventory can be freely sold by Agent on and after the occurrence of an Event of a Default despite such third party rights;
(k) it was acquired in
connection with a Permitted Acquisition, until the completion of an appraisal and field examination of such Inventory, in each case, reasonably satisfactory to Agent (which appraisal and field examination may be conducted prior to the closing of
such Permitted Acquisition);
(l) it consists of trees or other forest resources that (i) have not been harvested from a forest (i.e., timber-to-be-cut) or (ii) have been harvested
from a forest but have not been transported from such forest to a public municipal road or other public access point which allows such trees or other forest resources to be transported to a mill or other processing facility (it being
understood that trees (but not other forest resources) with an aggregate book value not in excess of $15,000,000 at any time and which have been harvested from a forest and which have been transported from such forest to a road or other
access point to which the applicable Loan Party has access rights which allows such trees to be transported to a mill or other processing facility may constitute Eligible Inventory subject to not being excluded from Eligible Inventory by
virtue of the other criteria set forth herein (but that no such trees at such locations in excess of such amount may constitute Eligible Inventory at any time));;
(m) it consists of
hazardous chemicals, fuel inventory or any similar item as determined by Agent, or constitutes goods that Agent determines may be transported or sold only with licenses that are not readily available; or
(n) it is the subject of a
prepayment in full that has been received from a customer.
“Eligible Letter-of-Credit Backed Foreign Accounts” means
Accounts that satisfy all of the criteria of the definition of “Eligible Accounts” except clause (f) thereof; provided that such Account is supported by an irrevocable letter of credit (assigned to, or delivered to and directly drawable by,
the Agent) that is in all respects reasonably satisfactory to the Agent; it being understood that any such supporting letter of credit arising 180 days or more following the Closing Date shall specifically designate Bank of America or its
affiliates as the advising bank or negotiating bank.
“EMU Legislation” means the legislative measures of the European
Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Law” means any Requirement of Law relating to (a)
the generation, use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Substances, (b) pollution or the protection of the environment, health and safety or natural resources or (c) occupational safety and
health, industrial hygiene, land use or the protection of plants or animals, including, without limitation, CERCLA, in each case as amended from time to time, and including the regulations promulgated and the rulings issued from time to time
thereunder.
“Equipment” means all “equipment,” as such term is defined in
the UCC or the PPSA, as applicable, now owned or hereafter acquired by any Loan Party, wherever located.
“Equity Interests” means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“ERISA” means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any trade or business (whether or not
incorporated) which is a member of a controlled group of which a Loan Party is a member or which is under common control with a Loan Party within the meaning of Section 414 of the Code, and the regulations promulgated and rulings issued thereunder.
“ERISA Event” means a reportable event with respect to a Plan
within the meaning of §4043 of ERISA, other than those events as to which the thirty (30)-day notice period has been waived.
“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 to time.
“Euro” mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
“Events of Default” has the meaning specified in Section
8.01.
“Exchange Act” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
“Excluded Account” means, collectively, (i) DDAs that are
established solely for the purpose of, and are used exclusively for, funding payroll, payroll taxes, any other taxes required to be collected, remitted or withheld (including federal and state withholding taxes (including the employer’s share
thereof)) and other compensation and benefits to employees, (ii) DDAs, commodity accounts and securities accounts (a) that are held or maintained at a financial institution located outside of the United States and Canada and/or (b) that are owned
by a Foreign Subsidiary (other than any DDA, commodity account or securities account owned by a Canadian Guarantor), so long as, in each case of this clause (ii), no such account shall be used by any Loan Party as a collection account, (iii) any
DDA which is a zero balance account which sweeps into a Blocked Account on each Business Day, (iv) any DDA which is used for disbursements by Lead Borrower or any Loan Party and into which no proceeds of Collateral or any other collections or any
Advances are received, (v) DDAs, commodity accounts and securities accounts the balances of which are comprised solely of cash, cash equivalents or other assets that Holdings or any Subsidiary thereof holds in trust or as an escrow fiduciary for
another Person which is not Lead Borrower or a Guarantor and (vi) other DDAs, commodity accounts and securities accounts with amounts on deposit that do not have an individual daily balance on deposit in excess of $1,000,000, or in the aggregate
with each other account described in this clause (vi), in excess of $2,500,000.
“Excluded Canadian Subsidiaries” means each Canadian Subsidiary
that is not permitted to become a Guarantor hereunder pursuant to the terms of any Canadian Financing to which it is a party, or is otherwise restricted or prohibited as a subsidiary or guarantor of a party to any Canadian Financing; provided
that if any such Canadian Subsidiary is released from all such restrictions due to the repayment, termination or amendment of all applicable Canadian Financings after the Effective Date, then such Subsidiary shall cease to be an “Excluded Canadian
Subsidiary” for all purposes under the Loan Documents. As of the Amendment No. 1 Effective Date, Excluded Canadian Subsidiaries shall be comprised of each Canadian Subsidiary other than (i) Rayonier A.M. Canada G.P. / Rayonier A.M. Canada Société
En Nom Collectif, (ii) Rayonier A.M. Canada Industries Inc. / Industries Rayonier A.M. Canada Inc., (iii) Rayonier A.M. Construction Company Inc. / Rayonier A.M. Compagnie de Construction Inc. and (iv) RYAM Canada Holdings ULC / Gestion RYAM Canada
SRI.
“Excluded Contributions” means, at any time the cash and Cash
Equivalents received by Holdings after the Effective Date from:
(a) contributions to its
common equity capital, and
(b) the sale (other than to
a Subsidiary of Holdings or to any Subsidiary management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Capital Stock (other than Disqualified Capital Stock and Designated Preferred Stock) of
Holdings,
in each case designated as Excluded Contributions pursuant to an
Officer’s Certificate (but excluding any amounts distributed pursuant to Section 7.02(b)).
“Excluded Assets” has the meaning assigned to such term in the
U.S. Security Agreement or the Canadian Security Agreements, as applicable.
“Excluded Subsidiary” means:
(a) each Unrestricted
Subsidiary;
(b) each Subsidiary that is
not a Wholly Owned Subsidiary (for so long as such Subsidiary remains a non-Wholly Owned Subsidiary);
(c) each Subsidiary that is
prohibited from guaranteeing the Obligations hereunder by applicable Law, rule or regulation or that would require consent, approval, license or authorization of a Governmental Authority (unless such consent, approval, license or authorization
has been received);
(d) each Subsidiary that is
prohibited by any Contractual Obligation existing on the Closing Date or on the date such Subsidiary becomes a Subsidiary (to the extent not incurred in connection with becoming a Subsidiary and in each case for so long as such restriction or any
replacement or renewal thereof is in effect) from guaranteeing the Obligations hereunder;
(e) (x) any Foreign
Subsidiary (other than any Canadian Subsidiary) and (y) any Domestic Subsidiary of a Foreign Subsidiary (other than a Canadian Subsidiary) that is a CFC;
(f) any Excluded Canadian
Subsidiary;
(g) [reserved];
(h) any Subsidiary that is
not a Material Subsidiary and that taken together with all other Wholly Owned Subsidiaries being excluded pursuant to this clause (h), as of the last day of the fiscal quarter of Holdings’ most recently ended, did not have assets with a value in
excess of 5.0% of the Total Assets or revenues representing in excess of 5.0% of Total Revenues (including third party revenues but excluding intercompany revenues) of Holdings and its Wholly Owned Subsidiaries on a consolidated basis as of such
date;
(i) any other Subsidiary (including any Subsidiary that is a FSHCO) if the provision of the Collateral or a guarantee of the Obligations hereunder by such Subsidiary could reasonably be expected to result in
material and adverse tax consequences to Holdings or any of its Subsidiaries, as determined in good faith by Holdings; provided that this clause (i) shall not apply to any Canadian Subsidiary unless the material and adverse tax
consequence of such Canadian Subsidiary providing a guarantee results from a Change in Law after the Closing Date; and
(j) any Subsidiary with
respect to which Holdings reasonably agrees in writing that the cost or other consequences of providing a guarantee is likely to be excessive in relation to the value to be afforded to the Lenders thereby and which does not guarantee any other
Indebtedness of any Loan Party in an aggregate principal amount in excess of $25,000,000;
provided, that, notwithstanding the foregoing, (x) no Subsidiary
that is an issuer or guarantor in respect of the 2024 Notes or 2026 Notes shall constitute an Excluded Subsidiary and (y) no Borrower or direct parent entity of a Borrower shall be an Excluded Subsidiary.
“Excluded Swap Obligation” means, with respect to any Loan
Party, any Hedging Obligation if, and to the extent that, all or a portion of the Obligations of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Hedging Obligation (or any Obligations thereof) is or
becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof). If a Hedging Obligation arises under a master agreement
governing more than one swap, such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to swaps for which such Obligation or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or
with respect to any 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 political subdivision 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 an Advance, L/C Advance or Commitment
pursuant to a law in effect on the date on which (i) such Lender acquires the applicable interest in the applicable Commitment or, in the case of an Advance or L/C Advance not acquired by such Lender pursuant to a prior Commitment, the date on
which such Lender acquires the applicable interest in the applicable Advance or L/C Advance (other than, in each case, pursuant to an assignment request by the Lead Borrower under Section 10.12) or (ii) such Lender changes its Lending
Office, except in each case to the extent that, pursuant to Section 4.02(a)(iii) or Section 4.02(c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the
applicable interest in the applicable Commitment, Advance or L/C Advance or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 4.02(e) and (d) any Taxes
imposed pursuant to FATCA.
“Existing Credit Agreement” has the meaning
specified in the definition of “Refinancing”.
“Existing Letter of Credit” means each letter of credit listed
on Schedule 1.01C.
“Existing Hedge Agreement” means each Swap Contract listed on Schedule
1.01D.
“Facility” means the Revolving Credit Facility, the Swing Line
Sublimit, or the Letter of Credit Sublimit, as the context may require.
“Fair Market Value” means, with respect to any asset or
property, the price which could be negotiated in an arm’s-length transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction.
“Farm Credit Lender” means a lending institution organized and
existing pursuant to the provisions of the Farm Credit Act of 1971 (as may be amended from time to time) and under the regulation of the Farm Credit Administration.
“FATCA” means Sections 1471 through 1474 of the Code, as in
effect on the date hereof (and any amended or successor version that is substantively comparable and not materially more onerous to comply with), any present or future Treasury Regulations issued thereunder or interpretations thereof, any
agreements entered into pursuant to Section 1471(b)(1) of the Code, as in effect on the date hereof (or any amended or successor version described above), and any intergovernmental agreement, treaty or convention among Governmental Authorities (and
any related legislation, rules or official administrative guidance) implementing such Sections of the Code.
“Federal Funds Rate” means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the
Agent; provided that if the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
“Fee Letter” means (a) the fee letter dated as of December 8,
2020 among the Lead Borrower and Bank of America and (b) each other fee letter entered into from time to time by the Lead Borrower and the Swing Line Lender or an Issuing Bank.
“Fernandina Beach Facility” means the real property located at
Foot of Gum Street, Fernandina Beach, Florida 32035, excluding any real property leased or licensed as of the Effective Date to Lignotech Florida, Eight Flags or Coast Chips Inc. or any of their respective Affiliates.
“Fernandina Cogeneration Project” means a project, or a series
of related projects, under which a Person (other than Holdings or any of its Subsidiaries) would fund, construct and operate a combined heat and power facility on a leased portion of the Fernandina Beach Facility, and sell steam and heated water to
Rayonier Performance Fibers, LLC (or one or more other Subsidiaries), for use at the
Fernandina Beach Facility, for an expected period of approximately twenty (20) years, together with the applicable agreements to implement such projects.
“FILO Term Loans” has the meaning specified in Section
2.06(b).
“Fiscal Month” means any of the monthly accounting periods of
Holdings and its Subsidiaries.
“Fiscal Quarter” means any quarter in any Fiscal Year, the
duration of such quarter being defined in accordance with GAAP applied consistently with that applied in the preparation of Holdings’ financial statements referred to in Section 6.01(f), as set forth on a schedule delivered to the Agent.
“Fiscal Year” means a fiscal year of Holdings and its
Subsidiaries, as set forth on a schedule delivered to the Agent.
“Fixed Charge Coverage Ratio” means, for any period, the ratio
of (a) Consolidated EBITDA for such period minus the sum of (i) Unfinanced Capital Expenditures plus (ii) the portion of taxes based on income actually paid in cash and provisions for cash income taxes, to (b) Fixed Charges for such
period.
“Fixed Charges” means, for any period, the sum of (a) any
scheduled amortization payments paid or payable during such period on all Indebtedness of Holdings and its Restricted Subsidiaries (including the principal component of all obligations in respect of all Capital Lease Obligations), plus (b)
consolidated cash Interest Expense of Holdings and its Restricted Subsidiaries for such period, plus (c) the amount of Restricted Payments to be made at such time and previously made in cash in reliance on the Payment Conditions during such
period, in each case, on a consolidated basis in accordance with GAAP.
“Foreign Lender” means a Lender that is not a United States
Person.
“Foreign Subsidiary” means any direct or indirect Subsidiary of
Holdings that is not a Domestic Subsidiary.
“Forestry Joint Ventures” means (i) Hearst Forest Management
Inc., (ii) Clegue Forest Management Inc., (iii) Abitibi River Forest Management Inc., (iv) Nipissing Forest Management Inc. or (v) any similar joint venture formed after the Effective Date that is not prohibited by the terms of this Agreement.
“Fronting Exposure” means, at any time there is a Defaulting
Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Commitment Percentage of the outstanding L/C Obligations in respect of Letters of Credit issued by such Issuing Bank other than L/C Obligations as to which such Defaulting
Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Commitment Percentage of Swing Line Advances
made by the Swing Line Lender other than Swing Line Advances as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“FSHCO” means any Domestic Subsidiary that owns no material
assets other than Equity Interests of one or more Foreign Subsidiaries (other than a Foreign Subsidiary which is a Canadian Guarantor) that are CFCs and/or one or more FSHCOs.
“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 and similar extensions of credit in the ordinary course of its activities.
“GAAP” means generally 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 the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting profession in the United States, applied on a basis consistent (except for changes concurred in by Holdings’ independent public accountants) with the most recent audited
consolidated financial statements of Holdings and its Subsidiaries delivered pursuant to Section 7.04.
“Governmental Authority” means any nation or government, any
state, province, territory, city, municipal entity or other political subdivision thereof, and any governmental, executive, legislative, judicial, administrative or regulatory agency, department, authority, instrumentality, commission, board or
similar body, whether federal, state, provincial, territorial, local or foreign.
“Governmental Authorization” means any authorization, approval,
consent, franchise, license, covenant, order, ruling, permit, certification, exemption, notice, declaration or similar right, undertaking or other action of, to or by, or any filing, qualification or registration with, any Governmental Authority,
in each case having the force of law.
“Guarantee” means the guarantee of the Obligations by the Loan
Parties in Article III hereunder or in a supplemental guarantee in accordance with Section 7.01(n) of this Agreement.
“Guarantied Obligations” means as to any Person, any obligation
of such Person guarantying or otherwise having the economic effect of guarantying any Indebtedness, lease, dividend, or other obligation (“primary obligation”) of any other Person (the “primary obligor”) in any manner, including any
obligation or arrangement of such Person to (a) purchase or repurchase any such primary obligation, (b) advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet condition of the primary obligor, (c) 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, (d) protect the beneficiary of such arrangement from loss (other than product warranties given in the ordinary course of business), or (e) indemnify the
owner of such primary obligation against loss in respect thereof; provided, however, that the term Guarantied Obligations shall not include endorsements of instruments for deposit or collection in the ordinary course of business or
standard contractual indemnities. The amount of any Guarantied Obligations at any time shall be deemed to be an amount equal to the lesser at such time of (x) the stated or determinable amount of the primary obligation in respect of which such
Guarantied Obligations is incurred, and (y) the maximum amount for which such Person may be liable pursuant to the terms of the instrument embodying such Guarantied Obligations, or, if not stated or determinable, the maximum reasonably anticipated
liability (assuming full performance) in respect thereof.
“Guaranties” means the U.S. Guaranty, the Canadian Guaranty and
any other guaranty executed by any Guarantor in favor of Agent, for the benefit of the Secured Parties, in respect of the Obligations.
“Guarantor Payment” has the meaning specified in Section
3.07(a).
“Guarantors” means (x) Holdings, (y) each Borrower (as to the
other Loan Parties’ Obligations) and (z) each other Restricted Subsidiary that is a party hereto or executes a supplement hereto in accordance with Section 7.01(n), in favor of the Agent for the benefit of the Secured Parties, in connection
with the transactions contemplated by this Agreement and the other Loan Documents; provided, that upon the release or discharge of such Person from its Guaranty in accordance with this Agreement, such Person shall cease to be a Guarantor.
“Hazardous Substance” means (i) any hazardous substance or toxic
substance as such terms are presently defined or used in § 101(14) of CERCLA (42 U.S.C. § 9601(14)), in 33 U.S.C. § 1251 et. seq. (Clean Water Act), or 15 U.S.C. § 2601 et. seq. (Toxic Substances Control Act) or
applicable Environmental Law in Canada; and (ii) as of any date of determination, any additional substances or materials which are hereafter incorporated in or added to the definition of “hazardous substance” or “toxic substance” or similar
definitions for purposes of CERCLA, 33 U.S.C. § 1251 et. seq. (Clean Water Act), or 15 U.S.C. § 2601 et. seq. (Toxic Substances Control Act) or applicable Environmental Law in Canada.
“Hedge Bank” means any Person counterparty to (I) an Existing
Hedge Agreement (but solely with respect to such Existing Hedge Agreement) or (II) any other Swap Contract who is (x) Bank of America or any Affiliate or branch of Bank of America or (y) any other Lender or any Affiliate or branch of such Lender so
long as, in the case of this clause (y), Holdings and the applicable Lender (or its Affiliate or branch) shall have delivered notice thereof to the Agent; provided that any such notice may designate any Person as a Hedge Bank with respect
to all Hedging Obligations arising under a single master agreement.
“Hedging Obligations” means, with respect to any Person, the
obligations of such Person under any Swap Contract.
“HMT” has the meaning specified in the definition of “Sanctioned
Entity”.
“Holdings” has the meaning specified in the preamble to this
Agreement.
“Incur” means issue, assume, guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be
deemed to be Incurred by such Person at the time it becomes a Subsidiary. “Incurred” and “Incurrence” shall have like meanings.
“Incurrence Fixed Charge Calculation Date”
has the meaning specified in the definition of “Incurrence Fixed Charge Coverage Ratio”.
“Incurrence Fixed Charge Coverage Ratio” means for any period, the ratio of Consolidated EBITDA for such period to EBITDA Fixed Charges for such
period.
In the event that Holdings or any Restricted
Subsidiary Incurs, repays, repurchases or redeems any Indebtedness or issues, repurchases or redeems Disqualified Capital Stock or Preferred Stock subsequent to the commencement of the period for which the Incurrence Fixed Charge Coverage Ratio is
being calculated but prior to the event for which the calculation of the Incurrence Fixed Charge Coverage Ratio is made (the “Incurrence Fixed Charge Calculation Date”), then the Incurrence Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such Incurrence,
repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of Disqualified Capital Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period; provided
that Lead Borrower may elect pursuant to an Officer’s Certificate delivered to Agent to treat all or any portion of the commitment under any Indebtedness as being Incurred at such time, in which case any subsequent Incurrence of Indebtedness under
such commitment shall not be deemed, for purposes of this calculation, to be an Incurrence at such subsequent time, and to the extent Lead Borrower elects pursuant to an Officer’s Certificate delivered to Agent to treat all or any portion of the commitment under any Indebtedness as being Incurred Lead Borrower shall deem all or such
portion of such commitment or such Indebtedness, as applicable, as having been Incurred and to be outstanding for purposes of calculating the Incurrence Fixed Charge Coverage Ratio for any period in which Lead Borrower makes any such election and
for any subsequent period until such commitments or such Indebtedness, as applicable, are no longer outstanding or until Lead Borrower elects to withdraw such election.
For purposes of making the computation referred to
above, Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and discontinued operations (as determined in accordance with GAAP), in each case with respect to an operating unit of a business, and any operational changes, business realignment projects or initiatives, restructurings or reorganizations that
Holdings or any Restricted Subsidiary has determined to make and/or made during the applicable Test Period or subsequent to such Test Period and on or prior to or simultaneously with the date of calculation of the Incurrence Fixed Charge Coverage
Ratio (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations, discontinued operations and other operational changes, business realignment projects or initiatives, restructurings or reorganizations (and the
change of any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of such Test Period; provided that, notwithstanding any classification of any Person, business, assets or operations as discontinued operations
because a definitive agreement for the sale, transfer or other disposition in respect thereof has been entered into, Lead Borrower shall not make such computations on a pro forma basis for any such classification for any period until such sale, transfer or other disposition has been
consummated. If since the beginning of such Test Period any Person that subsequently became a Restricted Subsidiary or was merged with or into Holdings or any Restricted Subsidiary since the beginning of such period shall have consummated any pro forma event, that would have required adjustment
pursuant to this definition, then the Incurrence Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such Test Period as if such pro forma event had occurred at the beginning of the applicable Test Period. If since the beginning of such Test Period any Restricted Subsidiary is designated an Unrestricted
Subsidiary or any Unrestricted Subsidiary is designated a Restricted Subsidiary, then the Incurrence Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such Test Period as if such designation had occurred at the beginning of the applicable Test Period.
For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of Holdings. Any such pro forma calculation may include adjustments appropriate, in the reasonable good faith determination of Holdings as set forth in an Officer’s Certificate,
to reflect operating expense reductions and other operating improvements or synergies reasonably expected to result from the applicable event within 12 months of the date the applicable event is consummated; provided that the aggregate
amount of operating expense reductions and other operating improvements or synergies for the period for which the Incurrence Fixed Charge Coverage Ratio is being calculated, together with (x) the aggregate amount excluded from Consolidated Net
Income pursuant to clause (2) of the definition thereof and (y) the aggregate amount added to EBITDA pursuant to clause (6) of the definition thereof, shall not exceed 20% of Consolidated EBITDA for such period (determined after giving effect to
any such adjustments).
If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest on such Indebtedness shall be calculated as if the
rate in effect on the Incurrence Fixed Charge Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess
of 12 months). Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of Holdings to be the rate of interest implicit in such Capital Lease
Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period. Interest on Indebtedness that may
optionally be determined at an interest rate based upon a factor of a prime or similar rate, an 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
chosen as Holdings may designate.
For purposes of this definition, any amount in a currency other than Dollars will be converted to Dollars based on the average
exchange rate for such currency for the most recent twelve month period immediately prior to the date of determination in a manner consistent with that used in calculating Consolidated EBITDA for the applicable period.
“Indebtedness” or “Debt” means, with respect to any
Person:
(1) the principal of any
indebtedness of such Person, whether or not contingent, (a) in respect of borrowed money, (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement
agreements in respect thereof), (c) representing the deferred and unpaid purchase price of any property (except any such balance that constitutes (i) a trade payable or similar obligation to a trade creditor Incurred in the ordinary course of
business, (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and (iii) liabilities accrued in the ordinary course of business), which purchase price is due more than
twelve months after the date of placing the property in service or taking delivery and title thereto, (d) in respect of Capital Lease Obligations, or (e) representing any Hedging Obligations, if and to the extent that any of the foregoing
indebtedness would appear as a liability on a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(2) to the extent not
otherwise included, any obligation of such Person to be liable for, or to pay, as obligor, guarantor or otherwise, the obligations referred to in clause (1) of another Person (other than by endorsement of negotiable instruments for collection in
the ordinary course of business); and
(3) to the extent not otherwise included, Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is assumed by such Person); provided, however,
that the amount of such Indebtedness will be the lesser of: (a) the Fair Market Value (as determined in good faith by Lead Borrower) of such asset at such date of determination, and (b) the amount of such Indebtedness of such other Person;
provided, however, that, notwithstanding the foregoing,
Indebtedness shall be deemed not to include (1) Contingent Obligations incurred in the ordinary course of business and not in respect of borrowed money; (2) deferred or prepaid revenues; (3) purchase price holdbacks in respect of a portion of the
purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller; (4) [reserved]; (5) trade and other ordinary course payables, accrued expenses and intercompany liabilities arising in the ordinary course of
business; (6) obligations in respect of Bank Products; (7) in the case of Holdings and the Restricted Subsidiaries (x) all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made
in the ordinary course of business and (y) intercompany liabilities in connection with cash management, tax and accounting operations of Holdings and the Restricted Subsidiaries; and (8) any obligations under Hedging Obligations; provided
that such agreements are entered into for bona fide hedging purposes of Holdings or the Restricted Subsidiaries (as determined in good faith by the Board of Directors or senior management of Holdings whether or not accounted for as a hedge in
accordance with GAAP) and, in the case of any foreign exchange contract, currency swap agreement, futures contract, option contract or other similar agreement, such agreements are related to business transactions of Holdings or the Restricted
Subsidiaries entered into in the ordinary course of business and, in the case of any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement, such agreements substantially correspond in terms of notional amount, duration and interest rates, as applicable, to Indebtedness of Holdings
or the Restricted Subsidiaries Incurred without violation of this Agreement.
Notwithstanding anything in this Agreement to the contrary, Indebtedness shall not include, and shall be calculated without giving
effect to, the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of
accounting for any embedded derivatives created by the terms of such Indebtedness; and any such amounts that would have constituted Indebtedness under this Agreement but for the application of this sentence shall not be deemed an Incurrence of
Indebtedness under this Agreement.
“Indemnified Taxes” means all (a) Taxes, other than Excluded
Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Independent Financial Advisor” means an accounting, appraisal
or investment banking firm or consultant, in each case of nationally recognized standing, that is, in the good faith determination of Holdings, qualified to perform the task for which it has been engaged.
“Insured Dilution” means, as of any date of determination, a
percentage, based upon the experience of the immediately prior 12 months, that is the result of dividing the Dollar Equivalent of (a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to Loan
Parties’ Eligible Credit Insurance-Backed Foreign Accounts during such period, by (b) such Loan Parties’ billings with respect to Eligible Credit Insurance-Backed Foreign Accounts during such period.
“Insured Dilution Reserves” means, as of any date of
determination, an amount sufficient to reduce the advance rate against Eligible Credit Insurance-Backed Foreign Accounts by 1 percentage point for each percentage point by which Dilution is in excess of 2.5%. If the Insured Dilution does not
exceed 2.5%, the Insured Dilution Reserve shall be zero dollars ($0).
“Intellectual Property” means any and all Patents, Copyrights
and Trademarks.
“Intellectual Property Security Agreements” means, collectively,
any and all Copyright Security Agreements, Patent Security Agreements and Trademark Security Agreements, made in favor of the Agent, on behalf of itself and the Secured Parties, by each Loan Party signatory thereto, as amended from time to time.
“Interest Expense” means, with respect to any Person for any
fiscal period, interest expense of such Person determined in accordance with GAAP for the relevant period ended on such date.
“Interest Period” means, for each Term SOFR Loan comprising part
of the same Borrowing, the period commencing on the date of such Type of Advance, the date of the Conversion of any Advance into such Type of an Advance or the date of the continuation of such Advance and ending on the last day of the period
selected by the applicable Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by such Borrower
pursuant to the provisions below. The duration of each such Interest Period shall be 1, 3 or 6 months or such other period that is twelve months or less
requested by the applicable Borrower in each case as such Borrower
may, upon notice received by the Agent not later than 12:00 noon (New York City time) on the third Business Day prior to the first day of such Interest Period, select; provided, however, that:
(i) no Borrower may select
any Interest Period which ends after the Termination Date;
(ii) Interest Periods
commencing on the same date for Advances comprising part of the same Borrowing shall be of the same duration;
(iii) whenever the last day
of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, in the case of any Interest Period for a Term SOFR
Loan, that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day;
(iv) a Borrower may request in a Committed Advance Notice an Interest Period of a duration other than 1, 3, or 6 months (but in no event longer than 12 months) for a Term SOFR Loan and the Interest Period for
such Term SOFR Loan shall be for such period, if, and only if, the Agent determines Term SOFR for the tenor of such Interest Period and no Lenders notify the Agent pursuant to Section 2.09(a)(ii) that Term SOFR for such Interest Period
will not adequately reflect the cost to the Lenders of making, funding or maintaining their respective Term SOFR Loans for such Interest Period; if both of the preceding conditions are not satisfied with respect to such requested Interest
Period, the duration of the requested Interest Period shall be the alternative specified in the Committed Advance Notice, or, if no alternative Interest Period is selected, 6 months; and
(v) any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period.
“Inventory” shall have the meaning provided in the UCC or, as applicable, the PPSA, and shall also include, without limitation, all: (a) goods which (i) are leased by a Person as lessor, (ii) are held by a Person for
sale or lease or to be furnished under a contract of service, (iii) are furnished by a Person under a contract of service, or (iv) consist of raw materials, work in process, or materials used or consumed in a business (including spare parts and
supplies); (b) goods of said description in transit; (c) goods of said description which are returned, repossessed or rejected; and (d) packaging, advertising, and shipping materials related to any of the foregoing.
“Inventory Reserves” means, without duplication of any other
Reserve, such reserves as the Agent in its Permitted Discretion after consultation with the Lead Borrower deems necessary or appropriate to establish and maintain with respect to Eligible Inventory and Eligible FOB Inventory, including (a) Landlord
Reserves, and (b) reserves in respect of amounts owing to any third party processors holding Inventory of any Loan Party for past due rent.
“Investment Grade Securities” means:
(1) securities issued or
directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof (other than Cash Equivalents),
(2) securities that have a
rating equal to or higher than Baa3 (or equivalent) by Moody’s and BBB- (or equivalent) by S&P, but excluding any debt securities or loans or advances between and among Holdings and its Subsidiaries,
(3) investments in any fund
that invests exclusively in investments of the type described in clauses (1) and (2) of this definition which fund may also hold material amounts of cash pending investment and/or distribution, and
(4) corresponding
instruments in countries other than the United States customarily utilized for high quality investments and in each case with maturities not exceeding two years from the date of acquisition.
“Investments” means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit and advances to customers and commission, travel and similar advances
to officers, employees and consultants made in the ordinary course of business and any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in
order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other
Person and investments that are required by GAAP to be classified on the balance sheet of such Person in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other
property. For purposes of the definition of “Unrestricted Subsidiary” and Section 7.02(b):
(1) “Investments” shall include the portion (proportionate to Holdings’ equity interest in such Subsidiary (other than Lead Borrower)) of the Fair Market Value (as determined in good faith by Holdings) of the
net assets of such Subsidiary at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Holdings shall be deemed to
continue to have a permanent “Investment” in an Unrestricted Subsidiary equal to an amount (if positive) equal to:
(a) its “Investment” in
such Subsidiary at the time of such redesignation, less
(b) the portion
(proportionate to its equity interest in such Subsidiary) of the Fair Market Value (as determined in good faith by Holdings) of the net assets of such Subsidiary at the time of such redesignation; and
(2) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value (as determined in good faith by Holdings) at the time of such transfer, in each case as determined in good faith by the Board of Directors of Holdings.
“IRS” means the United States Internal Revenue Service.
“ISDA Definitions” means the 2006 ISDA Definitions published by
the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International
Swaps and Derivatives Association, Inc. or such successor thereto.
“ISP” shall mean, with respect to any Letter of Credit, the
“International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issue” means, with respect to any Letter of Credit, either to
issue, or to extend the expiry of, or to renew, or to increase the amount of, such Letter of Credit, and the term “Issued” or “Issuance” shall have corresponding meanings.
“Issuing Bank” means Bank of America, CoBank, PNC Bank or any
other Lender which agrees to become, and is designated as an Issuing Bank under Section 2.06(c) (which, for the avoidance of doubt, includes any 2024 Issuing Bank) or any Affiliate or branch thereof as agreed to from time to time by Lead Borrower
and such Issuing Bank, that may from time to time Issue Letters of Credit for the account of Holdings or any of its Subsidiaries.
“Issuing Commitment” means, as to any Issuing Bank, the amount
set forth opposite such Issuing Bank’s name on Schedule 1.01A under the caption “Issuing Commitment”, as such amount may be reduced or increased pursuant to the terms hereof.
“ITA” means Income Tax Act (Canada) and any applicable provincial equivalent.
“Joinder Agreement” means (a) with respect to the joinder of a
Domestic Subsidiary pursuant to Section 7.01(n), a joinder agreement substantially in the form of the applicable Exhibit to the U.S. Security Agreement and (b) with respect to the joinder of a Subsidiary organized under the laws of Canada
(or and province or territory thereof) pursuant to Section 7.01(n), a joinder agreement substantially in the form of the applicable Exhibit to the Canadian Security Agreement.
“Joint Lead Arrangers” means (i) BofA Securities, Inc., CoBank and PNC
Capital Markets LLC, as joint lead arrangers and joint bookrunners. for the Revolving Facility Commitments incurred on the Closing Date and (ii) BofA Securities, Inc. and PNC
Capital Markets LLC, as joint lead arrangers and joint bookrunners for the 2024 Revolving Facility Commitments incurred on the Amendment No. 3 Effective Date.
“Joint Venture” means any Person (other than a Subsidiary) a
portion (but not all) of the Capital Stock of which is owned directly or indirectly by Holdings or a Subsidiary thereof and which is engaged in a business that is similar to or complementary with the business of Holdings and its Subsidiaries as
permitted under this Agreement.
“Judgment Currency” has the meaning specified in Section
10.20.
“Junior Indebtedness” means (a) unsecured Indebtedness for
borrowed money of Holdings or any Restricted Subsidiary (other than intercompany indebtedness between Loan Parties), (b) any Indebtedness of Holdings or any Restricted Subsidiary which is by its terms subordinated in right of payment or lien
priority to the Obligations and (c) the 2024 Notes, the 2026 Notes, the Specified Debt and any Indebtedness secured by the Notes Priority Collateral on a pari passu basis with the 2026 Notes and the guarantees of the Specified Debt and RYAM’s
obligations under, and the related guarantees of, the Specified Intercompany Loan.
“Junior Lien Priority Indebtedness” means Indebtedness of the
Loan Parties that is secured by Liens on the Collateral ranking junior in priority to the Liens securing the Obligations, the 2026 Notes and the guarantees of the Specified Debt and RYAM’s obligations under, and the related guarantees of, the
Specified Intercompany Loan; provided that the trustee, collateral agent and/or other authorized representative for the holders of such Indebtedness shall execute a junior lien intercreditor agreement or collateral trust agreement reasonably
satisfactory to the Agent reflecting the junior-lien status of the Liens securing such Indebtedness as it relates to the Collateral.
“Landlord Reserve” means, as to each location at which a Loan
Party with assets included in the Borrowing Base has Inventory or books and records are located and as to which a Collateral Access Agreement has not been received by the Agent, a reserve in an amount equal to 3 months’ rent under the lease
relative to such location (or, if greater and if so elected by the Agent, the number of months’ rent for which the landlord will have, under applicable Law, a Lien on the Inventory of such Loan Party to secure the payment of rent or other amounts
under the lease relative to such location); provided, that there shall be no such reserve on or prior to the 90th day following the Effective
Date.
“Laws” means, collectively, all international, foreign, federal,
state, provincial, territorial, municipal and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and all Governmental Authorizations, in each case having the force of law.
“L/C Advance” means, with respect to each Lender, such Lender’s
funding of its participation in any L/C Borrowing in accordance with its Commitment Percentage. All L/C Advances shall be denominated in Dollars.
“L/C Borrowing” means an extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing. All L/C Borrowings shall be denominated in Dollars.
“L/C Credit Extension” means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Obligations” means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be
drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Lead Borrower” has the meaning specified in the preamble to
this Agreement.
“Lease” means any written agreement, pursuant to which a Loan
Party is entitled to the use or occupancy of any space in a structure, land, improvements or premises for any period of time.
“Lender Party” means any Lender and any Issuing Bank.
“Lenders” means (i) prior to the Amendment No. 3 Effective Date, the
Lenders listed on the signature pages hereof as Lenders and as the Swing Line Lender, as the context may require, and each Eligible Assignee that shall become a party hereto pursuant to Section 10.07. and (ii) on and after the Amendment No. 3 Effective Date, the Lenders listed on the signature pages of Amendment No. 3 as 2024 Revolving Credit Lenders and as the Swing Line Lender, as the context may require,
and each Eligible Assignee that shall become a party hereto pursuant to Section 10.07.
“Lending Office” means, as to any Lender, the office or offices
of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify to the Lead Borrower and the Agent, which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context
otherwise requires each reference to a Lender shall include its applicable Lending Office.
“Letter of Credit” means any letter of credit issued hereunder
and shall include the Existing Letters of Credit. A Letter of Credit may be a Trade Letter of Credit or a Standby Letter of Credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.
“Letter of Credit Application” means an application and
agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by any Issuing Bank.
“Letter of Credit Expiration Date” means the day that is seven
days prior to the Termination Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the meaning specified in Section
2.04(h).
“Letter of Credit Sublimit” means an amount equal to
$100,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“Lien” means, with respect to any asset, any mortgage, lien,
pledge, charge, hypothec, security interest or similar encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected or rendered opposable under applicable Law (including any conditional sale or other title
retention agreement or any lease in the nature thereof); provided that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.
“Limited Condition Acquisition” means any purchase or other
acquisition, by merger, amalgamation, consolidation or otherwise, by the Lead Borrower or any Subsidiary of Equity Interests in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit,
division, product line or line of business of), any Person, the consummation of which is not conditioned on the availability of, or on obtaining, third party financing.
“Loan Cap” means, at any time of determination, the lesser of
(a) the Aggregate Commitments and (b) the Borrowing Base.
“Loan Documents” means, collectively, this Agreement, the
Guaranties, the ABL Intercreditor Agreement, any note delivered pursuant to Section 4.04(d), the Collateral Documents, any Borrowing Base Certificate, each Designated Borrower Joinder Agreement, any intercreditor agreement delivered
pursuant to the definition of Junior Lien Priority Indebtedness and each application or agreement and other documents delivered in connection with Letters of Credit pursuant to Section 2.04 and any other agreement between or among any Loan
Party and the Agent designated therein as a “Loan Document”, in each case as amended, supplemented or otherwise modified hereafter from time to time in accordance with the terms thereof.
“Loan Parties” means, collectively, each of the Borrowers and
Guarantors from time to time party hereto.
“Majority Lenders” means, as of any date of determination,
Lenders having more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Advances being deemed “held” by such
Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that there shall be excluded for purposes of making a determination of Majority Lenders the unused Revolving Credit Commitment of any
Defaulting Lender.
“Margin Stock” has the meaning assigned to such term in
Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Material Adverse Change” means any event which has or would
reasonably be expected to have a Material Adverse Effect; provided that solely with respect to clause (x) of the definition of “Material Adverse Effect”, the impact of the Coronavirus (also known as COVID-19) pandemic on the financial
condition or business operations of Holdings and its Subsidiaries, on a Consolidated basis, that occurred prior to the Effective Date will be disregarded for purposes of this representation to the extent such impact was disclosed in the offering
memorandum for the 2026 Notes (for the avoidance of doubt, clauses (y) and (z) of the definition of Material Adverse Effect shall not be impacted in any way by the impact of the Coronavirus pandemic for purposes of this definition).
“Material Adverse Effect” means, a material adverse effect on
(x) the business, financial condition, operations or properties of Holdings and its Subsidiaries, taken as a whole, (y) the ability of Borrowers or the other Loan Parties to perform their payment obligations under the Loan Documents when due, or
(z) the validity or enforceability of any of the Loan Documents or the rights and remedies of Agent and the Lenders under any of the Loan Documents.
“Material Subsidiary” means any Wholly Owned Subsidiary of
Holdings (other than Lead Borrower), in each case, that as of the last day of the fiscal quarter of Holdings’ most recently ended, had assets with a value in excess of 2.5% of the Total Assets or revenues representing in excess of 2.5% of Total
Revenues (including third party revenues but excluding intercompany revenues) of Holdings, Lead Borrower and their Wholly Owned Subsidiaries on a consolidated basis as of such date.
“Moody’s” means Moody’s Investors Service, Inc or any successor
to the rating agency business thereof.
“Multiemployer Plan” means a “multiemployer plan” as defined in
Section 4001(a)(3) of ERISA to which a Loan Party or any ERISA Affiliate is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions, but does not
include, for greater certainty, any Canadian Pension Plan.
“Net Income” means, with respect to any Person, the net income
(loss) of such Person and its Restricted Subsidiaries, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.
“Net Proceeds” means (a) with respect to any Disposition by any
Loan Party, the excess, if any, of (i) the sum of cash and cash equivalents received in connection with such transaction (including any cash or cash equivalents received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset by a Lien permitted hereunder which is senior to the Agent’s Lien on such asset and
that is required to be repaid (or to establish an escrow for the future repayment thereof) in connection with such transaction (other than Indebtedness under the Loan Documents), (B) the reasonable and customary out-of-pocket expenses incurred by
such Loan Party in connection with such transaction (including, without limitation, appraisals, and brokerage, legal, title and recording or transfer tax expenses and commissions) paid by any Loan Party to third parties (other than Affiliates)),
(C) any funded escrow account established by the Loan Parties to pay federal, state, provincial and local income or other Taxes estimated to be payable by any Loan Party as a result thereof (provided that to the extent and at the time any
such amounts are released from such reserve and not applied to pay such Taxes, such amounts shall constitute Net Proceeds) and (D) and any deduction of appropriate amounts to be provided by any Loan Party as a reserve in accordance with GAAP
against any liabilities associated with the asset Disposed of in such transaction and retained by Holdings and the Restricted Subsidiaries after such sale or other disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction; and (b) with respect to the sale or issuance of any Equity Interest by any Loan Party,
or the incurrence or issuance of any Indebtedness by any Loan Party, the excess of (i) the sum of the cash and cash equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable
and customary out-of-pocket expenses, incurred by such Loan Party in connection therewith.
“Non-Consenting Lender” shall have the meaning specified in Section
10.01(e).
“Note” means a promissory note made by any Borrower in favor of
a Lender, in substantially the form of Exhibit B hereto, evidencing the aggregate indebtedness of such Borrower to such Lender resulting from the Revolving Credit Advances, or Swing Line Advances, as the case may be, made by such Lender.
“Notes Collateral Agent” means Wells Fargo Bank, National
Association (or its successor), as trustee, registrar, paying agent and notes collateral agent under the Security Documents (as defined in the 2026 Notes Indenture).
“Notes Priority Collateral” has the meaning specified in the ABL
Intercreditor Agreement.
“Obligation” means all loans, advances, debts, liabilities and
obligations for the performance of covenants or for payment of monetary amounts (whether or not such performance is then required or contingent, or such amounts are liquidated or determinable) owing by any Loan Party (or its Subsidiary) to any
Secured Party under any Loan Document, any Bank Product Document, any Secured Hedge Agreement or any Secured Supply Chain Financing and all covenants and duties regarding such amounts, of any kind or nature, present or future, whether or not
evidenced by any note, agreement, letter of credit agreement or other instrument, arising under this Agreement, any of the other Loan Documents, any Bank Product Documents, any Secured Hedge Agreement (other than with respect to any Loan Party’s
obligations that constitute Excluded Swap Obligations solely with respect to such Loan Party) or any Secured Supply Chain Financing. This term includes all principal, Letter of Credit Obligations, interest (including all interest that accrues after the commencement of any case or proceeding by or against any Loan Party in bankruptcy, whether or not allowed in such
case or proceeding), fees, Secured Hedging Obligations (other than with respect to any Loan Party’s Secured Hedging Obligations that constitute Excluded Swap Obligations solely with respect to such Loan Party), expenses, attorneys’ fees and any
other sum chargeable to any Loan Party under this Agreement, any of the other Loan Documents, any Bank Product Documents, any Secured Hedge Agreements or any Secured Supply Chain Financing (including all monetary obligations that accrue after the
commencement of any case or proceeding by or against any Loan Party in bankruptcy, whether or not allowed in such case or proceeding).
“OECD” means the Organization for Economic Cooperation and
Development.
“OFAC” means the Office of Foreign Assets Control of the United
States Department of the Treasury.
“Officer” means, with respect to any Person, the Chairman of the
Board, Chief Executive Officer, Chief Financial Officer, President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of such Person.
“Officer’s Certificate” means, with respect to any Person, a
certificate signed on behalf of such Person by an Officer which meets the requirements set forth in this Agreement.
“Other Connection Taxes” means, with respect to any Recipient,
Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely 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 Advance, L/C Advance or Loan Document).
“Other Taxes” means all present or future stamp, court,
documentary, intangible, recording, filing or similar Taxes that arise 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 that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 10.07(h)).
“Outstanding Amount” means (i) with respect to Revolving Credit
Advances and Swing Line Advances on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Advances or Swing Line Advances, as the case may be, occurring
on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the Loan Parties of Unreimbursed Amounts.
“Overadvance” means a Credit Extension to the extent that,
immediately after its having been made, Availability is less than zero (determined without giving effect to the words “if a positive number” in the definition thereof).
“Overnight Rate” means, for any day, the greater of (i) the
Federal Funds Rate and (ii) an overnight rate determined by the Agent or the applicable Issuing Bank, as the case may be, in accordance with banking industry rules on interbank compensation.
“Participating Member State” means each state so described in
any EMU Legislation.
“Patents” has the meaning specified in the applicable Collateral
Documents.
“Payment Conditions” means, at the time of determination with
respect to any specified transaction or payment, that:
(a) no Default or Event of
Default then exists or would arise as a result of entering into such transaction or the making such payment,
(b) immediately after
giving effect to such transaction or payment, one of the following tests shall be satisfied:
(i) (1) Availability for the 90 consecutive day period immediately preceding such specified transaction or payment shall not have been less than the greater of $40.035.0 million and 25.0% of the Loan Cap (or, if Holdings’ Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which financial statements have been, or are required to have
been, delivered is less than or equal to 5.00 to 1.00, the greater of $32.528.0 million and 20.0% of the Loan Cap) (or, in the case of any specified transaction
or payment that is a Restricted Payment, no less than the greater of $50.043.75 million and 30.0% of the Loan Cap (or, if Holdings’ Total Leverage Ratio as of
the last day of the most recently ended Fiscal Quarter for which financial statements have been, or are required to have been, delivered is less than or equal to 5.00 to 1.00, the greater of $40.035.0 million and 25.0% of the Loan Cap)), and (2) Availability on the date of such specified transaction or payment shall not be less than the greater of such amounts; or
(ii) (1) Availability for the 90 consecutive day period immediately preceding such specified transaction or payment shall not have been less than the greater of $32.528.0 million and 20.0% of the Loan Cap (or, if Holdings’ Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which financial statements have been, or are required to have
been, delivered is less than or equal to 5.00 to 1.00, the greater of $25.022.0 million and 15.0% of the Loan Cap) (or, in the case of any specified transaction
or payment that is a Restricted Payment, no less than the greater of $40.035.0 million and 25.0% of the Loan Cap (or, if Holdings’ Total Leverage Ratio as of the
last day of the most recently ended Fiscal Quarter for which financial statements have been, or are required to have been, delivered is less than or equal to 5.00 to 1.00, the greater of $32.528.0 million and 20.0% of the Loan Cap)), or (2) Availability on the date of such specified transaction or payment shall not be less than the greater of such amounts, and (3) the Fixed Charge Coverage Ratio,
based on the most recently completed Test Period, shall not be less than 1.00 to 1.00; and
(c) the Agent shall have received an Officer’s Certificate from a financial officer of Lead Borrower certifying as to compliance with the preceding clauses and demonstrating (in reasonable detail) the
calculations required thereby; provided that no such Officer’s Certificate shall be required for any transaction made in reliance on the Payment Conditions with a value of less than $25.0 million.
“PBA” means the Pension Benefits Act (Ontario) or any other Canadian federal or provincial pension benefits standards legislation applicable
to a Canadian Pension Plan.
“PBGC” means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions in respect of a pension plan that is not a Canadian Pension Plan.
“Perfection Certificate” means that certain Joint Perfection
Certificate, to be dated as of the Closing Date, executed by the Loan Parties and delivered to the Agent and the Notes Collateral Agent.
“Permitted Acquisition” means any Acquisition in which the
following conditions are satisfied:
(a) the Loan Parties shall
have satisfied the Payment Conditions, and;
(b) if proceeds of an
Advance are used to pay all or a portion of the consideration for such Acquisition, such Acquisition shall have been approved by the Board of Directors of the Person (or similar governing body if such Person is not a corporation) which is the
subject of such Acquisition and such Person shall not have announced that it will oppose such Acquisition or shall not have commenced any action which alleges that such Acquisition shall violate applicable Law; and
(c) if proceeds of an
Advance are used to pay all or a portion of the consideration for such Acquisition, after giving effect to such Acquisition, the Loan Parties, on a Consolidated basis, shall be Solvent.
“Permitted Discretion” means a determination made by the Agent
in the exercise of its reasonable credit judgment (from the perspective of a secured asset-based revolving lender), exercised in good faith in accordance with customary business practices for comparable asset-based lending transactions.
“Permitted Investments” means:
(1) any Investment in Holdings or any Restricted Subsidiary; provided that the aggregate amount of Investments by Loan Parties in Restricted Subsidiaries that are not Loan Parties in reliance on this
clause (1) shall not exceed (when combined with Investments made by Loan Parties in Subsidiaries or Joint Ventures that are not (or do not become in connection with such transaction) Loan Parties in reliance on clauses (3), (21) and (22) of the
definition of Permitted Investment) $100 million in the aggregate and $50 million in any Fiscal Year;
(2) any Investment in Cash
Equivalents or Investment Grade Securities;
(3) any Permitted Acquisition; provided that the aggregate amount of Investments by Loan Parties in Restricted Subsidiaries that are not Loan Parties (or do not merge into or otherwise become a Loan
Party in connection with such transaction) in reliance on this Clause (3) shall not exceed (when combined with Investments made by Loan Parties in Subsidiaries or Joint Ventures that are not (or do not become in connection with such
transaction) Loan Parties in reliance on Clauses (1), (21) and (22) of the definition of Permitted Investment) $100 million in the aggregate and $50 million in any Fiscal Year;
(4) any Investment in securities or other assets not constituting Cash Equivalents and received in connection with any disposition of assets permitted by Section 7.02(d);
(5) any Investment existing on, or made pursuant to binding commitments existing on, the Effective Date or an Investment consisting of any extension, modification or renewal of any Investment existing on the
Effective Date; provided that the amount of any such Investment may be increased (x) as required by the terms of such Investment as in existence on the Effective Date or (y) as otherwise permitted under this Agreement;
(6) loans and advances to
officers, directors, employees or consultants of Holdings or any of its Subsidiaries (i) in the ordinary course of business in an aggregate outstanding amount (valued at the time of the making thereof, and without giving effect to any write-downs
or write-offs thereof) not to exceed $30 million at the time of Incurrence, (ii) in respect of payroll payments and expenses in the ordinary course of business and (iii) in connection with such Person’s purchase of Equity Interests of Holdings or
any direct or indirect parent of Holdings solely to the extent that the amount of such loans and advances shall be contributed to Holdings in cash as common equity;
(7) any Investment acquired
by Holdings or any Restricted Subsidiary (a) in exchange for any other Investment or accounts receivable held by Holdings or such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization
of the issuer of such other Investment or accounts receivable, or (b) as a result of a foreclosure by Holdings or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment
in default, or (c) as a result of a Bail-In Action with respect to any contractual counterparty of Holdings or any Restricted Subsidiary;
(8) Hedging Obligations permitted under Section 7.02(a)(ii)(10);
(9) [Reserved];
(10) additional Investments by Holdings or any Restricted Subsidiary having an aggregate Fair Market Value (as determined in good faith by Lead Borrower), taken together with all other Investments made
pursuant to this clause (10) that are at that time outstanding (and when combined with Restricted Payments made in reliance on Section 7.02(b)(9) and Investments in Joint Ventures in reliance on clause (21) of the definition of Permitted
Investments), not to exceed the sum of (x) $100 million (and $50 million in any Fiscal Year) plus (y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and
similar amounts) actually received in respect of any such Investment (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); provided, however,
that if any Investment pursuant to this clause (10) is made in any Person that is not a Loan Party at the date of the making of such Investment and such Person becomes a Loan Party after such date, such Investment shall thereafter be deemed to
have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (10) for so long as such Person continues to be a Loan Party;
(11) loans and advances to
officers, directors or employees for (i) business-related travel expenses, moving expenses and other similar expenses, in each case Incurred in the ordinary course of business or consistent with past practice or (ii) to fund such Person’s
purchase of Equity Interests of Holdings or any direct or indirect parent of RYAM in an aggregate outstanding amount in the case of this clause (ii) not to exceed $5 million;
(12) Investments the payment for which consists of Equity Interests of Holdings (other than Disqualified Capital Stock) or any direct or indirect parent of Holdings, as applicable; provided, however,
that such Equity Interests will not increase the amount available for Restricted Payments under Section 7.02(b)(ii)(8);
(13) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Section 7.02(e)(ii) (except transactions described in clauses (2),
(4), (6), (8)(B) and (15) of Section 7.02(e)(ii));
(14) guarantees issued in accordance with Section 7.02(a) or Section 7.01(n) including, without limitation, any guarantee or other obligation issued or incurred under this Agreement in
connection with any letter of credit issued for the account of Holdings or any of its Subsidiaries (including with respect to the issuance of, or payments in respect of drawings under, such letters of credit);
(15) Investments consisting
of or to finance purchases and acquisitions of inventory, supplies, materials, services or equipment or purchases of contract rights or licenses or leases of intellectual property;
(16) Guarantees permitted under Section 7.02(a);
(17) [reserved];
(18) Investments of a Restricted Subsidiary acquired after the Effective Date or of an entity merged into, amalgamated with, or consolidated with Holdings or a Restricted Subsidiary in a transaction that is
not prohibited by Section 7.02(h) after the Effective Date to the extent that such Investments were not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such
acquisition, merger, amalgamation or consolidation;
(19) Investments in the
ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers;
(20) advances in the form of
a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of Holdings or the Restricted Subsidiaries;
(21) Investments in Joint Ventures having an aggregate Fair Market Value (as determined in good faith by Holdings), taken together with all other Investments made pursuant to this clause (21) that are at that
time outstanding (and when combined with Restricted Payments made in reliance on Section 7.02(b)(9) and Investments made in reliance on clause (10) of the definition of Permitted Investments), not to exceed the sum of (x) $100 million (and $50
million in any Fiscal Year), plus (y) an amount equal to any returns (including dividends, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such
Investment (with the Fair Market Value each Investment being measured at the time made and without giving effect to subsequent changes in value); provided that the aggregate amount of Investments by Loan Parties in Joint Ventures made
in reliance on this clause (21) shall not exceed (when combined with Investments made by Loan Parties in Subsidiaries that are not (or do not become in connection with such transaction) Loan Parties in reliance on Clauses (1), (3) and (22) of
the definition of Permitted Investment) $100 million in the aggregate and $50 million in any Fiscal Year; provided, however, that if any Investment pursuant to this clause (21) is made in any Person that is not a Loan Party at the date
of the making of such Investment and such Person becomes a Loan Party after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (21) for
so long as such Person continues to be a Loan Party;
(22) any Investment in any Subsidiary of Holdings or any Joint Venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business; provided
that the aggregate amount of Investments made by Loan Parties in Subsidiaries or Joint Ventures that are not Loan Parties in reliance on this clause (22) shall not exceed (when combined with Investments made by Loan Parties in Subsidiaries that
are not (or do not become in connection with such transaction) Loan Parties in reliance on clauses (1), (3) and (21) of the definition of Permitted Investment) $100 million in the aggregate and $50 million in any Fiscal Year;
(23) Guarantied Obligations
of any Loan Party or any Restricted Subsidiary of leases or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(24) Investments in connection with the Incurrence of Indebtedness pursuant to Section 7.02(a)(ii)(29);
(25) Investments in Forestry Joint Ventures having an aggregate Fair Market Value (as determined in good faith by Holdings), taken together with all other Investments made pursuant to this clause (25) that are
at that time outstanding, not to exceed (x) $10.0 million to be used at any time after the Closing Date solely for Investments in Forestry Joint Ventures, plus (y) an amount equal to any returns (including dividends, interest,
distributions, returns of principal, profits on sale, repayments, income and similar amounts) actually received in respect of any such Investment (with the Fair Market Value each Investment being measured at the time made and without giving
effect to subsequent changes in value); provided, however, that if any Investment pursuant to this clause (25) is made in any Person that is not a Loan Party at the date of the making of such Investment and such Person becomes a Loan
Party after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (1) above and shall cease to have been made pursuant to this clause (25) for so long as such Person continues to be a Loan Party; and
(26) the purchase of Equity
Interests in each applicable Farm Credit Lender (or its designated affiliates) in accordance with each such Farm Credit Lender’s applicable bylaws and capital plan; and
(27) subject to Pro Forma Compliance with the Payment Conditions, any other Investments.
“Permitted Liens” means, with respect to any Person:
(1) pledges, bonds or
deposits and other Liens granted by such Person under workmen’s compensation laws, unemployment or employment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. or Canadian government bonds to secure surety or appeal bonds, performance and return of
money bonds, or deposits as security for contested Taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business;
(2) Liens imposed by law,
such as landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, construction or other like Liens securing obligations that are not overdue by more than 45 days or that are being contested in good faith by appropriate
proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review;
(3) Liens for Taxes not yet
overdue by more than 45 days, or that are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto have been provided in accordance with GAAP;
(4) deposits to secure
performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit, bankers’ acceptances or similar obligations (other than Indebtedness for borrowed money) issued pursuant to the request of and for
the account of such Person in the ordinary course of its business;
(5) minor survey (or other
mapping products) exceptions, minor encumbrances, trackage rights, special assessments, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, servicing agreements, development agreements, site plan agreements, other similar encumbrances and other matters of record incurred in the ordinary course of business and matters expressly set forth as an exception to the policies of
title insurance, if any, obtained to insure the Lien or hypothec of each mortgage with respect to each of the mortgaged properties or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the
operation of the business of such Person;
(6) (A)Liens on assets of a Subsidiary that is not a Loan Party securing Indebtedness of a Subsidiary that is not a Loan Party permitted to be Incurred pursuant to Section 7.02(a);
(B) Liens securing any Indebtedness permitted to be Incurred by this Agreement if, as of the date such Indebtedness was Incurred, and after giving pro forma effect thereto and the application of the net
proceeds therefrom (but without netting the proceeds thereof), the Consolidated Secured Net Leverage Ratio of Holdings does not exceed 3.50 to 1.00; provided that (I) any Lien on the ABL Priority Collateral in reliance on this clause
(6)(B) shall be junior to the Liens on the ABL Priority Collateral securing the Obligations pursuant to the ABL Intercreditor Agreement and/or a junior lien intercreditor agreement or collateral trust agreement reasonably satisfactory to Agent
reflecting the junior-lien status of the Liens securing such Indebtedness as it relates to the ABL Priority Collateral, (II) the Indebtedness secured by such Liens shall not be secured by any property or assets of Holdings or any Restricted
Subsidiary other than Collateral, (III) the final maturity date of any such Indebtedness shall be no earlier than the 91 days after the Termination Date, and (IV) none of the obligors or guarantors with respect to such Indebtedness shall be a
Person that is not a Loan Party;
(C) Liens securing obligations in respect of Indebtedness permitted to be Incurred pursuant to clause (4), (14) (to the extent such guarantees are issued in respect of any Indebtedness), (16) or (29) (to the
extent granted by Restricted Subsidiaries of Holdings that are organized and operating under the laws of France) of Section 7.02(a)(ii); provided that, in the case of clause (14) or (16) any Lien on the ABL Priority Collateral
in reliance on this clause (6)(C) shall be junior to the Liens on the ABL Priority Collateral securing the Obligations pursuant to the ABL Intercreditor Agreement and/or a junior lien intercreditor agreement or collateral trust agreement
reasonably satisfactory to Agent reflecting the junior-lien status of the Liens securing such Indebtedness as it relates to ABL Priority Collateral;
(D) [Reserved];
(E) Liens created pursuant
to the Collateral Documents or otherwise securing the Obligations;
(7) Liens existing on the
Effective Date (including the Liens securing the Canadian Financing on the Effective Date);
(8) Liens on assets, property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that such Liens (other than Liens to secure Indebtedness Incurred
pursuant to Section 7.02(a)(ii)(16)) are not created or Incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, however, that such Liens (other than
Liens to secure Indebtedness Incurred pursuant to Section 7.02(a)(ii)(16)) may not extend to any other property owned by Holdings or any Restricted Subsidiary (other than pursuant to after-acquired property clauses in effect with
respect to such Lien at the time of acquisition on property of the type that would have been subject to such Lien notwithstanding the occurrence of such acquisition); provided, further, that any Lien on assets that would
otherwise be included in the Borrowing Base in reliance on this clause (8) shall be junior to the Liens on the ABL Priority Collateral securing the Obligations pursuant to the ABL Intercreditor Agreement and/or a junior lien intercreditor
agreement or collateral trust agreement reasonably satisfactory to the Agent reflecting the junior-lien status of the Liens securing such Indebtedness as it relates to ABL Priority Collateral;
(9) Liens on assets or property at the time Holdings or a Restricted Subsidiary acquired the assets or property, including any acquisition by means of a merger, amalgamation or consolidation with or into
Holdings or any Restricted Subsidiary; provided, however, that such Liens (other than Liens to secure Indebtedness Incurred pursuant to Section 7.02(a)(ii)(16)) are not created or Incurred in connection with, or in
contemplation of, such acquisition; provided, further, however, that the Liens (other than Liens to secure Indebtedness Incurred pursuant to Section 7.02(a)(ii)(16)) may not extend to any other property owned by
Holdings or any Restricted Subsidiary (other than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition on property of the type that would have been subject to such Lien notwithstanding the
occurrence of such acquisition); provided, further, that any Lien on assets that would otherwise be included in the Borrowing Base in reliance on this clause (9) shall be junior to the Liens on the ABL Priority Collateral
securing the Obligations pursuant to the ABL Intercreditor Agreement and/or a junior lien intercreditor agreement or collateral trust agreement reasonably satisfactory to Agent reflecting the junior-lien status of the Liens securing such
Indebtedness as it relates to ABL Priority Collateral;
(10) [Reserved];
(11) Liens securing Hedging
Obligations (and, for the avoidance of doubt, Swap Obligations) not incurred in violation of this Agreement;
(12) [Reserved];
(13) leases, subleases,
licenses and sublicenses of real property which do not materially interfere with the ordinary conduct of the business of Holdings or any of the Restricted Subsidiaries;
(14) Liens arising from Uniform Commercial Code financing statement filings (or equivalent filings including under the PPSA (including registrations of hypothecs) or similar personal property security laws)
regarding operating leases or other obligations not constituting Indebtedness or in connection with any Permitted Supplier Receivables SalesSale Program;
(15) Liens in favor of
Holdings or any Loan Party;
(16) [Reserved];
(17) pledges and deposits
and other Liens made in the ordinary course of business to secure liability to insurance carriers;
(18) Liens on the Equity
Interests of Unrestricted Subsidiaries;
(19) leases, subleases,
licenses or sublicenses (including with respect to intellectual property) granted to others in the ordinary course of business;
(20) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness
secured by any Lien referred to in clauses (6)(B), (6)(C), (7), (8), (9), (11), (15), (25), (35) and (38) of this definition; provided, however, that (x) such new Lien shall be limited to all or part of the same property
(including any after acquired property to the extent it would have been subject to the original Lien) that secured the original Lien (plus improvements on and accessions to such property, proceeds and products thereof, customary security
deposits and any other assets pursuant to the after-acquired property clauses to the extent such assets secured (or would have secured) the Indebtedness being refinanced, refunded, extended, renewed or replaced), and (y) the Indebtedness
secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount (or accreted value, if applicable) or, if greater, committed amount of the applicable Indebtedness described under
clauses (6)(B), (6)(C), (7), (8), (9), (11), (15), (25), (35) and (38) at the time the original Lien became a Permitted Lien under this Agreement and, in the case of any Lien on Collateral, shall not have a greater priority level with respect
to Liens securing the Obligations than the Liens securing the Indebtedness so refinanced, refunded, extended, renewed or replaced, (B) unpaid accrued interest and premiums (including tender premiums), and (C) an amount necessary to pay any
underwriting discounts, defeasance costs, commissions, fees and expenses related to such refinancing, refunding, extension, renewal or replacement; provided, further, however, that (X) in the case of any Liens to secure
any refinancing, refunding, extension or renewal of Indebtedness secured by a Lien referred to in clause (6)(B), the principal amount of any Indebtedness Incurred for such refinancing, refunding, extension or renewal shall be deemed secured by
a Lien under clause (6)(B) and not this clause (20) for purposes of determining the principal amount of Indebtedness outstanding under clause (6)(B) and (Y) in the case of Liens to secure any refinancing, refunding, extension or renewal of
Indebtedness secured by a Lien referred to in clause (6)(B), (8), (9) or (15), such new Lien shall have priority equal to or more junior than the Lien securing such refinanced, refunded, extended or renewed Indebtedness;
(21) except to the extent
the applicable equipment constitutes ABL Priority Collateral, Liens on equipment of Holdings or any Restricted Subsidiary granted in the ordinary course of business to Holdings’ or such Restricted Subsidiary’s client at which such equipment is
located;
(22) judgment and attachment
Liens not giving rise to an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;
(23) Liens arising out of
conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into in the ordinary course of business;
(24) Liens incurred to
secure Bank Products or to implement cash pooling arrangements in the ordinary course of business;
(25) Liens incurred to
secure Junior Indebtedness in an amount not to exceed the then available incremental capacity described in 2.06(b);
(26) any encumbrance or
restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement securing obligations of such joint venture or pursuant to any joint venture or similar agreement;
(27) any amounts held by a
trustee in the funds and accounts under any indenture issued in escrow pursuant to customary escrow arrangements pending the release thereof, or under any indenture pursuant to customary discharge, redemption or defeasance provisions;
(28) Liens (i) arising by
virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depository or financial institution, (ii) attaching to commodity
trading accounts or other commodity brokerage accounts incurred in the ordinary course of business or (iii) encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts incurred in the
ordinary course of business and not for speculative purposes;
(29) Liens in connection
with the ground lease for the Fernandina Cogeneration Project, the ground lease to LignoTech Florida, the ground lease to Eight Flags and the ground lease to and operating agreement with Coast Chips Inc., in each case, that are in existence on
the Effective Date;
(30) Liens disclosed by the title commitments or title insurance policies delivered pursuant to the 2026 Notes Indenture, the Term Loan Credit Agreement and each Specified Debt Agreement and any replacement, extension or renewal of any such Lien;
provided that such replacement, extension or renewal Lien shall not cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal; provided, further, that the
Indebtedness and other obligations secured by such replacement, extension or renewal Lien are permitted under this Agreement;
(31) Liens that are
contractual rights of set-off relating to purchase orders and other agreements entered into with customers, suppliers or service providers of Holdings or any Restricted Subsidiary in the ordinary course of business;
(32) in the case of real
property that constitutes a leasehold or subleasehold interest, (x) any Lien to which the fee simple interest (or any superior leasehold interest) is or may become subject and any subordination of such leasehold or subleasehold interest to any
such Lien in accordance with the terms and provisions of the applicable leasehold or subleasehold documents, and (y) any right of first refusal, right of first negotiation or right of first offer which is granted to the lessor or sublessor;
(33) statutory liens in
favor of a Farm Credit Lender or its Affiliate pursuant to the Farm Credit Act of 1971 (as may be amended from time to time) on all Farm Credit Equities of such Farm Credit Lender or its Affiliate that any Loan Party may now own or hereafter
acquire, which statutory lien shall be for such Farm Credit Lender’s (or its Affiliate’s) sole and exclusive benefit;
(34) Liens on securities
that are the subject of repurchase agreements constituting Cash Equivalents under clause (4) of the definition thereof;
(35) Liens on the Collateral
securing the 2026 Notes and the related guarantees thereof and the guarantees of the Specified Debt and RYAM’s obligations under, and the related guarantees of, the Specified Intercompany Loan;
(36) Liens securing insurance premium financing arrangements; provided that such Liens are limited to the applicable unearned insurance premiums;
(37) [Reserved]; and
(38) other Liens securing obligations the outstanding principal amount of which does not, taken together with the principal amount of all other obligations secured by Liens incurred under this clause (38)
that are at that time outstanding, exceed the greater of $87.5 million and 3.5% of Total Assets at the time of incurrence; provided that (I) any Lien on the ABL Priority Collateral in reliance on this clause (38) shall be junior
to the Liens on the ABL Priority Collateral securing the Obligations pursuant to the ABL Intercreditor Agreement and/or a junior lien intercreditor agreement or collateral trust agreement reasonably satisfactory to Agent reflecting the
junior-lien status of the Liens securing such Indebtedness as it relates to the ABL Priority Collateral and (II) any such Liens on any Notes Priority Collateral must be secured on a pari passu or junior basis to the 2026 Notes, the Term Loans, the guarantees of the Specified Debt and
RYAM’s obligations under, and the related guarantees of, the Specified Intercompany Loan (in each
case, to the extent then outstanding) and, if such Indebtedness is secured by Notes Priority Collateral or Term Loan Priority Collateral, as applicable, on a pari passu basis with the 2026 Notes, the Term Loans, the guarantees of the Specified Debt
and RYAM’s obligations under, and the related guarantees of, the Specified Intercompany Loan, the representative in respect of such obligations must enter into either (A) must enter into the ABL Intercreditor Agreement or (B) a joinder to the security documents in respect of, as applicable, (x) the Term Loans or (y) the 2026
Notes, the guarantees of the Specified Debt and RYAM’s obligations under, and the related guarantees of, the Specified Intercompany Loan (in form reasonably satisfactory to Agent), and if such Indebtedness is secured by Notes Priority
Collateral or Term Loan Priority Collateral, as applicable, on a junior basis to the 2026 Notes or Term Loans, the representative in respect of such obligations must enter into a junior lien intercreditor agreement or collateral trust agreement reasonably satisfactory to Agent reflecting the junior-lien status
of the Liens securing such Indebtedness as it relates to the 2026 Notes, the Term Loans, the guarantees of the Specified Debt and RYAM’s obligations under, and the related guarantees of, the Specified Intercompany Loan (in each case, to the extent then outstanding).
“Permitted Overadvance” means an Overadvance made by the Agent,
in its discretion, which:
(a) is made to maintain,
protect or preserve the Collateral and/or the Secured Parties’ rights under the Loan Documents or which is otherwise for the benefit of the Secured Parties;
(b) is made to enhance the
likelihood of, or to maximize the amount of, repayment of any Obligation;
(c) is made to pay any
other amount chargeable to any Loan Party hereunder; and
(d) together with all other
Permitted Overadvances then outstanding, shall not (i) exceed ten percent (10%) of the Borrowing Base at any time and (ii) remain outstanding for more than forty-five (45) consecutive Business Days, unless in each case, the Majority Lenders
otherwise agree;
provided, however, that the foregoing shall not (i)
modify or abrogate any of the provisions of Section 2.04 regarding the Lenders’ obligations with respect to Letters of Credit or Section 2.04 regarding the Lenders’ obligations with respect to Swing Line Loans, or (ii) result in any
claim or liability against the Agent (regardless of the amount of any Overadvance) for Unintentional Overadvances and such Unintentional Overadvances shall not reduce the amount of Permitted Overadvances allowed hereunder; and provided, further,
that in no event shall the Agent make an Overadvance, if after giving effect thereto, the principal amount of the Credit Extensions would exceed the Aggregate Commitments (as in effect prior to any termination of the Commitments pursuant to Section
2.06(b)).
“Permitted Supplier Receivables Sale Program” means any supplier
or vendor financing arrangement, transaction, or similar program that is entered into for the purpose of facilitating the sale or financing by any Loan Party of Receivables Assets or interests therein, so long as (a) no Default or Event of Default
has occurred and is continuing, or would result from such sale or financing, (b) each such sale or financing is for cash which is paid substantially concurrently with such sale or financing and (c) following such sale or financing, other than
pursuant to those non-recourse exceptions which are customary in such accounts receivable sales programs (as determined reasonably and in good faith by Borrower in consultation with the Agent), (i) no purchaser or other third-party financial
institution shall have any recourse to any Loan Party or any of their respective Subsidiaries in connection with such sale or financing (or other related arrangement), and (ii) no Loan Party nor any Subsidiary of any Loan Party shall guarantee any
liabilities or obligations with respect to such sale, financing or other related arrangement (including, without limitation, any guarantee, surety or other credit support for any of the obligations owed by any customer of any Loan Party or any of
its Subsidiaries to such third-party financial institution under any sale or other financing arrangement); provided, that the aggregate amount of all Receivables Assets or interests therein sold, financed, or otherwise transferred under all
Permitted Supplier Receivables Sale Programs, as such amount may be reduced from time to time by all cash payments advanced to Loan Parties (and all commissions, discounts, yield and other fees and charges relating thereto) in connection
therewith, shall not exceed $20,000,000 at any time.
“Person” means an individual, partnership, limited liability
company, unlimited liability company, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
“Plan” means an employee benefit plan (other than a
Multiemployer Plan) maintained by a Loan Party or any ERISA Affiliate for its employees and subject to Title IV of ERISA which, for greater certainty, does not include a Canadian Pension Plan.
“PNC Bank” means PNC Bank, National Association.
“PPSA” means the Personal Property Security Act (Ontario) (or
any successor statute) or similar legislation (including the Civil Code of Quebec) of any other Canadian jurisdiction the laws of which are required by such legislation to be applied in connection with the issue, perfection, effect of perfection,
enforcement, enforceability, opposability, validity or effect of security interests or other applicable Lien.
“Preferred Stock” means any Equity Interest with preferential
right of payment of dividends or upon liquidation, dissolution, or winding up.
“Pro Forma Compliance” means, with respect to any determination
for any period and any transaction, that such determination shall be made by giving pro forma effect to each such transaction, as if each such transaction had been consummated on the first day of such period, based on, in the case of determinations
made in reliance on pro-forma financial statement calculations only, historical results accounted for in accordance with GAAP and, to the extent applicable, reasonable assumptions that are specified in detail in the relevant compliance certificate,
financial statement or other document provided to Agent or any Lender in connection herewith (which shall be prepared by Holdings in good faith (subject to the approval of the Agent, not to be unreasonably withheld, conditioned or delayed)) and for
such purposes historical financial statements shall be recalculated as if such transaction had been consummated at the beginning of the applicable period, and any Indebtedness or other liabilities to be incurred, assumed or repaid had been
incurred, assumed or repaid at the beginning of such period (and assuming that such Indebtedness to be incurred bears interest during any portion of the applicable measurement period prior to the relevant transaction at the weighted average of the
interest rates applicable to such Indebtedness incurred during such period).
“Real Estate” means all Leases and all land, together with the
buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Loan Party, including all easements, rights-of-way, and similar rights relating thereto and all leases, tenancies, and occupancies thereof.
“Receivable Reserves” means, as of any date of determination,
those reserves that the Agent deems necessary or appropriate, in its Permitted Discretion after consultation with the Lead Borrower, to establish and maintain (including Dilution Reserves, Insured Dilution Reserves and reserves for rebates,
discounts, warranty claims, and returns) with respect to Eligible Accounts, Eligible Foreign Accounts, Eligible Credit Insurance-Backed Foreign Accounts and Eligible Letter of Credit-Backed Foreign Accounts.
“Receivables Assets” means Accounts and related assets and property from time to
time originated, acquired or otherwise owned by Holdings or any Subsidiary.
“Recipient” has the meaning specified in Section 10.11.
“Refinancing” means the repayment in full of all outstanding
indebtedness and the termination of all commitments under that certain Amended and Restated Credit Agreement, dated as of November 17, 2017 (as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of September 30, 2019
and the Second Amendment to Amended and Restated Credit Agreement, dated as of June 5, 2020, and as further amended, supplemented or otherwise modified and in effect immediately prior to the Closing Date), among Lead Borrower and Rayonier Performance Fibers, LLC, as borrowers, Holdings, the subsidiary loan parties from time to time party thereto, the lenders from time to time party thereto and
Bank of America, as administrative agent and collateral agent (the “Existing Credit Agreement”), and the cash collateralization, rollover or backstopping (in a manner reasonably satisfactory to the issuing bank thereof) of all letters of
credit issued and outstanding under, and the release of all Liens (or delivery of a customary payoff letter providing for such release and adequate provision having been made for such release) and guarantees in respect of, the Existing Credit
Agreement.
“Refinancing Indebtedness” has the meaning specified in Section
7.02(a)(ii)(15).
“Refunding Capital Stock” has the meaning specified in Section 7.02(b)(ii)(2).
“Register” has the meaning specified in Section 10.07(c).
“Related Parties” means, with respect to any Person, such
Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
“Release Date” means the date on which (a) the Aggregate
Commitments shall have been terminated, (b) the principal of and interest on each Loan, all fees and all other outstanding Obligations shall have been paid in full (other than in respect of contingent indemnification and expense reimbursement
claims not then due) and (c) all Letters of Credit (other than those that have been Cash Collateralized in an amount equal to 103% of the face amount of such Letters of Credit) have been cancelled or have expired and all amounts drawn or paid
thereunder have been reimbursed in full.
“Request for Credit Extension” means (a) with respect to a
Borrowing, conversion or continuation of Revolving Credit Advances, a Committed Advance Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Advance, a Swing Line Advance Notice.
“Requirements of Law” means, with respect to any Person, all
laws, constitutions, statutes, ordinances, rules and regulations, all orders, writs, decrees, injunctions, judgments, determinations, and awards of an arbitrator, a court or any other Governmental Authority, and all Governmental Authorizations,
binding upon or applicable to such Person or to any of its properties, assets or businesses.
“Rescindable Amount” has the meaning as defined in Section
4.01(c).
“Reserves” means, without duplication, as of any date of
determination, all Inventory Reserves and Availability Reserves.
“Resolution Authority” means an EEA Resolution Authority or,
with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means, with respect to any certificate,
report or notice to be delivered or given hereunder, unless the context otherwise requires, the president, chief executive officer, chief financial officer or treasurer of the Holdings or Lead Borrower or other executive officer of Holdings or Lead
Borrower who in the normal performance of his or her operational duties would have knowledge of the subject matter relating to such certificate, report or notice and, solely for purposes of notices given pursuant to Article II, any other
officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable
Loan Party and the Agent.
“Restricted Cash” means cash and Cash Equivalents held by
Holdings and the Restricted Subsidiaries that would appear as “restricted” on a consolidated balance sheet of Holdings or any of the Restricted Subsidiaries.
“Restricted Investment” means any Investment that is not a
Permitted Investment.
“Restricted Payments” has the meaning specified in Section
7.02(b)(i).
“Restricted Subsidiary” means, with respect to any Person, any
Subsidiary of such Person other than an Unrestricted Subsidiary of such Person. Unless the context otherwise requires, the term “Restricted Subsidiary” shall mean a Restricted Subsidiary of Holdings. Each Loan Party shall constitute a Restricted
Subsidiary.
“Retired Capital Stock” has the meaning specified in Section
7.02(b)(ii)(2).
“Revaluation Date” means, with respect to any Letter of Credit,
each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit denominated in an Alternative Currency having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) each date of any payment by an Issuing Bank under any Letter of Credit denominated in an Alternative Currency, and (iv) to the extent warranted by circumstances, such additional
dates as the Agent or the Issuing Banks shall reasonably determine or the Majority Lenders shall reasonably require.
“Revolving Credit Advance” means an advance by a Lender to any
Borrower under Section 2.01(a) (including, for the avoidance of
doubt, the 2024 Revolving Credit Advances).
“Revolving Credit Borrowing” means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type and, in the case of Term SOFR Loans, having the same Interest Period.
“Revolving Credit Commitment” means, as to each Lender, its
obligation to (a) make Revolving Credit Advances to the Borrowers pursuant to Section 2.01(a), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Advances, in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 1.01A under the caption “Revolving Credit Commitment” (which,
for the avoidance of doubt, includes such Lender’s 2024 Revolving Credit Commitment) or in the Assignment and Acceptance pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“Revolving Credit Facility” means, at any time, the aggregate
amount of the Lenders’ Revolving Credit Commitments (including, for the
avoidance of doubt, such Lender’s 2024 Revolving Credit Commitment) at such time.
“S&P” means S&P Global Ratings, a Standard & Poor’s
Financial Services LLC business, and any successor thereto.
“Sales Credit Policies” means the policies in effect from time
to time with respect to credit accorded in the ordinary course of business to customers of the Loan Parties in such Loan Parties’ reasonable prudent business judgment.
“Sale/Leaseback Transaction” means an arrangement relating to
property now owned or hereafter acquired by Holdings or a Restricted Subsidiary whereby Holdings or such Restricted Subsidiary transfers such property to a Person and Holdings or such Restricted Subsidiary leases it from such Person, other than
leases between any of Holdings and a Restricted Subsidiary or between Restricted Subsidiaries.
“Same Day Funds” means (a) with respect to disbursements and
payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Agent or the applicable Issuing Bank, as the case may be, to be
customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
“Sanctioned Country” means, at any time, a country, region or
territory which is itself the subject or target of any Sanctions (as of the Effective Date, Crimea, Cuba, Iran, North Korea and Syria).
“Sanctioned Entity” means (a) an agency of the government of or
(b) an organization directly or indirectly controlled by, a country that is subject to a sanctions program identified on the most current list maintained and published by the United States Government (including OFAC or the U.S. Department of
State), the United Nations Security Council, the European Union, any member state of the European Union, Her Majesty’s Treasury (“HMT”) or the Canadian Government (collectively, “Sanctions”).
“Sanctioned Person” means (a) a person named on the most current
list of Specially Designated Nationals or Blocked Persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union, any member state of the European Union, or on HMT’s Consolidated List of
Financial Sanctions Targets, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned 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” has the meaning assigned to such term in the
definition of “Sanctioned Entity”.
“Scheduled Unavailability Date” has the meaning assigned to such
term in Section 2.09(b)(ii).
“SEC” means the United States Securities and Exchange Commission
or any Governmental Authority succeeding to, or exercising any, of its principal functions.
“Secured Hedge Agreement” means any Swap Contract by and between
Holdings or any of its Subsidiaries and any Hedge Bank.
“Secured Hedging Obligations” means the obligations of Holdings
or any of its Subsidiaries arising under any Secured Hedge Agreement.
“Secured Indebtedness” means any Consolidated Total Indebtedness
secured by a Lien.
“Secured Parties” means, collectively, the Agent, the Lenders,
the Issuing Banks, the Swing Line Lender, any Cash Management Bank that is party to a Bank Product Document, any Hedge Bank that is a party to a Secured Hedge Agreement and any Supply Chain Bank that is a party to a Secured Supply Chain Financing.
“Secured Supply Chain Financing” means any Supply Chain
Financing that is entered into by and between Holdings or any Subsidiary and any Supply Chain Bank, including any such Supply Chain Financing that is in effect on the Effective Date.
“Senior Debt” means the 2024 Notes, the 2026 Notes, the Term Loans and the
Specified Debt.
“Senior Debt Documents” means the 2024 Notes Indenture, the 2026
Notes Indenture, the Term Loan Credit Agreement and each Specified Debt Agreement.
“Senior Representative” means, with respect to any Indebtedness,
the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in
such capacities.
“Significant Subsidiary” means any Restricted Subsidiary that
would be a “Significant Subsidiary” within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC (or any successor provisions).
“Similar Business” has the meaning specified in Section
7.02(f).
“SOFR” means the Secured Overnight Financing Rate as
administered by the SOFR Administrator.
“SOFR Adjustment” means 0.10% (10 basis points).
“SOFR Administrator” means the Federal Reserve Bank of New York,
as the administrator of SOFR, or any successor administrator of SOFR designated by the Federal Reserve Bank of New York or other Person acting as the SOFR Administrator at such time that is satisfactory to the Agent.
“SOFR Rate Day” has the meaning specified in the definition of
“Daily Simple SOFR”.
“Solvent” means, with respect to any Person organized under the
laws of the United States, or any state thereof, or Canada, or any province or territory thereof, on a particular date, that on such date (a) the fair value of the assets of such Person, at a fair valuation, will exceed the debts and liabilities,
direct, subordinated, contingent or otherwise, of such Person; (b) the present fair saleable value of the property of such Person will be greater than the amount that will be required to pay the probable liability of such Person on its debts and
other liabilities, direct, 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, direct, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; (d) such Person will not have unreasonably small capital with which to conduct the businesses in which it is engaged as such businesses are conducted on such date and are proposed to be conducted
after such date and (e) with respect to any such Person organized under the laws of Canada or any province or territory thereof, such Person is not an “insolvent person” as such term is defined in the BIA.
“Specified Country” means the United Kingdom, Norway,
Switzerland, Japan, Singapore, Australia, New Zealand, and any country that was a member of the European Union prior to May 1, 2004.
“Specified Debt” means each of:
(i) the indebtedness incurred by any Foreign Subsidiary (other than a
Subsidiary incorporated or otherwise organized under the laws of Canada or any province or territory thereof) on or after the Amendment No. 2 Effective Date (the “Third Party Specified Debt”) to the extent that (1) such indebtedness is
incurred on or prior to September 30, 2023 in an aggregate principal amount not to exceed $250,000,000, (2) such indebtedness shall have a stated maturity no earlier than the date that is 91 days after the Original Maturity Date (as defined in this Agreement prior to giving effect to Amendment No. 3), (3) such indebtedness is not guaranteed by, or secured by the assets of, any person other than a Loan Party (other than, for the avoidance of doubt, the Foreign Subsidiary borrower thereof), (4) the
guarantees of such indebtedness are Future Notes Indebtedness (as defined in the ABL Intercreditor Agreement) and subject to the provisions of the ABL Intercreditor Agreement, (5) such indebtedness is subject in all material respects to the same
terms and covenants as those set forth in the draft documentation reviewed by Bank of America on July 19, 2023 and (6) substantially concurrently with (or prior to) the incurrence of such indebtedness, the Lead Borrower has delivered an
unconditional notice of redemption in accordance with the terms of the 2024 Notes Indenture providing for the redemption of (or the Lead Borrower has satisfied and discharged its obligations in respect of) all of the 2024 Notes outstanding; and
(ii) the intercompany loan made by the borrower of the Third Party
Specified Debt to a Loan Party (the “Specified Intercompany Loan”), to the extent that (1) the economic terms (including as to interest rate, maturity and amortization, if any) are substantially similar to the Third Party Specified Debt
(subject to any local law requirements), (2) such indebtedness is not guaranteed by, or secured by the assets of, any person other than a Loan Party, (3) such indebtedness is Future Notes Indebtedness (as defined in the ABL Intercreditor Agreement)
and subject to the provisions of the ABL Intercreditor Agreement, (4) such indebtedness is subject in all material respects to the same terms and covenants as those set forth in the draft documentation reviewed by Bank of America on July 19, 2023
and (5) substantially concurrently with (or prior to) the incurrence of such indebtedness, the Lead Borrower has delivered an unconditional notice of redemption in accordance with the terms of the 2024 Notes Indenture providing for the redemption
(or the Lead Borrower has satisfied and discharged its obligations in respect of) all of the 2024 Notes outstanding.
“Specified Debt Agreement” means the indentures, credit
agreements, notes or other instruments governing the Specified Debt, to be entered into at the time of incurrence of the Specified Debt.
“Spot Rate” for a currency means the rate determined by the
Agent or an Issuing Bank, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Agent or such Issuing Bank may obtain such spot rate from another financial institution designated by the Agent or such Issuing Bank if the Person acting in such capacity does not
have as of the date of determination a spot buying rate for any such currency; and provided, further, that such Issuing Bank may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case
of any Letter of Credit denominated in an Alternative Currency.
“Standby Letter of Credit” means a letter of credit or other
credit support instrument issued for the benefit of a Person party to a contractual arrangement with Holdings or any of its Subsidiaries as credit support for the obligations of Holdings or such Subsidiary thereunder.
“Subsidiary” means, with respect to any Person, any corporation,
partnership, trust or other Person of which more than 50% of the outstanding capital stock (or similar property right in the case of partnerships and trusts and other Persons) having ordinary voting power to elect a majority of the Board of
Directors of such corporation (or similar governing body or Person with respect to partnerships and trusts and other Persons) (irrespective of whether or not at the time capital stock of any other class or classes of such corporation shall or might
have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned by such Person, by such Person and one or more other Subsidiaries of such Person, or by one or more other Subsidiaries of such Person. Unless the
context otherwise requires, the term “Subsidiary” shall mean a Subsidiary of Holdings.
“Successor Rate” has the meaning specified in Section 2.09(b).
“Supply Chain Bank” means any Person counterparty to a Supply
Chain Financing who is (x) Bank of America or any Affiliate or branch of Bank of America, or (y) any other Lender or any Affiliate or branch of such Lender so long as, in the case of this clause (y), Holdings and the applicable Lender (or its
Affiliate or branch) shall have delivered a notice thereof to the Agent.
“Supply Chain Financing” means any agreement to provide to
Holdings or any Subsidiary (x) letters of credit, guarantees or other credit support provided in respect of trade payables of Holdings or any Subsidiary, in each case issued for the benefit of any bank, financial institution or other person that
has acquired such trade payables pursuant to “supply chain” or other similar financing for vendors and suppliers of Holdings or any Subsidiaries, so long as (i) other than in the case of Secured Supply Chain Financings, such arrangement is
unsecured (except as otherwise permitted herein), (ii) the terms of such trade payables shall not have been extended in connection with the Supply Chain Financing and (iii) such Indebtedness represents amounts not in excess of those which Holdings
or any of its Subsidiaries would otherwise have been obligated to pay to its vendor or supplier in respect of the applicable trade payables, (y) customary leasing finance arrangements or (z) any arrangement pursuant to which a Supply Chain Bank
acquires payables owed by Holdings or any of its Subsidiaries to its vendor or supplier.
“Swap Contract” means (a) any agreement with respect to any
swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, cross-currency hedges, 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 Borrowers or any of their respective Subsidiaries shall be a “Swap Agreement” and (b) any agreement with respect to any transactions (together with
any related confirmations) which are subject to the terms and conditions of, or are governed by, any master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any
other similar master agreement.
“Swap Obligation” means, with respect to any Loan Party, any
obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1(a)(47) of the Commodity Exchange Act.
“Swing Line” means the revolving credit facility made available
by the Swing Line Lender pursuant to Section 2.03.
“Swing Line Advance” means an advance made available by the
Swing Line Lender pursuant to Section 2.03(a). Swing Line Advances shall be denominated in Dollars.
“Swing Line Advance Notice” means a notice of a Swing Line
Borrowing pursuant to Section 2.03(b), which if in writing, shall be substantially in the form of Exhibit A-2 or such other form as approved by the Agent (including any form on an electronic platform or electronic transmission
system as shall be approved by the Agent), appropriately completed and signed by a Responsible Officer of the applicable Borrower.
“Swing Line Borrowing” means a borrowing of a Swing Line Advance
pursuant to Section 2.03.
“Swing Line Lender” means Bank of America, including any of its
Affiliates and branches, in its capacity as provider of Swing Line Advances.
“Swing Line Sublimit” means an amount equal to the lesser of (a)
$20,000,000 and (b) the Revolving Credit Facility. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“Tax Distributions” means any distributions described in Section
7.02(b)(ii)(11).
“Tax Group” has the meaning specified in Section
7.02(b)(ii)(11).
“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.
“Temiscaming High-Yield Pulp & Paperboard Asset” means the Temiscaming paperboard and high-yield pulp plant and other assets related thereto located in Canada.
“Term Loan Collateral” has the meaning specified in the ABL Intercreditor Agreement.
“Term Loans” means the loans advanced by the lenders under the Term Loan Credit Agreement, pursuant to the Term Loan Credit Agreement.
“Term Loan Agent” means Alter Domus (US) LLC (or its successor or assignee), as administrative agent and collateral agent under the Term Loan Credit Agreement.
“Term Loan Credit Agreement” means that certain Term Loan Credit Agreement, dated as of October 28, 2024, among the Lead Borrower, as borrower, the guarantors from time to time party thereto, the lenders from time to time party thereto,
and the Term Loan Agent, as administrative agent and collateral agent.
“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 then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in
each case, plus the
SOFR Adjustment for such Interest Period; and
(b) for any interest calculation with
respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen Rate with a term of one month commencing that day;
provided that if the Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would otherwise be less than 0.25%, the Term SOFR shall be deemed 0.25% for purposes of this Agreement.
“Term SOFR Advance” or “Term SOFR Loan” means an
Advance that bears interest at a rate based on clause (a) of the definition of Term SOFR.
“Term SOFR Screen Rate” means the forward-looking SOFR term
rate administered by CME (or any successor administrator satisfactory to the Agent in its reasonable discretion) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be
reasonably designated by the Agent from time to time).
“Termination Date” means the earlier of (x) the fifth
anniversary of the ClosingAmendment No. 3 Effective Date (the “OriginalStated Maturity Date”) and (y) the date that is 121 days prior to the earliest stated maturity date of (i) any series of Senior Debt, (ii) Indebtedness in respect of any Canadian Financing with a maturity date prior to the date that
is 121 days after the OriginalStated Maturity Date, (iii) any Indebtedness Incurred under Section 7.02(a)(ii)(12) and/or (iv) any refinancing debt in respect
of the foregoing with a maturity date prior to the date that is 121 days after the OriginalStated Maturity Date (but solely to the extent the
applicable debt described in the foregoing clauses (i) through (iv) is outstanding on such date that is 121 days prior to the stated maturity date thereof); provided that if the aggregate principal amount of all such Indebtedness with a
maturity date prior to the date that is 121 days after the OriginalStated Maturity Date, taken together, does not exceed $30.0 million (in the case of the
Canadian Financing, determined based on the Spot Rate as in effect on the Effective Date), the Agent shall instead impose a Reserve against the Loan Cap in the outstanding amount of such Indebtedness for so long as it remains outstanding and the
Termination Date shall be the OriginalStated Maturity Date, or, in each case, the earlier date of termination in whole of the Commitments pursuant to Section
2.06(a) or 8.01; provided further that the Agent shall not impose any such Reserve in respect of any Canadian Financing (or any refinancing debt in respect thereof) so long as (1) no Revolving Credit Advances shall be
outstanding while such Indebtedness remains outstanding and (2) the amount of cash and Cash Equivalents of Holdings and its Subsidiaries exceeds the outstanding principal amount of any such Canadian Financing).
“Test Period” means, as of any date of determination, the most
recently completed four Fiscal Quarters of the Loan Parties ended on or prior to such time (taken as one accounting period) for which financial statements (and the related compliance certificate) have been delivered (or are required to have been
delivered) to the Agent.
“Total Assets” means, as of any date of determination, the
consolidated assets of the Holdings and its Subsidiaries at the end of the Fiscal Quarter immediately preceding such date, determined in accordance with GAAP, calculated on a pro forma basis after giving effect to any subsequent acquisition or Disposition of a Person or business.
“Total Leverage Ratio” means, with respect to any Person, at any
date, the ratio of (i) Consolidated Funded Debt of such Person and its Restricted Subsidiaries as of such date of calculation, less the amount of cash and Cash Equivalents in excess of any Restricted Cash that would be stated on the balance sheet
of such Person and its Restricted Subsidiaries and held by such Person and its Restricted Subsidiaries as of such date of determination to (ii) Consolidated EBITDA of such Person for the four full fiscal quarters for which internal financial
statements are available immediately preceding such date on which such additional Indebtedness is Incurred.
“Total Revenues” means, as of any date of determination, the
consolidated revenue of the Holdings and its Subsidiaries at the end of the Fiscal Quarter immediately preceding such date, determined in accordance with GAAP, calculated on a pro forma basis after giving effect to any subsequent acquisition or Disposition of a Person or business.
“Total Revolving Credit Outstandings” means the aggregate
Outstanding Amount of all Advances and L/C Obligations.
“Trade Letter of Credit” means a direct-pay sight trade or
documentary letter of credit issued for the benefit of a vendor in connection with the purchase of goods by the Holdings or any of its Subsidiaries in the ordinary course of business.
“Trademarks” has the meaning specified in the applicable
Collateral Documents.
“Transactions” means (A) the issuance and sale of the 2026 Notes
on the Closing Date, (B) the consummation of the Refinancing on the Closing Date, (C) the entry into this Agreement on the Effective Date and the incurrence of indebtedness pursuant to this Agreement on and after the Closing Date and (D) the
payment of fees and expenses in connection with the foregoing.
“Type” refers to the distinction among Advances bearing interest
at the Base Rate and Advances bearing interest at Term SOFR.
“UCC” means the Uniform Commercial Code as the same may, from
time to time, be enacted and in effect in the State of New York; provided, that to the extent that the UCC is used to define any term herein or in any Loan Document and such term is defined differently in different Articles or Divisions of
the UCC, the definition of such term contained in Article or Division 9 shall govern; provided, further, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, publication or
priority of, or remedies with respect to, Agent’s or any Lender’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in another State other than the State of New York, the term “UCC” means the Uniform
Commercial Code in such other State.
“UK Financial Institution” means any BRRD Undertaking (as such
term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person 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 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 responsibility for the resolution of any UK Financial Institution
“Unfinanced Capital Expenditures” means for any period, Capital
Expenditures of Holdings and its Restricted Subsidiaries made in cash during such period, except to the extent financed with the proceeds of Capital Lease Obligations or other Indebtedness (other than Advances incurred hereunder), common Capital
Stock or Disqualified Capital Stock, casualty proceeds, condemnation proceeds or other proceeds that would not be included in EBITDA (including government grants), less cash received from the sale of any fixed assets of Holdings and its Restricted
Subsidiaries (including, without limitation, assets of the type that may constitute Equipment hereunder) during such period; provided
that the aggregate amount of Unfinanced Capital Expenditures during such period may not be less than zero.
“Unintentional Overadvance” means an Overadvance which, to the
Agent’s knowledge, did not constitute an Overadvance when made but which has become an Overadvance resulting from changed circumstances beyond the control of the Lenders, including, without limitation, a reduction in the Appraised Value of property
or assets included in the Borrowing Base or misrepresentation by the Loan Parties.
“United States Person” means any Person that is a “United States
Person” as defined in Section 7701(a)(30) of the Code.
“United States Tax Compliance Certificate” has the meaning
specified in Section 4.02(e)(ii)(B)(III).
“Unreimbursed Amount” has the meaning specified in Section
2.04(c)(i).
“Unrestricted Subsidiary” means:
(1) any Subsidiary of
Holdings that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors of Holdings in the manner provided below; and
(2) any Subsidiary of an
Unrestricted Subsidiary.
Holdings may designate any Subsidiary of Holdings (including any newly
acquired or newly formed Subsidiary of Holdings) to be an Unrestricted Subsidiary unless at the time of such designation such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on any
property of, Holdings or any other Restricted Subsidiary that is not a Subsidiary of the Subsidiary to be so designated, in each case at the time of such designation; provided, however, that the Subsidiary to be so designated and
its Subsidiaries do not at the time of designation have and do not thereafter Incur any Indebtedness pursuant to which the lender has recourse to any of the assets of Holdings or any of the Restricted Subsidiaries unless otherwise permitted under Section
7.02(b); provided, further, however, that either:
(a) the Subsidiary to be so
designated has total consolidated assets of $1,000 or less; or
(b) if such Subsidiary has consolidated assets greater than $1,000, then such designation would be permitted under Section 7.02(b).
Holdings may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided, however, that immediately after giving effect to such designation, Holdings shall be in Pro Forma Compliance with the Payment Conditions.
In no event may a Borrower or any Subsidiary that is a “Restricted Subsidiary” under (and as defined in) any Senior Debt Document be
designated an Unrestricted Subsidiary. As of the Effective Date, no entity is an Unrestricted Subsidiary.
“Unused Commitment Fee Rate” means 0.375% per annum.
“U.S. Collateral” means the Collateral owned by (or, in the
event such Collateral has been foreclosed upon, immediately prior to such foreclosure that was owned by) a U.S. Loan Party.
“U.S. Dominion Account” means a special concentration account
established by Holdings at an Affiliate or branch of the Agent in the United States, over which the Agent has exclusive control for withdrawal purposes pursuant to the terms and provisions of this Agreement and the other Loan Documents.
“U.S. Government Securities Business Day” means any Business
Day, except any Business Day on which any of the Securities Industry and Financial Markets Association, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the
federal laws of the United States or the laws of the State of New York, as applicable.
“U.S. Guarantor” means each Guarantor that is a Domestic
Subsidiary.
“U.S. Guaranty” means the guarantee of the Obligations of each
Loan Party hereunder by the U.S. Loan Parties in Article III hereunder or in a supplemental guarantee in accordance with Section 7.01(n) of this Agreement.
“U.S. Loan Party” means each Borrower and each U.S. Guarantor.
“U.S. Security Agreement” means that certain Security Agreement,
to be dated as of the Closing Date, made by the Loan Parties party thereto in favor of the Agent, on behalf of the Agent, and the Secured Parties, as amended, restated, supplemented or otherwise modified from time to time.
“Voting Participant” has the meaning specified in Section 10.07(i).
“Voting Participant Notification” has the meaning specified in Section
10.07(i).
“Weekly Borrowing Base Delivery Event” means either (i) the
occurrence and continuance of any Event of Default, or (ii) the failure of the Borrowers to maintain Availability at least equal to the greater of (a) 17.5% of the Loan Cap, and (b) $30.026.25 million. For purposes of this Agreement, the occurrence of a Weekly Borrowing Base Delivery Event shall be deemed continuing (i) so long as such Event of Default exists, and/or (ii) if the Weekly
Borrowing Base Delivery Event arises as a result of the Borrowers’ failure to achieve Availability as required hereunder, until Availability has exceeded the greater of (x) 17.5% of the Loan Cap, and (y) $30.026.25 million for thirty (30) consecutive calendar days, in which case a Weekly Borrowing Base Delivery Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of a
Weekly Borrowing Base Delivery Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Weekly Borrowing Base Delivery Event in the event that the conditions set forth in this definition again arise.
“Weighted Average Life to Maturity” means, when applied to any
Indebtedness or Disqualified Capital Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by dividing (1) the sum of the products of the number of years from the date of determination to the date of each successive
scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Disqualified Capital Stock or Preferred Stock multiplied by the amount of such payment, by (2) the sum of all such payments.
“Wholly Owned Restricted Subsidiary” means any Wholly Owned
Subsidiary that is a Restricted Subsidiary.
“Wholly Owned Subsidiary” of any Person means a Subsidiary of
such Person 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares or shares required pursuant to applicable Law) shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person.
“Withdrawal Liability” has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers” 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 the applicable EEA Member Country, which write-down and conversion powers are described in the
EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution
or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect
as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.02 Computation of Time Periods. In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the
words “to” and “until” each means “to but excluding”.
Section 1.03 Accounting
Terms.
(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP as in effect from time to time, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. Notwithstanding any change in GAAP occurring after the Effective Date, the computations of all financial ratios and requirements set forth in any Loan Document shall continue to
be computed in accordance with GAAP prior to such change therein.
Section 1.04 Exchange Rates; Currency Equivalents; Ratio and Basket Calculations. (a) The applicable Issuing Banks shall determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalent amounts of Letters of Credit denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies
until the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency
(other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Agent or the applicable Issuing Bank, as applicable, absent manifest error.
(b) Wherever in this
Agreement in connection with the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Letter of Credit is denominated in an Alternative Currency,
unless otherwise expressed in this Agreement, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as
determined by the applicable Issuing Bank.
(c) For purposes of
determining the Borrowing Base (and each component thereof), the Borrowers shall report (i) asset values with respect to any asset included in the Borrowing Base in the currency shown in the Borrowers’ financial records or invoiced by the
Borrowers, as applicable, for such asset, (ii) any Inventory Reserves with respect to any item of Inventory in the currency in which the asset value for such item of Inventory is reported pursuant to clause (i) above, and (iii) any Availability
Reserve in the currency of the underlying claims, liabilities or obligations giving rise to such Availability Reserve.
(d) Notwithstanding the foregoing, for purposes of determining compliance with any covenant in Article VII, (i) with respect to any Indebtedness, Lien, Investment, Restricted Payment, Disposition,
acquisition, transaction with Affiliates or payment or other distribution of or in respect of any Junior Indebtedness (each a “Covenant Transaction”) in a currency other than Dollars, no Default or Event of Default shall be deemed to
have occurred solely as a result of changes in rates of exchange occurring after the time such Covenant Transaction is created, made or incurred, and (ii) with respect to any Covenant Transaction created, incurred or made in reliance on a
provision that makes reference to a percentage of Consolidated EBITDA or Total Assets, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in the amount of Consolidated EBITDA occurring after the time
such Covenant Transaction is created, made or incurred in reliance on such provision.
(e) For purposes of determining compliance with any covenant in Article VII (other than Section 7.03), with respect to the amount of any Covenant Transaction in a currency other than Dollars,
such amount will be converted into Dollars by Lead Borrower based on the relevant Spot Rate in effect on the most recent Revaluation Date preceding the date such Covenant Transaction is created, incurred or made and such percentage or ratio
basket will be measured at the time such Covenant Transaction is created, incurred or made. For purposes of determining compliance with Section 7.03, amounts in currencies other than Dollars shall be translated into Dollars by Holdings
at the Exchange Rate used in preparing Holdings’ most recently delivered annual or quarterly financial statements.
Section 1.05 Change of
Currency.
Each provision of this Agreement shall be subject to such reasonable changes of construction as the Agent may from time to time specify to be appropriate
to reflect a change in currency of any country and any relevant market conventions or practices relating to the change in currency.
Section 1.06 Times of
Day.
Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
Section 1.07 Letter of Credit Amounts.Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the Dollar Equivalent of the maximum face
amount of such Letter of Credit after giving effect to all increases thereof contemplated by such Letter of Credit or the Issuer Documents related thereto, whether or not such maximum face amount is in effect at such time.
Section 1.08 Limited Conditions Acquisitions.In connection with any action being taken solely in connection with a Limited Condition
Acquisition, for purposes of determining compliance with any ratios, baskets, representations, warranties, defaults or Events of Default (in each case, other than for purposes of determining compliance with any component of the Payment Conditions
based on Availability or Section 5.03), in each case, at the option of Lead Borrower (Lead Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of
determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) (provided that Lead Borrower shall
be required to make an LCA Election on or prior to the date on which the definitive agreements for such Limited Condition Acquisition have been entered into), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence
of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date (after giving effect to any increases or decrease in Indebtedness of Holdings and its
Restricted Subsidiaries since such date), Lead Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio, representation, warranty, default, Events of Default or basket, such ratio, representation, warranty,
default, Event of Default or basket shall be deemed to have been complied with for purposes of such Limited Condition Acquisition. For the avoidance of doubt, if Lead Borrower has made an LCA Election and any of the ratios or baskets for which
compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of Holdings or the Person subject to such Limited Condition
Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If Lead Borrower has made an LCA Election for any Limited
Condition Acquisition, then in connection with any subsequent calculation of any ratios, representations, warranties, defaults, Events of Default or basket availability (excluding satisfaction of any component of the Payment Conditions based on
Availability) with respect to the incurrence of Indebtedness or Liens, or the making of Restricted Payments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings, the prepayment, redemption,
purchase, defeasance or other satisfaction of Indebtedness, the consummation of any other Permitted Acquisition or the designation of a Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited
Condition Acquisition is consummated or the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratios representations, warranties,
defaults, Events of Default or baskets shall be calculated on a pro forma basis
assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) has been consummated (it being further understood and agreed, however, that
neither any Consolidated Net Income or Consolidated EBITDA therefrom, nor any assets of the target to be acquired pursuant to such Limited Condition Acquisition, shall be included in Holdings’ Consolidated Net Income or Consolidated EBITDA, or in
the calculation of the Borrowing Base, as applicable, in any such subsequent calculation until such Limited Condition Acquisition has actually closed).
Section 1.09 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s
laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or 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 new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
Section 1.10 Borrower Representative. Each Loan Party hereby designates Lead Borrower as its representative and agent for all purposes under the Loan Documents, including requests for Advances and
Letters of Credit, designation of interest rates, delivery or receipt of communications, preparation and delivery of Borrowing Base Certificates and financial reports, receipt and payment of Obligations, requests for waivers, amendments or other
accommodations, actions under the Loan Documents (including in respect of compliance with covenants), and all other dealings with the Agent, any Issuing Bank or any Lender, and Lead Borrower hereby accepts such appointment. The Agent and the Lenders
shall be entitled to rely upon, and shall be fully protected in relying upon, any notice or communication delivered by Lead Borrower on behalf of any Loan Party. The Agent and the Lenders may give any notice or communication with a Loan Party
hereunder to Lead Borrower on behalf of such Loan Party. Each of the Agent, the Issuing Banks and the Lenders shall have the right, in its discretion, to deal exclusively with Lead Borrower for any or all purposes under the Loan Documents. Each
Loan Party agrees that any notice, election, communication, representation, agreement or undertaking made on its behalf by Lead Borrower shall be binding upon and enforceable against it.
Section 1.11 Interest Rates. The Agent does not warrant, nor accept responsibility, nor shall the 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 (including, for the avoidance of doubt, the selection of such 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 the foregoing, or of any Conforming Changes. The 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 or replacement 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 any Borrower. The Agent may select 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 of the foregoing), in each case pursuant to the terms of this Agreement, and shall have no liability to any Borrower, any Lender or any other person or entity for
damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission
related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
Section 1.12 Quebec Interpretive Provision. For purposes of any Collateral located in the Province of Quebec or charged by any deed of
hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the Laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the
Province of Quebec, (i) “personal property” shall be deemed to include “movable property”, (ii) “real property” shall be deemed to include “immovable property”, (iii) “tangible property” shall be deemed to include “corporeal property”, (iv)
“intangible property” shall be deemed to include “incorporeal property”, (v) “security interest” and “mortgage” shall be deemed to include a “hypothec”, (vi) all references to filing, registering or recording under the UCC or PPSA shall be deemed
to include publication by registration under the Civil Code of Quebec, (vii) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (viii) any “right of
offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (ix) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and
securities, (x) an “agent” shall be deemed to include a “mandatary”, (xi) “foreclosure” shall be deemed to include the “exercise of a hypothecary right”, (xii) “lease” shall be deemed to include a “lease” or a “contract of leasing (crédit-bail)”, as applicable, and (xiii) “deposit account” shall be deemed to include a “financial
account” (within the meaning of Article 2713.6 of the Civil Code of Quebec); (xiv) “construction liens” shall be deemed to include “legal hypothecs”, (xv) “joint and several” shall be deemed to include “solidary” and “jointly and severally” shall
be deemed to include “solidarily” (xvi) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (xvii) “beneficial ownership” shall be deemed to include “ownership”, (xviii) “easement” shall be deemed to include
“servitude”, and (xix) “priority” shall be deemed to include “rank” or “prior claim”, as applicable.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The
Revolving Credit Advances; Reserves.
(a) Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make Revolving Credit Advances to any Borrower from time to time on any Business Day during the Availability Period in
Dollars, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided, however, that after giving effect to any Revolving Credit Borrowing, (i) the Total
Revolving Credit Outstandings at such time shall not exceed the Loan Cap at such time, and (ii) the aggregate Outstanding Amount of the Revolving Credit Advances of any Lender, plus such Lender’s Commitment Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Commitment Percentage of the Outstanding Amount of all Swing Line Advances shall not exceed such Lender’s Revolving Credit Commitment. Within the limits of each Lender’s Revolving
Credit Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01(a), prepay under Section 2.10, and reborrow under this Section 2.01(a). Revolving Credit Advances
may be Base Rate Loans or Term SOFR Loans, as further provided herein.
(b) The Inventory Reserves and Availability Reserves as of the Closing Date will be as set forth in the Borrowing Base Certificate to be delivered pursuant to Section 5.02(h) hereof.
(c) The Agent shall
have the right, at any time and from time to time after the Closing Date in its Permitted Discretion, to establish or modify Reserves or to eliminate then existing Reserves, and the Agent shall provide the Lead Borrower with prompt written notice
of the same.
Section 2.02 Making
the Advances.
(a) Each Revolving Credit Borrowing, each conversion of Revolving Credit Advances from one Type to the other, and each continuation of Term SOFR Loans shall be made upon the applicable Borrower’s irrevocable
notice to the Agent, which may be given by (x) telephone or (y) a Committed Advance Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Agent of a Committed Advance Notice. Each such Committed
Advance Notice must be received by the Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Term SOFR Advances, and (ii) on the requested date of any Borrowing
of Base Rate Loans. Each Borrowing of, conversion to or continuation of Term SOFR Loans shall be in a minimum principal amount of $2,500,000. Except as provided in Sections 2.02(c), 2.03(c) and 2.04(c), each Borrowing
of or conversion to Base Rate Advances shall be in a minimum principal amount of $500,000. Each Committed Advance Notice (whether telephonic or written) shall specify (i) whether the applicable Borrower is requesting a Revolving Credit
Borrowing , a conversion of Revolving Credit Advances from one Type to the other, or a continuation of a Term SOFR Advance, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business
Day), (iii) the principal amount of Advances to be borrowed, converted or continued, (iv) the Type of Advances to be borrowed or to which existing Revolving Credit Advances are to be converted and (v) if applicable, the duration of the Interest
Period with respect thereto. If a Borrower fails to specify a Type of Advance in a Committed Advance Notice or if a Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Revolving Credit Advances
shall be made as, or converted to, a Base Rate Advance. Any such automatic conversion to Base Rate Advances shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Advances. If a
Borrower requests a Borrowing of, conversion to, or continuation of Term SOFR Advances in any such Committed Advance Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Advance Notice, the Agent shall promptly notify each Lender of the amount of its Commitment Percentage of the applicable Revolving Credit Advances, and if no timely notice
of a conversion or continuation is provided by the applicable Borrower, the Agent shall notify each Lender of the details of any automatic conversion to Base Rate Advances as described in Section 2.02(a). In the case of a Revolving
Credit Borrowing, each appropriate Lender shall make the amount of its Advance available to the Agent through its applicable Lending Office in Same Day Funds at the Agent’s Office not later than 2:00 p.m. on the Business Day specified in the
applicable Committed Advance Notice. Upon satisfaction of the applicable conditions set forth in Section 5.03 (and, if such Borrowing is the initial Credit Extension hereunder, Section 5.01 and 5.02), the Agent shall
make all funds so received available to the applicable Borrower in like funds as received by the Agent either by (i) crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Agent by such Borrower; provided, however, that if, on the date the Committed Advance Notice with respect to such Borrowing
is given by the Lead Borrower, there are L/C Borrowings outstanding (and the Lead Borrower shall have been notified of such L/C Borrowings), then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such
L/C Borrowings, and, second, shall be made available to the Lead Borrower as provided above.
(c) During the
existence of an Event of Default no Revolving Credit Advances may be requested as, converted to or continued as Term SOFR Loans without the consent of the Majority Lenders.
(d) The Agent shall
promptly notify the applicable Borrower and the Lenders of the interest rate applicable to any Interest Period for Term SOFR Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Agent shall notify
the applicable Borrower(s) and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect
to all Revolving Credit Borrowings, all conversions of Revolving Credit Advances from one Type to the other, and all continuations of Revolving Credit Advances as the same Type, there shall not be more than ten Interest Periods in effect.
(f) Notwithstanding
anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Advances in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this
Agreement, pursuant to a cashless settlement mechanism approved by the Lead Borrower, the Agent, and such Lender.
(g) The Agent, the Lenders, the Swing Line Lender and the Issuing Banks shall have no obligation to make any Loan or to provide any Letter of Credit if an Overadvance would result. The Agent may, in its
discretion, make Permitted Overadvances without the consent of the Borrowers, the Lenders, the Swing Line Lender and the Issuing Banks and the Borrowers and each Lender and Issuing Bank shall be bound thereby. Any Permitted Overadvance may
constitute a Swing Line Loan. A Permitted Overadvance is for the account of the Lead Borrower and shall constitute a Base Rate Advance and an Obligation and shall be repaid by the Lead Borrower in accordance with the provisions of Section
2.07. The making of any such Permitted Overadvance on any one occasion shall not obligate the Agent or any Lender to make or permit any Permitted Overadvance on any other occasion or to permit such Permitted Overadvances to remain
outstanding. The making by the Agent of a Permitted Overadvance shall not modify or abrogate any of the provisions of Section 2.04 regarding the Lenders’ obligations to purchase participations with respect to Letter of Credits or of Section
2.03 regarding the Lenders’ obligations to purchase participations with respect to Swing Line Loans. The Agent shall have no liability for, and no Loan Party or Lender shall have the right to, or shall, bring any claim of any kind
whatsoever against the Agent with respect to Unintentional Overadvances regardless of the amount of any such Overadvance(s).
Section 2.03 Swing
Line Advances.
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, may in its
sole discretion make loans (each such loan, a “Swing Line Advance”) to the Borrowers on such terms (subject to Section 2.07(b)) as may be agreed between the Swing Line Lender and the Lead Borrower from time to time, on any
Business Day during Availability Period in Dollars in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Advances, when aggregated with the Commitment
Percentage of the Outstanding Amount of Revolving Credit Advances and L/C Obligations of a Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any
Swing Line Advance, (i) the Total Revolving Credit Outstandings shall not exceed the Loan Cap, and (ii) the aggregate Outstanding Amount of the Revolving Credit Advances of any Lender, plus such Lender’s Commitment Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Commitment Percentage of the Outstanding Amount of all Swing Line Advances shall not exceed such Lender’s Commitment; and provided, further, that no Borrower
shall use the proceeds of any Swing Line Advance to refinance any outstanding Swing Line Advance. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.03,
prepay under Section 2.10, and reborrow under this Section 2.03. Immediately upon the request of the Swing Line Lender, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the
applicable Swing Line Lender a risk participation in such Swing Line Advance in an amount equal to the product of such Lender’s Commitment Percentage times the amount of such Swing Line Advance.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the irrevocable notice by a Borrower to the Swing Line Lender and the Agent, which may be given by (x) telephone or (y) by a
Swing Line Advance Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Agent of a Swing Line Advance Notice. Each such Swing Line Advance Notice must be received by the
Swing Line Lender and the Agent not later than, in the case of Swing Line Advances, 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $500,000, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line
Advance Notice, the Swing Line Lender will confirm with the Agent (by telephone or in writing) that the Agent has also received such Swing Line Advance Notice and, if not, the Swing Line Lender will notify the Agent (by telephone or in writing)
of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Agent (including at the request of any Lender) prior to 3:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing
the Swing Line Lender not to make such Swing Line Advance as a result of the limitations set forth in the first proviso to the first sentence of Section 2.03(a), or (B) that one or more of the applicable conditions specified in Article
V is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender may, not later than 4:00 p.m. on the borrowing date specified in such Swing Line Advance Notice, make the amount of its Swing Line Advance
available to the applicable Borrower at its office by crediting the account of such Borrower on the books of the Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line Advances.
(i) The Swing Line Lender at any time in its sole discretion may request, on behalf of the applicable Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that
each Lender make a Base Rate Loan in an amount equal to such Lender’s Commitment Percentage of the amount of Swing Line Advances then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed
Advance Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized
portion of the Revolving Credit Commitments and the conditions set forth in Section 5.03. The Swing Line Lender shall furnish Lead Borrower and the applicable Borrower with a copy of the applicable Committed Advance Notice promptly
after delivering such notice to the Agent. Each Lender shall make an amount equal to its Commitment Percentage of the amount specified in such Committed Advance Notice available to the Agent in immediately available funds (and the Agent may
apply Cash Collateral available with respect to the applicable Swing Line Advance) for the account of the Swing Line Lender at the Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Advance Notice, whereupon, subject
to Section 2.03(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower in such amount. The Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Advance cannot be refinanced by such a Committed Borrowing in accordance with Section 2.03(c)(i), the request for Base Rate Loans submitted by the Swing Line
Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Advance and each Lender’s payment to the Agent for the account of the Swing Line
Lender pursuant to Section 2.03(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c)
by the time specified in Section 2.03(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Agent), on demand, such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Swing Line
Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Advance included in the relevant Committed Borrowing or funded
participation in the relevant Swing Line Advance, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Lender’s obligation to make Revolving Credit Advances or to purchase and fund risk participations in Swing Line Advances pursuant to this Section 2.03(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, any Borrower or any other Person for any reason whatsoever, (B)
the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Revolving Credit Advances
pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 5.03. No such funding of risk participations shall relieve or otherwise impair the obligation of any Borrower to repay Swing Line Advances,
together with interest as provided herein.
(d) Repayment of Participations.
(i) At
any time after any Lender has purchased and funded a risk participation in a Swing Line Advance, if the Swing Line Lender receives any payment on account of such Swing Line Advance, the Swing Line Lender will distribute to such Lender its
Commitment Percentage thereof in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Advance is required to be returned by the Swing Line Lender under any of the circumstances described
in Section 10.09 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Commitment Percentage thereof on demand of the Agent, plus
interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Overnight Rate. The Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing Lead Borrower for interest on the Swing Line Advances. Until each Lender funds its Base Rate
Loan or risk participation pursuant to this Section 2.03 to refinance such Lender’s Commitment Percentage of any Swing Line Advance, interest in respect of such Commitment Percentage shall be solely for the account of the Swing Line
Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make all payments of principal and interest in respect of the Swing Line Advances directly to the Swing Line Lender.
Section 2.04 Letters
of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each Issuing Bank agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.04 and within the limits of its
Issuing Commitment, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars, any Alternative Currency (provided that CoBank
shall not be required to issue Letters of Credit denominated in a currency other than Dollars) or such other currency as maybe agreed by such Issuing Bank in its sole discretion and the Agent that is a lawful currency readily available and
freely transferable and convertible into Dollars (which additional currency, solely for purposes of the applicable Letter of Credit, the drawings thereunder and the reimbursement thereof, shall be deemed to be an “Alternative Currency”)
for the account of Holdings and its Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of Holdings and its Subsidiaries and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (1) the Total Revolving Credit Outstandings shall not exceed the Loan Cap, (2) the aggregate Outstanding Amount of the
Revolving Credit Advances of any Lender, plus such Lender’s Commitment Percentage of the Outstanding Amount of all Swing Line Advances, plus such Lender’s Commitment Percentage of the Outstanding Amount of all L/C Obligations
shall not exceed such Lender’s Revolving Credit Commitment, and (3) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by a Borrower for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and
conditions hereof, the ability of the Borrowers to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall
be subject to and governed by the terms and conditions hereof. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates or branches of such Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate or branch with respect to Letters of Credit issued by such Affiliate or branch.
(ii) No
Issuing Bank shall issue any Letter of Credit, if:
(A) subject to Section 2.04(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months
after the date of issuance, or, in the case of any Letter of Credit denominated in Indian rupees, nineteen months after the date of issuance, unless the Majority Lenders have approved such expiry date; or
(B) the
expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) No
Issuing Bank shall be under any obligation to issue any Letter of Credit if:
(A) any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or any Law applicable to such Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit
in particular or shall impose upon such Issuing Bank with respect to the Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or
shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which such Issuing Bank in good faith deems material to it;
(B) the
issuance of such Letter of Credit would violate one or more policies of such Issuing Bank applicable to letters of credit generally;
(C) except
as otherwise agreed by the Agent and such Issuing Bank, such Letter of Credit is in an initial stated amount less than $20,000;
(D) such
Letter of Credit is to be denominated in a currency other than Dollars or an Alternative Currency;
(E) any Lender is at that time a Defaulting Lender, unless such Issuing Bank has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such Issuing Bank (in its sole
discretion) with the applicable Borrower or such Lender to eliminate such Issuing Bank’s actual or potential Fronting Exposure (after giving effect to Section 2.14(a)(iv)) with respect to the Defaulting Lender arising from such Letter
of Credit; or
(F) the
Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.
(iv) The
applicable Issuing Bank shall not amend any Letter of Credit if such Issuing Bank would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The
applicable Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of
such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The applicable Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and such Issuing Bank shall have all of the
benefits and immunities (A) provided to the Agent in Article IX with respect to any acts taken or omissions suffered by such Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article IX included such Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein with respect to such Issuing
Bank.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of any Borrower delivered to an Issuing Bank (with a copy to the Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of such Borrower; provided that the Existing Letters of Credit shall be deemed issued under this Agreement on the Closing Date. Such Letter of Credit Application
must be received by the applicable Issuing Bank and the Agent (x) not later than 11:00 a.m. at least two Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in Dollars,
and (y) not later than 11:00 a.m. at least five Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of Credit denominated in an Alternative Currency; or in each case such later date and time
as such Issuing Bank may agree in a particular instance in its sole discretion, prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter
of Credit Application shall specify in form and detail reasonably satisfactory to such Issuing Bank: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case
of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as such Issuing Bank may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail reasonably satisfactory to such Issuing Bank (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature
of the proposed amendment; and (4) such other matters as such Issuing Bank may reasonably require. Additionally, Holdings and/or the applicable Subsidiary shall furnish to the applicable Issuing Bank and the Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such Issuing Bank or the Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable Issuing Bank will confirm with the Agent (by telephone or in writing) that the Agent has received a copy of such Letter of Credit
Application from a Borrower and, if not, such Issuing Bank will provide the Agent with a copy thereof. Unless such Issuing Bank has received written notice from any Lender, the Agent or any Loan Party, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article V shall not then be satisfied, then, subject to the terms and conditions hereof, such Issuing Bank
shall, on the requested date, issue a Letter of Credit for the account of such Borrower (or the applicable Subsidiary subject to Section 2.04(l)) or enter into the applicable amendment, as the case may be, in each case in accordance with such Issuing Bank’s usual and customary business practices. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such Issuing Bank a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Commitment Percentage
times the amount of such Letter of Credit.
(iii) If the applicable Borrower so requests in any applicable Letter of Credit Application, the applicable Issuing Bank may, in its sole discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension Letter of Credit must permit the such Issuing Bank to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such
Letter of Credit is issued. Unless otherwise directed by the applicable Issuing Bank, neither Holdings nor any Subsidiary shall be required to make a specific request to such Issuing Bank for any such extension. Once an Auto-Extension Letter
of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable Issuing Bank to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that such Issuing Bank shall not permit any such extension if (A) such Issuing Bank has determined that it would not be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.04(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on
or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Agent that the Majority Lenders have elected not to permit such extension or (2) from the Agent, any Lender, Holdings or the applicable Subsidiary
that one or more of the applicable conditions specified in Section 5.03 is not then satisfied, and in each such case directing such Issuing Bank not to permit such extension.
(iv) Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable Issuing Bank will also deliver to Holdings or the applicable Subsidiary and
the Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable Issuing Bank shall notify Holdings or the applicable Borrower and/or
Subsidiary and the Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the applicable Borrower shall reimburse such Issuing Bank in such Alternative Currency, unless (A) the applicable Issuing Bank (at its
option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the applicable Borrower shall have notified such Issuing Bank promptly
following receipt of the notice of drawing that Holdings, such Borrower or the applicable Subsidiary will reimburse such Issuing Bank in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit
denominated in an Alternative Currency, such Issuing Bank shall notify Holdings or the applicable Borrower and/or Subsidiary of the Dollar Equivalent of the amount of the drawing promptly following the determination thereof. If an Issuing Bank
shall make any payment under a Letter of Credit, Holdings or the applicable Borrower or Subsidiary shall reimburse such Issuing Bank through the Agent in an amount equal to the amount of such drawing and in the applicable currency not later
than 2:00 p.m. (or the Applicable Time in the case of reimbursement in an Alternative Currency) on Business Day following the date Holdings or the applicable Borrower or Subsidiary receives notice of such payment by the applicable Issuing Bank
(each such date, an “Honor Date”). If Holdings or the applicable Borrower or Subsidiary fails to so reimburse such Issuing Bank by such time, the Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed
drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency) (the “Unreimbursed Amount”), and the amount of such Lender’s Commitment Percentage
thereof. In such event, the applicable Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Credit Commitments and the conditions set forth in Section 5.03 (other
than the delivery of a Committed Advance Notice). Any notice given by such Issuing Bank or the Agent pursuant to this Section 2.04(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section 2.04(c)(i) make funds available (and the Agent may apply Cash Collateral provided for this purpose) for the account of the applicable Issuing
Bank, in Dollars, at the Agent’s Office in an amount equal to its Commitment Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Agent, whereupon, subject to the provisions of Section
2.04(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Advance to the applicable Borrower in such amount. The Agent shall remit the funds so received to such Issuing Bank in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Advances because the conditions set forth in Section 5.03 cannot be satisfied or
for any other reason, the applicable Borrower shall be deemed to have incurred from the applicable Issuing Bank an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on
written demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Agent for the account of such Issuing Bank pursuant to Section 2.04(c)(ii) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.04.
(iv) Until each Lender funds its Revolving Credit Advance or L/C Advance pursuant to this Section 2.04(c) to reimburse the applicable Issuing Bank for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Commitment Percentage of such amount shall be solely for the account of such Issuing Bank.
(v) Each Lender’s obligation to make Revolving Credit Advances or L/C Advances to reimburse the applicable Issuing Bank for amounts drawn under Letters of Credit, as contemplated by this Section 2.04(c),
shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such Issuing Bank, Holdings, any Borrower, any
other Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Revolving Credit Advances pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 5.03 (other than delivery by a Borrower of a Committed Advance Notice). No such
making of an L/C Advance shall relieve or otherwise impair the obligation of Holdings or the applicable Borrower and/or Subsidiary to reimburse such Issuing Bank for the amount of any payment made by such Issuing Bank under any Letter of
Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Agent for the account of the applicable Issuing Bank any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(ii), then, without limiting the other provisions of this Agreement, such Issuing Bank shall be entitled to recover from such Lender (acting through the Agent), on demand, such
amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Issuing Bank at a rate per annum equal to the applicable Overnight Rate from time to time in
effect, plus any administrative, processing or similar fees customarily charged by such Issuing Bank in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Revolving Credit Advance included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of such Issuing Bank submitted to any Lender
(through the Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after an Issuing Bank has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.04(c),
if the Agent receives for the account of such Issuing Bank any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from Holdings, any Borrower, any Subsidiary or otherwise, including proceeds of Cash
Collateral applied thereto by the Agent), the Agent will distribute to such Lender its Commitment Percentage thereof in the same funds as those received by the Agent.
(ii) If any payment received by the Agent for the account of an Issuing Bank pursuant to Section 2.04(c)(i) is required to be returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by such Issuing Bank in its discretion), each Lender shall pay to the Agent for the account of such Issuing Bank its Commitment Percentage thereof on demand of the Agent, plus interest
thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of Holdings or the applicable
Borrowers and Subsidiaries to reimburse an Issuing Bank for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement under all circumstances, including the following:
(i) any
lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
(ii) the
existence of any claim, counterclaim, setoff, defense or other right that Holdings, any Borrower or any other Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), an Issuing Bank or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto,
or any unrelated transaction;
(iii) any
draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay
in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any
payment by an Issuing Bank under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by an Issuing Bank under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver, interim receiver, monitor, or other representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
(v) any
adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to Holdings, any Borrower or any other Subsidiary or in the relevant currency markets generally; or
(vi) any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, Holdings, any Borrower or any other
Subsidiary.
Holdings or the applicable Borrower and/or Subsidiary shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with the instructions of Holdings or such Borrower or Subsidiary or other irregularity, Holdings or the applicable Borrower and/or Subsidiary will immediately notify the
applicable Issuing Bank. Holdings and its Subsidiaries shall be conclusively deemed to have waived any such claim against the applicable Issuing Bank and its correspondents unless such notice is given as aforesaid.
(f) Role of Issuing Banks. Each Lender and Holdings agrees, on behalf of
itself and its Subsidiaries, that, in paying any drawing under a Letter of Credit, an Issuing Bank shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the Issuing Banks, the Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of an Issuing Bank shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Majority Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer
Document. Holdings and its Subsidiaries hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit issued at its request; provided, however, that this
assumption is not intended to, and shall not, preclude Holdings or any Subsidiary pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Issuing Banks, the Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of an Issuing Bank shall be liable or responsible for any of the matters described in clauses (i) through (vi) of Section 2.04(e); provided,
however, that anything in such clauses to the contrary notwithstanding, Holdings or its Subsidiaries may have a claim against an Issuing Bank, and such Issuing Bank may be liable to Holdings or its Subsidiaries, to the extent, but only
to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Holdings or any Subsidiary which Holdings or such Subsidiary proves were caused by such Issuing Bank’s willful misconduct or gross negligence or such
Issuing Bank’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, an Issuing Bank may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such Issuing Bank shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the
applicable Issuing Bank and the applicable Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each Standby Letter of Credit, and
(ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance (the “UCP”) shall apply to each Trade Letter of Credit.
(h) Letter of Credit Fees. Lead Borrower shall pay (or shall cause to be paid) to the Agent for the account of each Lender in accordance with its Commitment Percentage a Letter of Credit fee (the “Letter
of Credit Fee”) (i) for each Trade Letter of Credit, equal to
Applicable Margin for Term SOFR Loans times the daily amount available to be drawn under such Letter of Credit, and (ii) for each Standby Letter of Credit equal to the Applicable Margin for Term SOFR Loans times the Dollar Equivalent of the daily amount available to be drawn under such
Letter of Credit; provided, however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral
satisfactory to the applicable Issuing Bank pursuant to this Section 2.04 shall be payable, to the maximum extent permitted by applicable Requirement of Law, to the other Lenders in accordance with the upward adjustments in their
respective Commitment Percentages allocable to such Letter of Credit pursuant to Section 2.14(a)(iv), with the balance of such fee, if any, payable to such Issuing Bank for its own account. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. Letter of Credit Fees shall be (i) due and payable in arrears on the first day of each calendar
quarter, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on written demand and (ii) computed on a quarterly basis in arrears. If there is any
change in the Letter of Credit Fee during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Letter of Credit Fee separately for each period during such quarter that such
Letter of Credit Fee was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Majority Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(i) Fronting Fee and Documentary and Processing Charges Payable to Issuing Banks. Lead Borrower shall pay (or shall cause to be paid) directly to the applicable Issuing Bank for its own account a fronting fee (i) with respect to each Trade
Letter of Credit, at the rate per annum equal to 0.15% (or such lesser amount to any respective Issuing Bank as Lead Borrower may agree in writing with such Issuing Bank), computed on the amount of such Letter of Credit, and payable upon the
issuance thereof, (ii) with respect to any amendment of a Trade Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between Lead Borrower and such Issuing Bank, computed on the amount of such increase,
and payable upon the effectiveness of such amendment, and (iii) with respect to each Standby Letter of Credit, at the rate per annum equal to 0.15% (or such lesser amount to any respective Issuing Bank as Lead Borrower may agree in writing with such Issuing Bank), computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears Such fronting fee shall be due and payable in arrears on the first calendar day of each
calendar quarter in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on written demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. In
addition, the applicable Borrower or, in the case of any Letter of Credit issued at the request of Holdings or a Subsidiary, Holdings or such Subsidiary shall pay directly to each Issuing Bank for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of such Issuing Bank relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable
on demand and are nonrefundable.
(j) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(k) Monthly Report. Each Issuing Bank, on the last Business Day of each month until the Termination Date, shall calculate the L/C Obligations on such date
in respect of Letters of Credit issued by it (converting any amounts of the L/C Obligations which are denominated in an Alternative Currency to Dollars for purposes of such calculation) and shall promptly send notice of such L/C Obligations to
the Agent, the Lead Borrower and each Lender, and the Agent shall then determine the excess amount, if any, referred to in the first sentence of Section 2.10(b)(i) and shall promptly inform the Lead Borrower of such amount and the Lead
Borrower shall promptly upon receipt thereof make the payments provided for in Section 2.10(b)(i) if applicable.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of,
or is for the account of, Holdings or a Subsidiary, the Borrowers shall be obligated to reimburse the applicable Issuing Bank hereunder for any and all drawings under such Letter of Credit. The Borrowers hereby acknowledge that the issuance of
Letters of Credit for the account of Holdings or the Subsidiaries inures to the benefit of Borrowers, and that the Borrowers’ business derives substantial benefits from the businesses of Holdings and such Subsidiaries.
Section 2.05 Fees. (a) Commitment Fee. The Borrowers agree to pay to the Agent for the account of
each Lender in accordance with its Commitment Percentage, a commitment fee equal to the Unused Commitment Fee Rate multiplied by the actual daily amount by which the Aggregate Commitments exceed the Total Revolving Credit Outstandings. The
commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article V is not met, and shall be due and payable quarterly in arrears on the first calendar
day of each Fiscal Quarter, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period.
(b) Other Fees. The Borrowers hereby agree to pay the fees and charges referred to in the Fee Letter.
Section 2.06 Reduction and Increase of the Revolving Credit Commitments; Additional Issuing Banks.
(a) Lead Borrower may, upon notice to the Agent, terminate the unused portions of the Letter of Credit Sublimit, the Swing Line Sublimit, or the unused Revolving
Credit Commitments, or from time to time permanently reduce the unused portions of the Letter of Credit Sublimit, the Swing Line Sublimit, or the unused Revolving Credit Commitments; provided that (i) any such notice shall be received by
the Agent not later than 11:00 a.m. four Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) Lead
Borrower shall not terminate or reduce the unused portions of the Letter of Credit Sublimit, the Swing Line Sublimit, or the unused Revolving Credit Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the
Total Revolving Credit Outstandings would exceed the Loan Cap and (iv) if, after giving effect to any reduction of the unused Revolving Credit Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Revolving Credit Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit, as applicable, shall be automatically reduced by the amount of such excess. The Agent will promptly notify the Lenders of any such notice of termination or
reduction of Commitments. A notice provided by Lead Borrower under this clause (a) may state that such notice is conditioned upon the availability of other financing or the consummation of a transaction constituting a Change in Control, in which
case such notice may be revoked by Lead Borrower (by notice to the Agent prior to the specified date of such termination or reduction) if such condition is not satisfied. The amount of any such Revolving Credit Commitment reduction shall not be
applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by Lead Borrower. Any reduction of any Commitments shall be applied to the Commitment of each applicable Lender according to its Commitment
Percentage. All fees accrued until the effective date of any termination of any Commitments shall be paid on the effective date of such termination.
(b) Lead Borrower shall have the right, at any time and from time to time after the Closing Date and prior to the Termination Date to (i) increase the amount of the
Revolving Credit Commitments, which increased Revolving Credit Commitments shall be provided by one or more Lenders (subject to the consent of such Lenders in their sole and absolute discretion) or Assuming Lenders (provided that any such
Assuming Lender shall be subject to the consent of the Agent and the Issuing Banks in their sole and absolute discretion) (any such increase, “Additional Revolving Commitments”), (ii) increase the Issuing Commitment of an Issuing Bank
(subject to the consent of such Issuing Bank in its sole and absolute discretion) and (iii) establish a new class of term loans under this Agreement on a “last-out” basis (any such term loans established in accordance with this Section 2.06(b),
“FILO Term Loans”), which FILO Term Loans shall be provided by one or more Lenders (subject to the consent of such Lenders in their sole and absolute discretion) or Assuming Lenders (provided that any such Assuming Lender shall be
subject to the consent of the Agent in its reasonable discretion) (each such increase or incurrence under clause (i), (ii) or (iii) being a “Commitment Increase”), on and subject to the following terms:
(i) The aggregate amount of Commitment Increases in the form of Additional Revolving Commitments and/or FILO Term Loans shall not exceed
$50,000,000.
(ii) The amount of each Commitment Increase by any Lender or any Assuming Lender shall be in a minimum amount of $10,000,000 or an integral
multiple of $5,000,000 in excess thereof.
(iii) Any such Commitment Increase in the form of Additional Revolving Commitments above shall be on the same terms as the Revolving Credit
Commitments, except with respect to (x) any commitment, arrangement, upfront, or similar fees payable in connection therewith and (y) subject to the immediately succeeding clause (iv), interest rates or unused fees.
(iv) In no event shall the interest rates or unused fees to be payable in connection with any Additional Revolving Commitments be higher than the
amounts paid to the then existing Lenders in respect of their applicable Revolving Credit Commitments, unless such increased interest rates or unused fees, as applicable, are also to be paid to all then existing Lenders in respect of their
applicable Revolving Credit Commitments.
(v) No proposed Commitment Increase in the form of Additional Revolving Commitments shall occur unless each of the following requirements in
respect thereof shall have been satisfied:
(A) The Agent shall have received from Lead Borrower an irrevocable written notice (a “Commitment Increase Notice”), dated not later than
10 days (or such shorter period reasonably agreed to by the Agent) before such proposed Commitment Increase Effective Date, that (1) specifies (w) (if applicable) the proposed Issuing Commitment increase of each Issuing Bank and/or of the Lenders
which are to become Issuing Banks and the amount of each Issuing Bank’s Issuing Commitment after giving effect thereto, (x) the aggregate amount of the proposed Commitment Increase, (y) the Lenders whose Revolving Credit Commitments are to be
increased by the proposed Commitment Increase and/or the Assuming Lenders which are to become Lenders and the amount by which each such Lender’s Revolving Credit Commitment is to be so increased and/or the amount of each such Assuming Lender’s
Revolving Credit Commitment and (z) the date (the “Commitment Increase Effective Date”) on which the proposed Commitment Increase shall become effective, and (2) has been signed by each Lender whose Revolving Credit Commitment is to be
increased, evidencing the consent of such Lender to the proposed Commitment Increase and Issuing Bank whose Issuing Commitment is to be increased evidencing the consent of such Issuing Bank thereto and/or by each such Assuming Lender; and
(B) On and as of the Commitment Increase Effective Date of the proposed Commitment Increase (1) the following statements shall be true (and the
giving of the applicable Commitment Increase Notice shall constitute a representation and warranty by Lead Borrower that on such Commitment Increase Effective Date such statements are true):
(x) The representations and warranties contained in Section 6.01 are true and correct in all material respects as of such date, as applicable, with the same effect as though made on and
as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and
except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects; and
(y) No event has occurred and is continuing, or would result from such Commitment Increase, which constitutes an Event of Default or Default; and
(z) The Agent shall have received such other approvals, opinions or documents as the Agent may reasonably request.
(vi) No proposed Commitment Increase in the form of FILO Term Loans shall occur unless each of the following requirements in respect thereof shall
have been satisfied:
(A) Such FILO Term Loans shall not have any obligors other than the Loan Parties and shall not be secured by any assets other than the
Collateral;
(B) Such FILO Term Loans shall not have a maturity date earlier than the Termination Date;
(C) Such FILO Term Loans shall not provide for any amortization or mandatory prepayments prior to the maturity thereof except for customary
amortization and mandatory prepayments reasonably acceptable to the Agent;
(D) The “borrowing base” in respect of such FILO Term Loans shall not include any assets not included in the definition of “Borrowing Base” but
such FILO Term Loans may provide for incremental advance rates different from those set forth in the definition of “Borrowing Base” so long as such advance rates do not permit the Total Revolving Credit Outstandings plus the aggregate principal
amount of the FILO Term Loans to exceed the Borrowing Base that would result on such date if each of the advance rates set forth in the definition of “Borrowing Base” were 95%;
(E) FILO Term Loans may not be repaid or prepaid other than to the extent set forth in clause (C) above and (x) in connection with a termination
of all of the Aggregate Commitments and payment in full in cash (or cash collateralization, as applicable) of all Revolving Credit Advances, Swing Line Loans and L/C Obligations and (y) at any time when the Payment Conditions to make a Restricted
Payment are satisfied;
(F) On and as of the Commitment Increase Effective Date of the proposed Commitment Increase, the following statements shall be true (and the
giving of the applicable Commitment Increase Notice shall constitute a representation and warranty by Lead Borrower that on such Commitment Increase Effective Date such statements are true):
(x) The representations and warranties contained in Section 6.01 are true and correct in all material respects as of such date, as applicable, with the same effect as though made
on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date)
and except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects; and
(y) No event has occurred and is continuing, or would result from such Commitment Increase, which constitutes an Event of Default or Default; and
(z) The Agent shall have received such other approvals, opinions or documents as the Agent may reasonably request.
(vii) Promptly following its receipt of a Commitment Increase Notice in proper form, the Agent shall deliver copies thereof to each Lender and
Issuing Bank. If, and only if, all of the terms, conditions and requirements specified in paragraphs (i) through (v) are satisfied in respect of any proposed Commitment Increase in the form of Additional Revolving Commitments on and as of the
proposed Commitment Increase Effective Date thereof and in the case of each such Assuming Lender, an Assumption Agreement, duly executed by such Assuming Lender, the Agent and the Lead Borrower, has been received by the Agent, then, as of such
Commitment Increase Effective Date and from and after such date, (1) the Revolving Credit Commitments of the Lenders consenting to such Commitment Increase shall be increased by the respective amounts specified in the Commitment Increase Notice
pertaining thereto, (2) references herein to the amounts of the Lenders’ respective Revolving Credit Commitments shall refer to respective amounts giving effect to such Commitment Increase, and (3) each such Assuming Lender shall be a Lender and
an Issuing Bank, if applicable, for all purposes hereof, and the Agent shall record all relevant information with respect to such Assuming Lender and its Revolving Credit Commitment and, if applicable, with respect to the increased Issuing
Commitment of an Issuing Bank in the Register;
(viii) It is understood that no Lender shall have any obligation whatsoever to agree to any request made by Lead Borrower for a Commitment Increase;
(ix) As part of such Commitment Increase in the form of Additional Revolving Commitments, such Lender or Assuming Lender shall purchase assignments
in the Revolving Credit Advances and Revolving Credit Commitments of the other Lenders so that after giving effect thereto, the percentage held by each Lender of the Aggregate Commitments is the same as prior to such Commitment Increase and such
Lender or Assuming Lender shall have acquired a ratable participation in all Swing Line Advances as contemplated by Section 2.03(c)). In connection therewith, on each Commitment Increase Effective Date, (A) each Lender whose Revolving
Credit Commitment has been increased (each such Lender being an “Increasing Lender”) shall, before 2:00 p.m. (New York City time) on such Commitment Increase Effective Date, make available for the account of its Lending Office to the Agent
at the address specified in Section 10.02, in same day funds, an amount equal to the excess of (1) such Increasing Lender’s ratable portion of the Revolving Credit Advances then outstanding (calculated based on its Revolving Credit
Commitment as a percentage of the Aggregate Commitments of the Lenders (including each such Assuming Lender) outstanding after giving effect to the relevant Commitment Increase) over (2) the aggregate principal amount of then outstanding
Revolving Credit Advances made by such Increasing Lender and (B) each such Assuming Lender shall before 2:00 p.m. (New York City time) on such Commitment Increase Effective Date, make available for the account of its Lending Office to the Agent
at the address specified in Section 10.02 in same day funds, an amount equal to such Assuming Lender’s ratable portion of the Revolving Credit Advances then outstanding (calculated based on its Revolving Credit Commitment as a percentage
of the Aggregate Commitments of the Lenders (including each such Assuming Lender) outstanding after giving effect to the relevant Commitment Increase); and
(x) As part of such Commitment Increase in the form of Additional Revolving Commitments, after the Agent’s receipt of such funds from each such
Increasing Lender and such Assuming Lender the Agent will promptly cause to be distributed like funds to the other Lenders for the account of their respective Lending Offices in an amount to each other Lender such that the aggregate amount of the
outstanding Revolving Credit Advances owing to each Lender (including each such Assuming Lender) after giving effect to such distribution equals such Lender’s ratable portion of the Revolving Credit Advances then outstanding (calculated based on
its Revolving Credit Commitment as a percentage of the Aggregate Commitments of the Lenders outstanding after giving effect to the relevant Commitment Increase).
(c) Lead Borrower may at any time, upon at least five Business Days’ prior written notice to the Agent and the Lenders or as part of a proposed Commitment Increase
pursuant to this Section 2.06, designate (i) as an Issuing Bank any Lender that has agreed in writing to act as an Issuing Bank and (ii) the Issuing Commitment of such Lender. Thereupon, any Lender so designated as an Issuing Bank shall
thenceforth issue Letters of Credit on the terms and subject to the conditions herein, and the Agent shall record all relevant information with respect to such Lender as such Issuing Bank in the Register.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that this Agreement shall be amended to the extent necessary
to reflect the existence and terms of any Commitment Increases incurred pursuant to this Section 2.06. Any such amendment may be effected in writing by the Agent and the Loan Parties and furnished to the other parties hereto.
Section 2.07 Repayment of Advances. (a) Each Borrower shall repay in full the principal amount of each Revolving Credit Advance made to it owing to each
Lender, together with accrued interest and fees thereon, on the Termination Date.
(b) Swing Line Advances. The applicable Borrower shall repay the Swing Line Lender and each Lender that has made a Swing Line Advance for the account of such
Borrower, on the earlier of (i) the date that is ten (10) days after the date of such Advance and (ii) the Termination Date, the principal amount of each such Swing Line Advance made to such Borrower by the Swing Line Lender and each such Lender
and outstanding on such date.
Section 2.08 Interest on Advances. Each Borrower shall pay interest on the unpaid principal amount of each Advance made to it by each Lender from the date of
such Advance until such principal amount shall be paid in full, at the following rates per annum:
(a) Base Rate Loans. If such Advance is a Base Rate Loan, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from time to time plus
(y) the respective Applicable Margin in effect from time to time, payable quarterly in arrears on the first calendar day of each Fiscal Quarter.
(b) Term SOFR Loans. If such Advance is a Term SOFR Loan, a rate per annum equal at all times during each Interest Period for such Advance to the sum of (x)
Term SOFR for such Interest Period plus (y) the Applicable Margin in effect from time to time, payable on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day which occurs
during such Interest Period every three months from the first day of such Interest Period.
(c) Swing Line Advances. If such Advance is a Swing Line Advance, the rate per annum for Base Rate Advances.
(d) Default Interest.
(i) If any amount of principal of any Advance is not paid when due, whether at stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Requirement of Law.
(ii) If any amount (other than principal of any Advance) payable by any Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Majority Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Requirement of Law.
(iii) Upon the request of the Majority Lenders or the Agent (or, in the case of any Event of Default under Section 8.01(e), automatically),
while any Event of Default exists, the Lead Borrower or the applicable Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Requirement of Law.
(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon written demand.
Section 2.09 Inability to Determine Rates.
(a) If in connection with any request for a Term SOFR Loan or a conversion of Base Rate Loans to Term SOFR Loans or a continuation of any of such Term SOFR Loans,
as applicable, (i) the Agent determines (which determination shall be conclusive absent manifest error) that (A) no Successor Rate has been determined in accordance with Section 2.09(b), and the circumstances under clause (i) of Section
2.09(b) or the Scheduled Unavailability Date has occurred, or (B) adequate and reasonable means do not otherwise exist for determining Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan or in connection
with an existing or proposed Base Rate Loan, or (ii) the Agent or the Majority Lenders determine in good faith that for any reason that Term SOFR for any requested Interest Period with respect to a proposed Term SOFR Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Term SOFR Loan, the Agent will promptly so notify the Lead Borrower and each Lender.
Thereafter, (x) the obligation of the Lenders to make or maintain Term SOFR Loans, or to convert Base Rate Loans to Term SOFR Loans, shall be suspended (to the extent
of the affected Term SOFR Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Term SOFR component of the Base Rate, the utilization of the Term SOFR component in
determining the Base Rate shall be suspended, in each case until the Agent (or, in the case of a determination by the Majority Lenders described in clause (ii) of this Section 2.09(a), until the Agent upon instruction of the Majority
Lenders) revokes such notice (which the Agent agrees to do if the circumstances giving rise to such notice no longer exist).
Upon receipt of such notice, (i) the Lead Borrower may revoke any pending request for a Borrowing of, or conversion to, or continuation of Term SOFR Loans (to the extent of the affected Term SOFR Loans or Interest
Periods) or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein and (ii) any outstanding Term SOFR Loans shall be deemed to have been converted
to Base Rate Loans immediately at the end of their respective applicable Interest Period.
(b) Replacement of Term SOFR or Successor Rate. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Agent
determines in good faith (which determination shall be conclusive absent manifest error), or the Lead Borrower or Majority Lenders notify the Agent (with, in the case of the Majority Lenders, a copy to the Lead Borrower) that the Lead Borrower or
Majority Lenders (as applicable) have determined in good faith, that:
(i) adequate and reasonable means do not exist for ascertaining one month, three month and six month interest periods of Term SOFR, including,
without limitation, because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) CME or any successor administrator of the Term SOFR Screen Rate selected by the Administrative Agent in its reasonable discretion or a
Governmental Authority having jurisdiction over the Agent or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which one month,
three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of U.S. dollar denominated syndicated loans, or shall or
will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Agent, that will continue to provide such interest periods of Term
SOFR after such specific date (the latest date on which one month, three month and six month interest periods of Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely, the “Scheduled Unavailability Date”);
then, on a date and time determined by the Agent (any such date, the “Term SOFR Replacement Date”), which date shall be at the end of an Interest Period or on
the relevant interest payment date, as applicable, for interest calculated and, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any Loan Document with
Daily Simple SOFR plus the SOFR Adjustment for any payment period for interest calculated that can be determined by the Agent, in each case,
without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate”).
If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will be payable on a quarterly basis.
Notwithstanding anything to the contrary herein, (i) if the Agent determines that Daily Simple SOFR is not available on or prior to the Term SOFR
Replacement Date, or (ii) if the events or circumstances of the type described in Section 2.09(b)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then in each case, the Agent and the Lead Borrower may
amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 2.09 at the end of any Interest Period, relevant interest payment date or payment period for interest
calculated, as applicable, with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and agented in the United States for such
alternative benchmark and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities syndicated and
agented in the United States for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Agent from time to time in its reasonable discretion and may be
periodically updated. For the avoidance of doubt, any such proposed rate and adjustments, shall constitute a “Successor Rate”. Any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Agent shall have
posted such proposed amendment to all Lenders and the Lead Borrower unless, prior to such time, Lenders comprising the Majority Lenders have delivered to the Agent written notice that such Majority Lenders object to such amendment.
The Agent will promptly (in one or more notices) notify the Lead Borrower and each Lender of the implementation of any Successor Rate.
Any Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not
administratively feasible for the Agent, such Successor Rate shall be applied in a manner as otherwise reasonably determined by the Agent.
Notwithstanding anything else herein, if at any time any Successor Rate as so determined would otherwise be less than 0.25%, the Successor Rate will be deemed to be 0.25% for the purposes of this
Agreement and the other Loan Documents.
In connection with the implementation of a Successor Rate, the Agent (in consultation with the Lead Borrower) 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 such Conforming Changes will become effective without any further action or consent of any other party to
this Agreement; provided that, with respect to any such amendment effected, the Agent shall post each such amendment implementing such Conforming Changes to the Lead Borrower and the Lenders reasonably promptly after such amendment
becomes effective.
For purposes of this Section 2.09, those Lenders that either have not made, or do not have an obligation under this Agreement to make, the relevant Loans in Dollars shall be excluded from any
determination of Majority Lenders.
(c) All computations of
interest for Base Rate Advances (including Base Rate Advances determined by reference to Term SOFR) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Advance for the day on which the Advance is made, and shall not
accrue on an Advance, or any portion thereof, for the day on which the Advance or such portion is paid; provided that any Advance that is repaid on the same day on which it is made shall, subject to Section 4.01(a), bear interest for one day. Each
determination by the Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. For the purposes of the Interest Act (Canada), the yearly rate of interest to which any rate calculated on the basis of a
period of time different from the actual number of days in the year (360 days, for example) is equivalent is the stated rate multiplied by the actual number of days in the year (365 or 366, as applicable) and divided by the number of days in the shorter period
(360 days, in the example), and the Canadian Guarantors acknowledge that there is a material distinction between the nominal and effective rates of interest and that they are capable of making the calculations necessary to compare such rates and that the
calculations herein are to be made using the nominal rate method and not on any basis that gives effect to the principle of deemed reinvestment of interest.
Section 2.10 Prepayments of Advances.
(a) Optional. (i) Any Borrower may, upon notice to the Agent, at any time or from time to time voluntarily prepay Advances made to it in whole or in part
without premium or penalty; provided that (A) such notice must be in a form acceptable to the Agent and received by the Agent not later than 11:00 a.m. (x) three Business Days prior to any date of prepayment of Term SOFR Advances, and (y)
on the date of prepayment of Base Rate Loans; (B) any prepayment of Term SOFR Advances shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof or, if less, the entire principal amount thereof then
outstanding; and (C) any prepayment of Base Rate Advances shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof or, if less, the entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Advances to be prepaid and, if Term SOFR Loans are to be prepaid, the Interest Period(s) of such Advances. The Agent will promptly notify each Lender of its receipt of each such
notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Commitment Percentage of the relevant Facility). If such notice is given by any Borrower, such Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified therein; provided that such notice of prepayment may state that such prepayment is conditioned upon the availability of other financing or the
consummation of a transaction constituting a Change in Control, in which case such notice may be revoked by the applicable Borrower (by notice to the Agent prior to the specified date of such prepayment) if such condition is not satisfied (it
being understood that any revocation by a Borrower of a notice of prepayment shall entitle the Lenders to any amounts as set forth in Section 10.04(b)). Any prepayment of a Term SOFR Loan shall be accompanied by all accrued interest
thereon, together with any additional amounts required pursuant to Section 10.04(b). Each such prepayment shall be paid to the Lenders in accordance with their respective Commitment Percentages.
(ii) Any Borrower may, upon notice to the applicable Swing Line Lender (with a copy to the Agent), at any time or from time to time, voluntarily
prepay Swing Line Advances made to it in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Agent not later than 1:00 p.m. on the date of the prepayment, and (B)
any such prepayment shall be in a minimum principal amount of $500,000 or, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment. If such notice is given by a
Borrower, such Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(b) Mandatory. (i) If for any reason the Total Revolving Credit Outstandings exceed the Loan Cap as then in effect, the Borrowers shall promptly (and in any
event, within one (1) Business Day) prepay, or cause to be repaid, Revolving Credit Advances, Swing Line Advances and/or Unreimbursed Amounts and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,
however, that, the Lead Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.10(b) unless after the prepayment in full of the Revolving Credit Advances, Swing Line Advances and
Unreimbursed Amounts the Total Revolving Credit Outstandings exceed the Loan Cap as then in effect. Upon notice by Lead Borrower to the Agent, the Agent shall release any Cash Collateral to the Lead Borrower to the extent that, after such a
release, the Total Revolving Credit Outstandings at such time shall not exceed the Loan Cap.
(ii) [Reserved].Upon the occurrence of a Disposition of the Temiscaming High-Yield Pulp & Paperboard Asset, the Borrowers shall promptly prepay, or cause to be repaid, the Revolving Credit Advances and/or Swing Line Advances in an aggregate
amount equal to the Net Proceeds received from the sale of ABL Priority Collateral pursuant to such Disposition; provided that the amount of the prepayment required pursuant to this clause (ii) shall not exceed the amount of Revolving Credit
Advances and/or Swing Line Advances outstanding at such time.
(iii) Prepayments of the Revolving Credit Facility by any Borrower made pursuant to this Section 2.10(b), first, shall be applied
ratably to the Unreimbursed Amounts and the Swing Line Advances owing by such Borrower, second, shall be applied ratably to the outstanding Revolving Credit Advances owing by such Borrower, and, third, shall be used to ratably
Cash Collateralize the remaining L/C Obligations of such Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from
the Lead Borrower or any other Loan Party) to reimburse the applicable Issuing Bank or the Lenders, as applicable.
Section 2.11 Increased Costs. (a) If, at any time after the date of this Agreement, any change in any Laws
(a “Change in Law”) shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by, any Lender Party;
(ii) subject any Lender Party to any Tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a
Letter of Credit or any Term SOFR Loan made by it, or change the basis of taxation of payments to such Lender Party in respect thereof (except for (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (e) of the definition of Excluded
Taxes and (C) Connection Income Taxes); or
(iii) impose on any Lender Party or the applicable interbank market any other condition, cost or expense (other than Taxes) affecting this
Agreement or Term SOFR Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Advance (or of maintaining its obligation to make any such Advance), or to increase
the cost to such Lender Party of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by
such Lender Party hereunder (whether of principal, interest or any other amount) then, the Lead Borrower shall from time to time, upon written demand by such Lender Party (with a copy of such written demand to the Agent), pay to the Agent for the
account of such Lender Party additional amounts sufficient to compensate such Lender Party for such increased cost. A certificate as to the amount of such increased cost setting forth the basis for the calculation of such increased costs,
submitted to the Lead Borrower and the Agent by such Lender Party, shall be conclusive and binding for all purposes, absent manifest error.
(b) If, at any time after the date of this Agreement, any Lender Party determines that compliance with any law or regulation or any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required or expected to be maintained by such Lender Party or any corporation controlling such Lender
Party and that the amount of such capital or liquidity is increased by or based upon the existence of such Lender Party’s commitment to lend hereunder and other commitments of this type or the issuance of (or commitment to purchase of
participations in) the Letters of Credit (or similar contingent obligations), then, upon written demand by such Lender Party (with a copy of such written demand to the Agent), the Lead Borrower shall immediately pay to the Agent for the account
of such Lender Party, from time to time as specified by such Lender Party, additional amounts sufficient to compensate such Lender Party or such corporation in the light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital or liquidity to be allocable to the existence of such Lender Party’s commitment hereunder. A certificate as to such amounts submitted to the Lead Borrower and the Agent by such Lender Party and setting forth
the basis for the calculation of such amount shall be conclusive and binding for all purposes, absent manifest error.
(c) Notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
(d) Without affecting its rights under Sections 2.11(a) or 2.10(b) or any other provision of this Agreement, each Lender Party agrees that if there
is any increase in any cost to or reduction in any amount receivable by such Lender Party with respect to which the Lead Borrower would be obligated to compensate such Lender Party pursuant to Sections 2.11(a) or 2.11(b), such
Lender Party shall use reasonable efforts to select an alternative issuing office or Lending Office which would not result in any such increase in any cost to or reduction in any amount receivable by such Lender Party; provided, however,
that no Lender Party shall be obligated to select an alternative issuing office or Lending Office if such Lender Party determines that (i) as a result of such selection such Lender Party would be in violation of any applicable Law, regulation,
treaty, or guideline, or would incur additional costs or expenses or (ii) such selection would be inadvisable for regulatory reasons or inconsistent with the interests of such Lender Party.
(e) Delay in Requests. Failure or delay on the part of any Lender Party to demand compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender Party’s right to demand such compensation; provided that the Lead Borrower shall not be required to compensate a Lender Party pursuant to the foregoing provisions of this Section for any increased
costs incurred or reductions suffered more than four months prior to the date that such Lender Party notifies the Lead Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender Party’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 four-month period referred to above shall be extended to include the period of retroactive effect thereof).
(f) Without prejudice to the survival of any other agreement of the Lead Borrower hereunder, the agreements and obligations of the Lead Borrower contained in this Section 2.11
shall survive the payment in full (after the Termination Date) of all Obligations.
Section 2.12 Illegality. (a) Notwithstanding any other provision of this Agreement, if any Lender shall
notify the Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful or impossible, or any central bank or other Governmental Authority asserts that it is unlawful, for any Lender or its
Lending Office to perform any of its obligations hereunder or make, maintain or fund or change interest with respect to any Credit Extension or to determine or charge interest rates based upon Term SOFR, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Lead Borrower through the Agent, (i) any
obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Credit Extension or to make or continue Term SOFR Advances or to convert Base Rate Advances to Term SOFR Advances, shall be suspended, and
(ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Advances the interest rate on which is determined by reference to the Term SOFR component of the Base Rate, the interest rate on which Base Rate Advances
of such Lender shall, if necessary to avoid such illegality, be determined by the Agent without reference to the Term SOFR component of the Base Rate. Upon receipt of such notice, (x) the Borrowers shall, within five (5) Business Days after
written demand from such Lender (with a copy to the Agent), prepay or convert all Term SOFR Advances of such Lender to Base Rate Advances (the interest rate on which Base Rate Advances of such Lender shall, if necessary to avoid such
illegality, be determined by the Agent without reference to the Term SOFR component of the Base Rate) either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Term SOFR Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Term SOFR Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon Term SOFR, the Agent shall during the period
of such suspension compute the Base Rate applicable to such Lender without reference to the Term SOFR component thereof, in each case, until the Agent is advised in writing by such Lender that it is no longer illegal for such Lender to
determine or charge interest rates based upon Term SOFR. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
(b) Without affecting its rights under Section 2.11(a) or under any other provision of this Agreement, each Lender agrees that if it becomes unlawful or
impossible for such Lender to make, maintain or fund its Term SOFR Loans as contemplated by this Agreement, such Lender shall use reasonable efforts to select an alternative Lending Office from which such Lender may maintain and give effect to
its obligations under this Agreement with respect to making, funding and maintaining such Term SOFR Loans; provided, however, that no Lender shall be obligated to select an alternative Lending Office if such Lender determines that
(i) as a result of such selection such Lender would be in violation of any applicable Law, regulation, or treaty, or would incur additional costs or expenses or (ii) such selection would be inadvisable for regulatory reasons or inconsistent with
the interests of such Lender.
Section 2.13 Cash Collateral. (a) Certain
Credit Support Events. Upon the request of the Agent or any Issuing Bank if, as of the Letter of Credit Expiration Date, any L/C Obligation in respect of Letters of Credit issued by such Issuing
Bank for any reason remains outstanding, the Lead Borrower shall immediately Cash Collateralize, or cause to be Cash Collateralized, the then Outstanding Amount of all such L/C Obligations at 103% of the face amount of such L/C Obligations. At
any time that there shall exist a Defaulting Lender and the aggregate unused Revolving Credit Commitments of the non-defaulting Lenders after taking into account the aggregate Outstanding Amount of the Revolving Credit Advances is insufficient
to cover all Fronting Exposure, immediately upon the request of the Agent, any Issuing Bank or the Swing Line Lender, the Lead Borrower shall deliver, or cause to be delivered, to the Agent Cash Collateral in an amount sufficient to cover all
Fronting Exposure (after giving effect to Section 2.14(a)(iv) and any Cash Collateral provided by the Defaulting Lender).
(b) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to
deposit) shall be maintained in blocked, non-interest bearing deposit accounts at the Agent (which Cash Collateral may, at the direction and sole risk of the Lead Borrower, be invested in Cash Equivalents that are pledged to the Agent). Each
Loan Party, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Agent, for the benefit of the Agent and the Lender Parties (including the Swing Line Lender), and agrees to maintain, a first
priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash
Collateral may be applied pursuant to Section 2.13(c). If at any time the Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Lead Borrower or the relevant Defaulting Lender will, promptly upon demand by the Agent, pay or provide or, in the case of the Lead Borrower,
cause to be paid or provided, to the Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.13 or Sections 2.03,
2.04, 2.10 or 8.01 in respect of Letters of Credit or Swing Line Advances shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Advances, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly
following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance
with Section 10.07(b)(vi))) or (ii) the Agent’s good faith determination that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released
during the continuance of a Default under Section 8.01(a) or (e) or an Event of Default (and following application as provided in this Section 2.13 may be otherwise applied in accordance with Section 8.01), and (y) the
Person providing Cash Collateral and the applicable Issuing Bank or Swing Line Lender may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
Section 2.14 Defaulting Lenders. (a) Adjustments. Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Requirement of Law:
(b) Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in the definition of Majority Lenders.
(c) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available to the Agent by that Defaulting Lender pursuant to Section 10.08), shall be applied at such time or
times as may be determined by the Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to any Issuing Bank or Swing Line Lender hereunder; third, if so determined by the Agent or requested by any Issuing Bank or
Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing Line Advance or Letter of Credit; fourth, as the Lead Borrower
may request (so long as no Default or Event of Default exists), to the funding of any Advance in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by the Agent and the Lead Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that
Defaulting Lender to fund Advances under this Agreement; sixth, to the payment of any amounts owing to the Lender Parties as a result of any judgment of a court of competent jurisdiction obtained by any
Lender Party against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the
payment of any amounts owing to any Loan Party as a result of any judgment of a court of competent jurisdiction obtained by such Loan Party against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any
Advances or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Advances or L/C Borrowings were made at a time when the conditions set forth in Section 5.03 were satisfied or
waived, such payment shall be applied solely to pay the Advances of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of, or L/C Borrowings owed to, that Defaulting
Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.14(a)(ii) shall be
deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(i) Certain Fees. That Defaulting Lender (x) shall be
entitled to receive any commitment fee pursuant to Section 2.05(a) for any period during which that Lender is a Defaulting Lender only to extent allocable to its Commitment Percentage of the stated amount of Letters of Credit and Swing Line Advances for which it has provided Cash Collateral pursuant to Section 2.03, Section 2.04, Section 2.13, or Section 2.14(a)(ii), as
applicable (and Borrowers shall (A) be required to pay to each of the Issuing Banks and the Swing Line Lender, as applicable, the amount of such fee allocable to its Fronting Exposure arising from that Defaulting Lender and (B) not be
required to pay the remaining amount of such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.04(h).
(ii) Reallocation of Commitment Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for
purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit or Swing Line Advances pursuant to Sections 2.03 and 2.04, the “Commitment
Percentage” of each non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided, that the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit and Swing Line Advances shall not exceed the positive difference, if any, of (1) the Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Revolving Credit Advances
of that Lender. Subject to Section 10.22, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender,
including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(iii) Cash Collateral, Repayment of Swing Line Advances. To the extent the reallocation described in clause (a)(iv) above cannot,
or can only partially, be effected, the Lead Borrower shall to such extent, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first, prepay Swing Line Advances in an amount equal to the Swing Line
Lender’s Fronting Exposure and (y) second, Cash Collateralize the Issuing Banks’ Fronting Exposure in accordance with the procedures set forth in Section 2.13.
(c) Defaulting Lender Cure. If the Lead Borrower, the Agent, the Swing Line Lender and the Issuing Banks agree in
writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Advances of the other Lenders or take such other actions as the Agent
may determine to be necessary to cause the Revolving Credit Advances and funded and unfunded participations in Letters of Credit and Swing Line Advances to be held on a pro rata basis by the Lenders in accordance with their Commitment Percentages
(without giving effect to Section 2.14(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of
any Loan Party 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.
Section 2.15 Designated Borrowers.
(a) The Lead Borrower may at any time, and from time to time on or after the Effective Date, upon not less than 10 Business Days’ written notice from the
Lead Borrower to the Agent (or such shorter period as may be agreed by the Agent in its sole discretion, without any requirement for Lender consent), designate any of Holdings’ Wholly Owned Subsidiaries that is a Domestic Subsidiary and a Loan
Party as a “Designated Borrower” for purposes of this Agreement, and such Wholly Owned Subsidiary that is a Domestic Subsidiary and a Loan Party shall thereupon become a “Designated Borrower” for purposes of this Agreement and, as such, shall
have all of the rights, privileges and obligations of a Borrower hereunder, provided (x) it has executed and delivered to the Agent a Designated Borrower Joinder Agreement and (y) it has delivered to each Lender any documentation and other
information with respect to such Designated Borrower required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act, the Beneficial
Ownership Regulation and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) reasonably requested by the Agent or any Lender, and each Lender shall have confirmed satisfaction with such documentation (such confirmation
not to be unreasonably withheld, conditioned or delayed). The Agent shall promptly notify each Lender, each Issuing Bank and the Swing Line Lender of each such designation by the Lead Borrower and the identity of the respective Wholly Domestic
Subsidiary that is a Domestic Subsidiary and a Loan Party.
(b) Upon the payment and performance in full of all of the Obligations under this Agreement of any Designated Borrower in its capacity as such (other than any
contingent indemnification obligations for which no claim has been made and the Outstanding Amount of all L/C Obligations with respect to Letters of Credit (if any) issued for the account of such Designated Borrower that have been Cash
Collateralized), such Designated Borrower’s status as a “Designated Borrower” (but not its status as a Guarantor unless released in accordance with Section 3.09) shall terminate automatically upon written notice by the Lead Borrower to the Agent
(which written notice the Agent shall give promptly to each Lender, each Issuing Bank and the Swing Line Lender). Thereafter, the Lenders shall be under no further obligation to make any Advance to, or issue any Letter of Credit for the account
of, such former Designated Borrower until such time, if ever, as it has been re-designated a Designated Borrower by the Lead Borrower.
ARTICLE III
GUARANTY
Section 3.01 Guaranty.
(a) Each Loan Party hereby agrees that such Loan Party is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Agent,
Lenders, Hedge Banks, Supply Chain Banks or Cash Management Banks, the other Secured Parties and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of,
all Obligations owed or hereafter owing to the Agent and Secured Parties by each other Loan Party (and Subsidiaries, in the case of Obligations under Secured Hedge Agreements, Secured Supply Chain Financing and Bank Product Documents). Each Loan
Party agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Article III shall not be discharged (subject to Section 3.09) until the
Release Date, and that its obligations under this Article III shall be absolute and unconditional, irrespective of, and unaffected by,
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document,
Secured Hedge Agreement, Secured Supply Chain Financing or Bank Product Document or any other agreement, document or instrument to which any Loan Party is or may become a party;
(ii) the absence of any action to enforce this Agreement (including this Article III) or any other Loan Document, Secured Hedge Agreement,
Secured Supply Chain Financing or Bank Product Document or the waiver or consent by the Agent and Lenders, Hedge Banks, Supply Chain Banks or Cash Management Banks, as applicable, with respect to any of the provisions thereof;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence
of any action, by the Agent and Lenders, Hedge Banks, Supply Chain Banks or Cash Management Banks in respect thereof (including the release of any such security);
(iv) the insolvency of any Loan Party;
(v) any amendment, alteration, novation or variation in any manner and to any extent (and irrespective of the effect of the same on any Guarantor)
of any of the Obligations, any liabilities and obligations of any surety, and any security of any one or more of the Secured Parties’ arrangements with the Loan Parties or any other Person; or
(vi) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
The guaranty provided in this Article III shall continue to be effective or be reinstated, as the case may be, if at any time any payment of
any of the Obligations is rescinded or must otherwise be returned by any Swing Line Lender, any Issuing Bank, any Lender or other Secured Party, respectively, upon the insolvency, bankruptcy or reorganization of a Loan Party or otherwise, all
as though such payment had not been made.
(b) Each Loan Party shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guarantied hereunder. Each Loan Party
expressly represents and acknowledges that it is part of a common enterprise with the other Loan Parties and that any financial accommodations by Lenders, Hedge Banks, Supply Chain Banks or Cash Management Banks or any of them, to any other Loan
Party (or any Subsidiary) hereunder and under the other Loan Documents, Secured Hedge Agreements, Secured Supply Chain Financings or Bank Product Documents are and will be of direct and indirect interest, benefit and advantage to all Loan
Parties.
Section 3.02 Waivers by Loan Parties. Each Loan Party expressly waives, to the extent permitted by law, all
rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel the Agent or any other Secured Party to marshal assets or to proceed in respect of the Obligations guarantied hereunder
against any other Loan Party, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, such Loan Party. It is agreed among each Loan Party,
the Agent, the Issuing Banks, Lenders and other Secured Parties that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Article III
and such waivers, the Agent, the Issuing Banks, Lenders and other Secured Parties would decline to enter into this Agreement. Each Loan Party expressly waives diligence, presentment and demand (whether for non-payment or protest or of
acceptance, maturity, extension of time, change in nature or form of the Obligations, acceptance of further security, release of further security, composition or agreement arrived at as to the amount of, or the terms of, the Obligations, notice
of adverse change in any Loan Party’s financial condition or any other fact which might increase the risk to another Loan Party).
Section 3.03 Benefit of Guaranty; Stay of Acceleration. Each Loan Party agrees that the provisions of
this Article III are for the benefit of the Secured Parties and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Loan Party and the Agent or any other
Secured Party, the obligations of such other Loan Party under the Loan Documents, Secured Hedge Agreements, Secured Supply Chain Financings or Bank Product Documents.
Section 3.04 Subordination of Subrogation, Etc. Notwithstanding anything to the contrary in this Agreement
or in any other Loan Document, and except as set forth in Section 3.07, each Loan Party hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement,
exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Release Date. Each Loan Party acknowledges and agrees that this subordination is intended to
benefit the Agent and the other Secured Parties and shall not limit or otherwise affect such Loan Party’s liability hereunder or the enforceability of this Article III, and that the Agent, the other Secured Parties and their respective
successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 3.04.
Section 3.05 [Reserved].
Section 3.06 Limitation. Notwithstanding any provision herein contained to the
contrary, each Loan Party’s liability under this Article III shall be limited to an amount not to exceed as of any date of determination the greater of:
(a) the amount of all Advances advanced to (and L/C Obligations incurred on behalf of) the Borrowers and;
(b) the amount that could be claimed by the Agent and the other Secured Parties from such Loan Party under this Article III without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar foreign or domestic statute or common law after taking into
account, among other things, such Loan Party’s right of contribution and indemnification from each other Loan Party under Section 3.07.
Section 3.07 Contribution with Respect to Guaranty Obligations.
(a) To the extent that any Loan Party shall make a payment under this Article III of all or any of the Obligations (other than (i) Advances made to a
Borrower for which it is primarily liable and (ii) the Obligations of such Loan Party as a counterparty under any Secured Hedge Agreement or direct obligor under any Bank Product Document or Secured Supply Chain Financing) (a “Guarantor
Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any other Loan Party, exceeds the amount that such Loan Party would otherwise have paid if each Loan Party had paid the aggregate
Obligations satisfied by such Guarantor Payment in the same proportion that such Loan Party’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each Loan
Party as determined immediately prior to the making of such Guarantor Payment, then, following the Release Date, such Loan Party shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Loan
Party for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(b) As of any date of determination, the “Allocable Amount” of any Loan Party shall be equal to the maximum amount of the claim that could then be recovered
from such Loan Party under this Article III without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 3.07 is intended only to define the relative rights of the Loan Parties and nothing set forth in this Section 3.07 is intended to
or shall impair the obligations of the Loan Parties, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of, and subject to the limitations contained in, this Agreement,
including Section 3.01. Nothing contained in this Section 3.07 shall limit the liability of any Borrower to pay the Advances made directly or indirectly to that Borrower and accrued interest, fees and expenses with respect
thereto for which such Borrower shall be primarily liable.
(d) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Loan Parties to which such
contribution and indemnification is owing.
(e) The rights of the indemnifying Loan Parties against other Loan Parties under this Section 3.07 shall be exercisable upon the Release Date.
Section 3.08 Liability Cumulative. The liability of each Loan Party under this Section 3.08 is in
addition to and shall be cumulative with all liabilities of such Loan Party to the Agent and Lenders under this Agreement and the other Loan Documents to which such Loan Party is a party or in respect of any Obligations or obligation of the
other Loan Parties, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
Section 3.09 Release of Borrowers and Guarantors. The Obligations of any Loan Party (other than Lead Borrower and Holdings) shall automatically terminate
and be of no further force or effect and such Loan Party shall be automatically released from all obligations under this Agreement and all Loan Documents upon:
(a) the sale, disposition, exchange or other transfer (including through merger, consolidation amalgamation or otherwise) of the Capital Stock (including any sale,
disposition or other transfer following which the applicable Loan Party is no longer a Restricted Subsidiary) of the applicable Loan Party to a Person that is not a Loan Party if such sale, disposition, exchange or other transfer is made in a
manner not in violation of this Agreement and for a bona fide business purpose other than causing the release of such Guaranty;
(b) the designation of such Loan Party as an Unrestricted Subsidiary in accordance with the provisions of the definition of “Unrestricted Subsidiary”;
(c) such Subsidiary becomes an Excluded Subsidiary (as evidenced by a notice in writing from an Officer of Lead Borrower); or
(d) the Release Date;
provided, that no Loan Party shall be released pursuant to clauses (a), (b) or (c) above to the extent such Loan Party is a borrower, issuer or guarantor in respect of any Senior
Debt or any Future Term Loan Pari Passu Indebtedness or Future Notes Indebtedness (each, as defined in the ABL Intercreditor Agreement, as applicable), unless such borrower, issuer or guarantor is substantially concurrently released with respect to such Senior Debt or Future Term Loan Pari Passu Indebtedness or Future Notes Indebtedness upon such release hereunder.
ARTICLE IV
PAYMENTS, TAXES, EXTENSIONS, ETC.
Section 4.01 Payments Generally; Agent’s Clawback. (a) General. All payments to be made by any Loan Party shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by any Loan Party hereunder shall be made to the Agent, for the account of the respective Lenders to which such payment is
owed, at the Agent’s Office and in Same Day Funds not later than 2:00 p.m. on the date specified herein. The Agent will promptly distribute to each Lender its Commitment Percentage in respect of the relevant Facility (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue. If any payment to be made by any Loan Party shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be included in
computing interest or fees, as the case may be.
(b) Funding by Lenders; Presumption by Agent. Unless the Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that
such Lender will not make available to the Agent such Lender’s share of such Borrowing, the Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such
assumption, make available to the applicable Loan Party a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Agent, then the applicable Lender and the applicable Loan
Party severally agree to pay to the Agent forthwith on written demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to such Loan Party to but excluding
the date of payment to the Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate and (B) in the case of a payment to be made by a Loan Party, the interest rate applicable to Base Rate Advances. If the applicable
Loan Party and such Lender shall pay such interest to the Agent for the same or an overlapping period, the Agent shall promptly remit to such Loan Party the amount of such interest paid by such Loan Party for such period. If such Lender pays its
share of the applicable Borrowing to the Agent, then the amount so paid shall constitute such Lender’s Advance included in such Borrowing. Any payment by a Loan Party shall be without prejudice to any claim such Loan Party may have against a
Lender that shall have failed to make such payment to the Agent.
(c) Payments by Borrowers; Presumptions by Agent. Unless the Agent shall have received notice from the applicable Loan Party prior to the time at which
any payment is due to the Agent for the account of the Lender Parties hereunder that such Loan Party will not make such payment, the Agent may assume that such Loan Party has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Appropriate Lenders or the Issuing Banks, as the case may be, the amount due. In such event, if the applicable Loan Party has not in fact made such payment, then each of the Appropriate Lenders or
Issuing Banks, as the case may be, severally agrees to repay to the Agent forthwith on demand the amount so distributed to such Lender Party, in Same Day Funds with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Agent, at the Overnight Rate.
With respect to any payment that the Agent makes for the account of any Lender Party hereunder as to which the 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 applicable Loan Party has not in fact made such payment; (2) the Agent has made a payment in excess of the amount so
paid by the applicable Loan Party (whether or not then owed); or (3) the Agent has for any reason otherwise erroneously made such payment; then each of the Lender Parties severally agrees to repay to the Agent forthwith on demand the
Rescindable Amount so distributed to such Lender Party, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Agent, at the
greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation.
A notice of the Agent to any Lender or the applicable Loan Party with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest
error.
(d) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Agent funds for any Advance to be made by such Lender to any Loan Party
as provided in the foregoing provisions of this Article IV, and such funds are not made available to such Loan Party by the Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied
or waived in accordance with the terms hereof, the Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Advances, to fund participations in Letters of Credit and Swing Line
Advances and to make payments pursuant to Section 10.04(d) are several and not joint. The failure of any Lender to make any Advance, to fund any such participation or to make any payment under Section 10.04(d) 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 failure of any other Lender to so make its Advance, to purchase its participation or to make
its payment under Section 10.04(d).
(f) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Advance 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 Advance in any particular place or manner.
Section 4.02 Taxes. (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) For purposes of this Section 4.02, the term “Lender” includes the Swing Line Lender and any Issuing Bank.
(ii) All payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for
any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the applicable withholding agent) require the deduction or withholding of any Tax in respect of any such payment by any Loan
Party, then (A) the applicable withholding agent shall withhold or make such deductions as are determined by it to be required, (B) the applicable withholding agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any
required withholding or deductions have been made (including any withholding or deductions in respect of Indemnified Taxes applicable to additional sums payable under this Section 4.02) the applicable Lender (or, in the case of any
payment made to the Agent for its own account, the Agent) receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(b) Payment of Other Taxes by the Lead Borrower. Without limiting the provisions of subsection (a) above, the Lead Borrower shall timely pay to the
relevant Governmental Authority in accordance with applicable Laws, or at the option of the Agent timely reimburse it for the payment of, any Other Taxes.
(c) Tax Indemnification. Each of the Loan Parties shall, and does hereby agree to, jointly and severally indemnify each Recipient, and shall make payment
in respect thereof within 10 Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable by such Loan Party under this Section 4.02)
payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any reasonable expenses arising therefrom or with respect thereto, regardless of whether 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 Lead Borrower by a Lender Party (with a copy to the Agent), or by the Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority as provided in this Section 4.02,
the Lead Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Agent.
(e) Status of Lenders; Tax Documentation.
(i) In addition to the requirement set forth in subsection (iii) below, any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to any payments made under any Loan Document shall deliver to the Lead Borrower and the Agent, at the time or times reasonably requested by the Lead Borrower or the Agent, such properly completed and executed
documentation reasonably requested by the Lead Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition to the requirements set forth in the preceding sentence and
subsection (iii) below, any Lender, if reasonably requested by the Lead Borrower or the Agent, shall deliver such other documentation prescribed by applicable Laws or reasonably requested by the Lead Borrower or the Agent as will enable the Lead
Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements and shall otherwise cooperate with the Lead Borrower and the Agent to minimize the amount payable by any Loan
Party pursuant to this Section 4.02.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a United States Person shall deliver to the Lead Borrower and the 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 Lead Borrower or the Agent), two properly completed and duly executed originals 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 eligible to do so, deliver to the Lead Borrower and the Agent 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 Lead Borrower or the Agent), two properly completed and duly executed originals of whichever of the following
is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) 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 W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, United States federal withholding tax pursuant to the “business profits” or “other
income” article of such tax treaty;
(2) IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) or 871(h) of the Code, (x)
a properly completed and duly executed 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 any
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, and that no payments to be made to such Foreign Lender under any Loan Document will be
effectively connected with its conduct of a U.S. trade or business (a “United States Tax Compliance Certificate”) and (y) IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4) to the extent a Foreign Lender is not the beneficial owner (e.g., where the Foreign Lender is a partnership or a participating Lender), IRS
Form W-8IMY, accompanied by copies of IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a properly completed and duly executed United States 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 partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender
are claiming the portfolio interest exemption, such Foreign Lender may provide a United States Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of such direct and indirect partner(s);
(C) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Lead Borrower and the Agent 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 Lead Borrower or the Agent), two properly completed and duly executed originals of any other documentation
prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Laws to permit the
Lead Borrower or the Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were
to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Lead Borrower and the Agent at the time or times
prescribed by applicable Laws and at such time or times reasonably requested by the Lead Borrower or the Agent such documentation prescribed by applicable Laws (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Lead Borrower or the Agent as may be necessary for the Lead Borrower and the Agent to comply with their obligations under FATCA, to determine whether 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” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any documentation it previously delivered pursuant to this Section 4.02 expires or becomes obsolete or
inaccurate in any respect, it shall promptly update such documentation or promptly notify the Lead Borrower and the Agent in writing of its legal ineligibility to do so.
(iv) Notwithstanding anything to the contrary in this Section 4.02(e), no Lender shall be required to deliver any documentation that such
Lender is not legally eligible to deliver.
(v) Each Lender hereby authorizes the Agent to deliver to the Lead Borrower and to any successor Agent any documentation provided by such Lender
to the Agent pursuant to this Section 4.02(e).
(f) Treatment of Certain Tax Refunds. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund (whether
such refund is received in cash or applied against any other tax liability) of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 4.02,
it shall pay to the applicable Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 4.02 with respect to the Taxes giving rise to such
refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the applicable
Loan Party, upon the request of the Recipient, shall repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient
is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the applicable Loan Party pursuant to this
subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or
otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient to make available its Tax returns (or any other information
relating to its Taxes that it deems confidential) to any Loan Party or any other Person.
(g) Each Lender claiming any additional amounts payable pursuant to this Section 4.02 shall take all reasonable actions requested by the Lead Borrower to
minimize the amount payable by any Loan Party pursuant to this Section 4.02; provided, that such actions would not subject such Lender to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to
such Lender and that no Lender shall be obliged to disclose to any Loan Party any information regarding its tax affairs or tax computations or to reorder its tax affairs or tax planning pursuant thereto.
(h) Survival. Each party’s obligations under this Section 4.02 shall survive the resignation or replacement of the Agent or any assignment of rights
by, or the replacement of, a Lender Party, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
(i) For purposes of this Section 4.02, the term “Lender” includes any Issuing and any Swing Line Lender.
Section 4.03 Sharing of Payments 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 the Revolving Credit Advances made by it, or the participations in L/C Obligations or in Swing Line Advances held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Revolving Credit Advances or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater
proportion shall (a) notify the Agent of such fact, and (b) purchase (for cash at face value) participations in the Revolving Credit Advances and subparticipations in L/C Obligations and Swing Line Advances 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 of and accrued interest on their respective Revolving Credit Advances
and other amounts owing them; provided that:
(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of any Loan Party pursuant to and in
accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.13,
or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Advances or subparticipations in L/C Obligations or Swing Line Advances to any assignee or
participant, other than an assignment to the Lead Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable
Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.
For purposes of clause (b) of the definition of Excluded Taxes, any participation acquired pursuant to this Section 4.03 shall be treated as having been
acquired on the earlier date(s) in which such Lender acquired the applicable interest(s) in the Commitment(s) to which such participation relates.
Section 4.04 Evidence of Debt/Borrowings. (a) Each Lender Party shall maintain in accordance with its usual practice an account or accounts evidencing the
indebtedness of any Loan Party to such Lender Party resulting from each Advance owing to such Lender Party from time to time, including the amounts of principal and interest payable and paid to such Lender Party from time to time hereunder.
(b) The Register maintained by the Agent pursuant to Section 10.07(c) shall include a control account, and a subsidiary account for each Lender Party, in
which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising such Borrowing and the Interest Period applicable thereto, (ii) the terms of each Assignment and
Acceptance delivered to and accepted by it, (iii) the amount of any principal or interest due and payable or to become due and payable from each Loan Party to each Lender Party hereunder, and (iv) the amount of any sum received by the Agent from
any Loan Party hereunder and each Lender Party’s share thereof.
(c) The entries made in the Register shall be conclusive and binding for all purposes, absent manifest error.
(d) Upon the request of any Lender to the Lead Borrower made through the Agent, the Lead Borrower shall execute and deliver, or cause to be executed and delivered,
to such Lender (through the Agent) a Note, which shall evidence such Lender’s Advances to the Loan Parties in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable),
amount, currency and maturity of its Advances and payments with respect thereto.
ARTICLE V
CONDITIONS OF LENDING
Section 5.01 Conditions Precedent to Effective Date. This Agreement shall become effective on and as of the first date on which the following conditions
precedent have been satisfied or waived:
(a) The Agent shall have received the following in form and substance reasonably satisfactory to the Agent.
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Lead Borrower.
(ii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving
transactions of the type contemplated by this Agreement and each of the Loan Documents to which it is a party on the Effective Date or is to be a party on the Closing Date.
(iii) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S.
Loan Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) the certificate or articles of incorporation (or similar Constitutive Document) of
each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of
incorporation (or similar constitutive document) on file in such office, (B) as regards U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the
date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as
to the good standing (or local equivalent) of each Canadian Guarantor (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or
formation of such Canadian Guarantor).
(iv) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such
Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder.
(v) [Reserved].
(vi) At least three days prior to the Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(vii) Upon the reasonable request of any Lender made at least ten (10) days prior to the Effective Date, such documentation and other information so
requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), in each case at least three
days prior to the Effective Date.
The Agent shall notify Lead Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
Section 5.02 Conditions Precedent to the Closing Date. The obligation of each Lender to make an Advance
(including a Swing Line Advance), and the obligation of each Issuing Bank to Issue each Letter of Credit, in each case, on the Closing Date shall be subject to satisfaction of each of the conditions set forth in Section 5.03 below and
the following conditions precedent in each case on or prior to December 31, 2020:
(a) The Effective Date shall have occurred.
(b) The Agent shall have received the following in form and substance reasonably satisfactory to the Agent:
(i) The notes to the order of the Lenders to the extent requested by any Lender no later than three Business Days prior to the Closing Date
pursuant to Section 4.04(d).
(ii) Duly executed copies of (A) the U.S. Security Agreement, to be dated the Closing Date, and all exhibits and schedules thereto, (B) the
Canadian Security Agreements, to be dated the Closing Date (provided that the deed of movable hypothec may be dated prior to the Closing Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements,
to be dated the Closing Date in form and substance reasonably satisfactory to Agent, and all exhibits and schedules thereto.
(iii) Certified copies of the resolutions of the Board of Directors (or persons performing similar functions) of each Loan Party approving
transactions of the type by each of the Loan Documents to which it is or is to be a party on the Closing Date (or a certificate of the Secretary or an Assistant Secretary of Lead Borrower certifying such resolutions delivered on the Effective
Date pursuant to Section 5.01(a)(ii) remain in full force and effect).
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan
Party listing (or, as regards a Canadian Guarantor, a certificate of the Secretary or an Assistant Secretary of each Canadian Guarantor certifying a copy of) the certificate or articles of incorporation (or similar Constitutive Document) of each
such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such Governmental Authority) (or certifying that there have been no changes to such Person’s certificate or articles of incorporation (or similar
constitutive document) since the Effective Date) and (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in such office, (B) as regards
U.S. Loan Parties, certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such
Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The Canadian Guarantors shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Guarantor (to the extent
available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Guarantor).
(v) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such
Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder (or certifying no change to the certificate delivered on the Effective Date pursuant to Section 5.01(a)(v)).
(vi) A favorable opinion of Wachtell, Lipton, Rosen & Katz, McCarthy Tetrault LLP and Potter, Anderson & Corroon LLP, special counsel to
the Loan Parties, in each case in a form reasonably acceptable to the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(vii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on
Schedule 7.01(p) (which may be supplemented on the Closing Date with the approval of the Agent, not to be unreasonably withheld, conditioned or delayed), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien
searches reasonably necessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed,
and/or made; (2) all filing and recording fees and taxes shall have been duly paid and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Holdings and its Subsidiaries.
(viii) A certificate of a Responsible Officer of Lead Borrower to the effect set forth in Section 5.02(c), 5.02(d), 5.02(g),
5.03(a) and 5.03(b) below.
(ix) A certificate of the chief financial officer of Holdings to the effect that, after giving effect to the Transactions and the incurrence of any
Revolving Credit Advances made and Letters of Credit issued on the Closing Date, (x) Holdings and its Subsidiaries, on a Consolidated basis, are Solvent and (y) each of the Canadian Guarantors, on an individual basis, is Solvent.
(c) There shall not have occurred since December 31, 2019 any event or condition that has had or could be reasonably expected, either individually or in the
aggregate, to have a Material Adverse Change.
(d) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any
arbitrator or Governmental Authority that is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(e) Lead Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of
counsel to the Agent).
(f) The Refinancing shall have been (or substantially concurrently shall be) consummated.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Closing Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to,
the Closing Date, Availability plus the amount of cash and Cash Equivalents of Lead Borrower and its Restricted Subsidiaries shall be not less than $150.0 million.
(h) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Month ended on October 30, 2020, and executed by a
Responsible Officer of Lead Borrower.
Section 5.03 Conditions Precedent to Credit Extension. The obligation of each Lender to make an Advance (including a Swing Line Advance) on and after the
Closing Date, including on the occasion of each Borrowing (including the initial Borrowing), and the obligation of each Issuing Bank to Issue each Letter of Credit (including the initial Letter of Credit) shall be subject to the further
conditions precedent that on the date of such Credit Extension the following statements shall be true (and each of the giving of the applicable Request for Credit Extension and the acceptance by any Borrower shall constitute a representation and
warranty by such Borrower that on the date of such Credit Extension such statements are true):
(a) The representations and warranties contained in Section 6.01 are true and correct in all material respects as of such date (other than in respect of an
amendment, extension or renewal of a Letter of Credit without any increase in the stated amount of such Letter of Credit), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) and except to the extent such representations and warranties are
qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects;
(b) No event has occurred and is continuing, or would result from such Credit Extension or from the application of the proceeds therefrom, which constitutes an Event
of Default or Default; and
(c) Immediately after giving effect to the Credit Extension requested to be made on any such date and the use of proceeds thereof, Availability shall be greater than
zero.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01 Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows on the Effective Date, the Closing Date
and the date of each Credit Extension (other than in respect of an amendment, extension or renewal of a Letter of Credit without any increase in the stated amount of such Letter of Credit):
(a) Corporate Status. Each Loan Party is duly organized or formed, validly existing and in good standing under the laws of its jurisdiction of incorporation
or organization and possesses all powers (corporate or otherwise) and all other authorizations and licenses necessary to carry on its business, except where the failure to so possess would not reasonably be expected to have a Material Adverse
Effect.
(b) Corporate Authority; Non-Contravention. The execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party and the
consummation of the transactions contemplated thereby are within such Loan Party’s respective powers (corporate or otherwise), have been duly authorized by all necessary action (corporate or otherwise), and do not (i) contravene such Loan Party’s
Constitutive Documents, (ii) violate any Requirements of Law which would be reasonably likely to have a Material Adverse Effect, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any
material contract, loan agreement, indenture, mortgage, deed of trust, lease or other material instrument binding on or affecting any Loan Party or any of its properties, in each case, which would be reasonably likely to have a Material Adverse
Effect or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party (other than in favor of the Agent under the Loan Documents).
(c) Authorization. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body is
required for the due execution, delivery and performance by any Loan Party of the Loan Documents to which it is a party.
(d) Binding Effect. Each Loan Document is the legal, valid and binding obligation of the Loan Party thereto enforceable against such Loan Party in accordance
with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity (regardless of whether considered in a
proceeding in equity or at law).
(e) Litigation. There is no pending or, to Holdings’ knowledge, threatened action or proceeding affecting Holdings or any of its Restricted Subsidiaries
before any court, governmental agency or arbitrator, (i) which has a reasonable probability (taking into account the exhaustion of all appeals and the assertion of all defenses) of having a Material Adverse Effect or (ii) which purports to affect
the legality, validity or enforceability of any Loan Document.
(f) Financial Statements. The Consolidated balance sheets of the Holdings and its Subsidiaries as of December 31, 2019, and the related Consolidated
statements of income and retained earnings of Holdings and its Subsidiaries for the Fiscal Year then ended, certified by Grant Thornton LLP, copies of which have been furnished to each Lender Party, fairly present in all material respects the
Consolidated financial condition of the Lead Borrower and its Subsidiaries taken as a whole as at such date and the results of the operations of the Lead Borrower and its Subsidiaries for the period ended on such date, all in accordance with GAAP
consistently applied.
(g) Material Adverse Change. Since December 31, 2019, there has been no Material Adverse Change.
(h) Compliance With Law. Holdings and each of its Restricted Subsidiaries is in compliance with all Requirements of Law (including, without limitation, all
applicable Environmental Laws) applicable to their respective properties, assets and business other than (i) where the failure to so comply would (as to all such failures to comply in the aggregate) not reasonably be expected to have a Material
Adverse Effect or (ii) as described on Schedule 6.01(h).
(i) ERISA. Except as provided in Schedule 6.01(i):
(i) Neither a Loan Party nor any ERISA Affiliate is a party or subject to, or has any obligation to make payments, or incur any material
Withdrawal Liability, to, any Multiemployer Plan.
(ii) Schedule SB (Actuarial Information) to the most recently completed annual report (Form 5500 Series) for each Plan, copies of which have been
or will be filed with the Internal Revenue Service, is, except as would not reasonably be likely to result in a Material Adverse Effect, complete and accurate and fairly presents the funding status of such Plan, and since the date of such
Schedule SB there has been no material adverse change in such funding status which would reasonably be likely to result in a Material Adverse Effect.
(iii) No ERISA Event has occurred with respect to any Plan that, when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, would reasonably be likely to result in a Material Adverse Effect.
(iv) Neither a Loan Party nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA or has been determined to be in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305 or ERISA and no Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(j) Federal Reserve Regulations. No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawing under any Letter of Credit will be used to purchase any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.
(k) Investment Company. None of the Loan Parties is an “investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an
“investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(l) Disclosure. As of the Effective Date, no information, exhibit or report furnished by any Loan Party to the Agent or any Lender Party in connection with
the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein, taken as
whole, not materially misleading in light of the circumstances under which they were made; provided that all financial projections, if any, that have been or will be prepared by Holdings or the Lead Borrower and made available to the
Joint Lead Arrangers, the Agent, any Lender or any potential Lender, or any other party hereto, have been or will be prepared in good faith based upon reasonable assumptions, it being understood by the Lenders and all the other parties hereto
that such projections are subject to significant uncertainties and contingencies, many of which are beyond Holdings’ and the Lead Borrower’s control, and that no assurances can be given that the projections will be realized.
(m) OFAC. No Loan Party, nor, to the knowledge of the Lead Borrower, any director, officer, employee or Restricted Subsidiary of any Loan Party that will act
in any capacity in connection with or benefit in any way from the credit facilities established hereby, is an individual or entity that is, or is owned or controlled by an individual or entity that is, a Sanctioned Person or Sanctioned Entity.
Notwithstanding anything in this Agreement, nothing in this Agreement shall require the BorrowersGuarantors
or any Subsidiary of any BorrowerGuarantor or any director, officer, employee, or agent, Affiliate of any BorrowerGuarantor, that is registeredformed or incorporated under the laws of Canada or of a province or territory thereof to
commit an act or omission that contravenes the Foreign Extraterritorial Measures (United States) Order, 1992.
(n) Anti-Corruption Laws. Holdings and its Restricted Subsidiaries and, to the knowledge of the Lead Borrower, their respective directors and officers, are
in compliance with the U.S. Foreign Corrupt Practices Act of 1977, as amended, the Bribery Act 2010 of the United Kingdom, as amended, the Corruption of Foreign Public Officials Act (Canada), as amended, and French Law n°2016-1691 of December 9,
2016 (i.e., “Sapin II”), as amended, in each case in all material respects.
(o) [Reserved].
(p) EEA Financial Institution. Neither Holdings nor any other Loan Party is an Affected Financial Institution.
(q) Beneficial Ownership Certification. As of the Effective Date, the information included in each Beneficial Ownership Certification (if any) is true and
correct in all respects.
(r) Deposit Accounts. Annexed hereto as Schedule 6.01(r) is a list of all DDAs maintained by the Loan Parties as of the Effective Date, which Schedule
includes, with respect to each DDA (a) the name and address of the depository; (b) the account number(s) maintained with such depository; (c) a contact person at such depository, (d) whether such DDA is required to be a Blocked Account (and an
explanation of any exclusions); and (e) the identification of each Blocked Account Bank.
(s) Borrowing Base Certificate. The information set forth in the most recent Borrowing Base Certificate delivered pursuant to Section 7.04(i) is
true and correct in all material respects.
(t) Canadian Pension Plans. Except to the extent set forth on Schedule 6.01(t) or except as would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect (i) each Canadian Guarantor is in compliance with the requirements of the PBA with respect to each Canadian Pension Plan; (ii) none of the Loan Parties nor any of their Restricted
Subsidiaries maintains or contributes to, or has any liability under, any Canadian Defined Benefit Plan; (iii) no Canadian Guarantor has any withdrawal liability in connection with a Canadian registered pension plan that is a “multi-employer
plan” as that term is defined in subsection 8500(1) of the Income Tax Regulations (Canada); (iv) no Canadian Pension Event has occurred; and (v) no Lien has arisen, choate or inchoate, in respect of the
Loan Parties or their property in connection with any Canadian Pension Plan (save for contribution amounts not yet due).
(u) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (a) Holdings and each of its Subsidiaries has
filed all Tax returns required to have been filed by it and has timely paid all Taxes payable by it (whether or not shown on a Tax return and including in its capacity as withholding agent) that have become due, other than those being contested
in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP, (b) Holdings and each of its Subsidiaries has paid, or has provided adequate accruals or reserves in accordance with GAAP
for the payment of, all Taxes not yet due and payable and (c) there is no current or proposed Tax assessment, deficiency or other claim against Holdings or any of its Subsidiaries.
ARTICLE VII
COVENANTS OF THE LOAN PARTIES
Section 7.01 Affirmative Covenants. From and after the Closing Date until the Release Date, the Loan Parties shall, and shall cause each Restricted
Subsidiary to:
(a) Preservation of Existence, Etc. Preserve and maintain, and cause each of its Restricted Subsidiaries to preserve and maintain, its existence (corporate
or otherwise), rights (charter and statutory), permits (including all wood processing plant operating permits, water permits, timber supply and forestry management or utilization agreements, forestry management permits and any and all other
similar agreements or permits conferred upon or in respect of a Loan Party) and franchises except (i) if, in the reasonable business judgment of Holdings or such Subsidiary, as the case may be, it is in its best economic interest not to preserve
and maintain such rights, permits or franchises and such failure to preserve and maintain such rights, permits or franchises would not materially adversely affect the rights of the Lenders or the Issuing Banks hereunder or the ability of any Loan
Party to perform its obligations under the respective Loan Documents and (ii) in the case of a Restricted Subsidiary (other than any Borrower) of Holdings, where the failure to preserve and maintain its existence would not materially adversely
affect the rights of the Lenders or the Issuing Banks hereunder or the ability of any Loan Party to perform its obligations under the respective Loan Documents (it being understood that the foregoing shall not prohibit, or be violated as a result
of, any transactions by or involving any Loan Party or other Restricted Subsidiary otherwise permitted under Section 7.02); and maintain in effect and enforce policies and procedures designed to promote and achieve compliance by Holdings,
its Subsidiaries and their respective directors, officers, employees and agents with applicable Sanctions.
(b) Compliance with Laws, Etc. Comply, and cause each of its Restricted Subsidiaries to comply, with all applicable Laws (including, without limitation,
ERISA, the PBA and all Environmental Laws), rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect.
(c) Visitation Rights.
(i) Permit representatives and, subject to the provisions of Section 10.11 hereof, independent contractors of the Agent, to visit and
inspect any of its properties and to discuss its affairs, finances and accounts with its directors, officers, and accountants (at which representative of the Loan Parties have the right to be present), all at the expense of the Loan Parties and
at such reasonable times during normal business hours, upon reasonable advance notice to Lead Borrower, and permit any Lender (at the sole cost and expense of such Lender) to participate in any such visit, inspection or discussion; provided,
however, that when an Event of Default exists the Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense of the Loan Parties at any time during normal business hours and without advance
notice.
(ii) Upon the request of the Agent after reasonable prior notice and subject to the following sentence of this Section 7.01(c)(ii), permit
the Agent or professionals (including investment bankers, consultants, accountants, and lawyers) retained by the Agent to conduct commercial finance examinations of (i) Lead Borrower’s practices in the computation of the Borrowing Base and (ii)
the assets included in the Borrowing Base and related financial information such as, but not limited to, sales, gross margins, payables, accruals and reserves. The Agent (A) shall conduct one (1) commercial finance examination in any twelve
month period, at the Borrowers’ expense; provided that, in the event that (x) Availability is at any time less than the greater of (x) $30.026.25 million and (y) 17.5% of the Loan Cap, the Agent may conduct up to two (2) commercial finance examinations in any 12 month period, at the Borrowers’ expense, (B) may conduct one (1)
additional commercial finance examination at the expense of the Lenders in any 12-month period; provided, however, that notwithstanding anything in the foregoing clauses (A) or (B), in no event shall there be more than two (2)
commercial finance examinations in any 12 month period unless the provisions of clause (C) are then applicable, and (C) may conduct additional commercial finance examinations as frequently as determined by the Agent in its Permitted Discretion if
an Event of Default has occurred and is continuing, at the expense of the Borrowers.
(iii) Upon the request of the Agent after reasonable prior notice and subject to the following sentence of this Section 7.01(c)(iii),
permit the Agent or professionals (including appraisers) retained by the Agent to conduct appraisals of the Collateral, including, without limitation, the assets included in the Borrowing Base. The Agent (A) shall conduct one (1) inventory
appraisal in any twelve month period, at the Borrowers’ expense; provided that, in the event that Availability is at any time less than the greater of $30.026.25 million and 17.5% of the Loan Cap, the Agent may conduct up to two (2) inventory appraisals in any 12 month period, at the Borrowers’ expense, (B) may conduct one (1)
additional inventory appraisal at the expense of the Lenders in any 12-month period; provided, however, that notwithstanding anything in the foregoing clauses (A) or (B), in no event shall there be more than two (2) inventory
appraisals in any 12 month period unless the provisions of clause (C) are then applicable, and (C) the Agent may conduct additional inventory appraisals as frequently as determined by the Agent in its Permitted Discretion if an Event of Default
has occurred and is continuing, at the expense of the Borrowers.
(d) Maintenance of Books and Records. Keep, and cause each of its Restricted Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and business of Holdings and each of its Restricted Subsidiaries in accordance with sound business practice.
(e) Maintenance of Properties, Etc. Maintain and preserve, and cause each of its Restricted Subsidiaries to maintain and preserve, all of its properties
which are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted, consistent with sound business practice, except where the failure to so maintain and preserve would not reasonably be
expected to have a Material Adverse Effect.
(f) Maintenance of Insurance.
(i) Maintain, and cause each of its Restricted Subsidiaries to maintain, insurance (other than earthquake or terrorism insurance) in amounts,
from responsible and reputable insurance companies or associations, with limitations, of types and on terms as is customary for the industry; provided, that, Holdings and each of its Restricted Subsidiaries may self-insure risks and
liabilities in accordance with its practice as of the date hereof and may in addition self-insure risks and liabilities in amounts as are customarily self-insured by similarly situated Persons in the industry.
(ii) Within sixty (60) days (or such later date as Agent may agree in its reasonable discretion) of the Closing Date and at all times thereafter,
cause commercial general liability policies to be endorsed to name the Agent as an additional insured.
(iii) Within sixty (60) days (or such later date as Agent may agree in its reasonable discretion) of the Closing Date and at all times thereafter,
cause “all-risk” and business interruption policies to name the Agent as a lender loss payee and to be endorsed or amended to include (i) a provision that, from and after the Closing Date, after the occurrence and during the continuance of a Cash
Dominion Period, in the event of an insurable loss, the insurer shall pay all proceeds otherwise payable to the Loan Parties under the “all-risk” and business interruption policies directly to the Agent, (ii) no provision of coinsurance
applicable to the Loan Parties, the Secured Parties or any other Person and (iii) such other provisions as the Agent may reasonably require from time to time to protect the interests of the Secured Parties.
(iv) Within ninety (90) days (or such later date as Agent may agree in its reasonable discretion) of the Closing Date and at all times thereafter,
cause each such policy referred to in this Section 7.01(f) to also provide that it shall not be canceled, modified or not renewed (i) by reason of nonpayment of premium except upon not less than ten (10) days’ prior written notice thereof
by the insurer to the Agent (giving the Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason except upon not less than thirty (30) days’ prior written notice thereof by the insurer to the Agent.
(v) Deliver to the Agent a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Agent,
including an insurance binder or certificate of insurance) together with evidence reasonably satisfactory to the Agent of either payment of the premium therefor or that such premium is being financed reasonably promptly following each such
renewal, replacement or modification.
None of the Secured Parties, or their agents or employees shall be liable for any loss or damage insured by the insurance policies required to be maintained under this
Section 7.01(f). Each Loan Party shall look solely to its insurance companies or any other parties other than the Secured Parties for the recovery of such loss or damage and such insurance companies shall have no rights of subrogation
against any Secured Party or its agents or employees. If, however, the insurance policies do not provide waiver of subrogation rights against such parties, as required above, then the Loan Parties hereby agree, to the extent permitted by law,
to waive their right of recovery, if any, against the Secured Parties and their agents and employees. The designation of any form, type or amount of insurance coverage by any Secured Party under this Section 7.01(f) shall in no event
be deemed a representation, warranty or advice by such Secured Party that such insurance is adequate for the purposes of the business of the Loan Parties or the protection of their properties.
(g) Use of Proceeds. Use the proceeds of the Advances and issuances of Letters of Credit solely to repay amounts owing under the Existing Credit Agreement
and for working capital, capital expenditures and other general corporate purposes of Holdings and its Subsidiaries, including, without limitation, share repurchases.
(h) [Reserved].
(i) Cash Management.
(i) [Reserved].
(ii) Creation of Dominion Accounts and Maintenance of Blocked Accounts. (1) With respect to each U.S. Loan Party’s DDAs (other
than Excluded Accounts) and the U.S. Dominion Account (collectively, the “U.S. Blocked Accounts”), within ninety (90) days (or such later date as Agent may agree in its reasonable discretion) of the Closing Date or, for DDAs opened or
acquired following the Closing Date, within ninety (90) days (or such later date as the Agent may agree in its reasonable discretion), of the opening or establishment or acquisition of such DDA or the date any Person that owns such DDA becomes a
U.S. Loan Party hereunder, each U.S. Loan Party shall cause each bank or other depository institution at which any DDA is maintained (each, a “Blocked Account Bank”), to enter into a Blocked Account Agreement in form and substance
reasonably satisfactory to the Agent that provides for such bank or other depository institution to transfer to the U.S. Dominion Account (in the case of other DDAs), on each Business Day, all balances in each such Blocked Account maintained by
any U.S. Loan Party with such depository institution for application to the Obligations then outstanding following the receipt by such bank or other depository institution of a notice from the Agent (which notice Agent hereby agrees it shall be
permitted to give solely at a time when a Cash Dominion Period exists). Each U.S. Loan Party irrevocably appoints the Agent as such U.S. Loan Party’s attorney-in-fact to collect such balances during a Cash Dominion Period to the extent any such
delivery is not so made.
(2) With respect to each Canadian Guarantor’s DDAs (other than Excluded Accounts) and the Canadian Dominion Account (collectively, the “Canadian Blocked Accounts”, and together with the U.S. Blocked
Accounts, the “Blocked Accounts”), within ninety (90) days (or such later date as Agent may agree in its reasonable discretion) of the Closing Date or, for DDAs opened or acquired following the Closing Date, within ninety (90) days (or
such later date as the Agent may agree in its reasonable discretion), of the opening or establishment or acquisition of such DDA or the date any Person that owns such DDA becomes a Canadian Guarantor hereunder, each Canadian Guarantor shall cause
each Blocked Account Bank to enter into a Blocked Account Agreement in form and substance reasonably satisfactory to the Agent that provides for such bank or other depository institution to transfer to the Canadian Dominion Account (in the case
of other DDAs), on each Business Day, all balances in each such Canadian Blocked Account maintained by any Canadian Guarantor with such depository institution for application to the Obligations then outstanding following the receipt by such bank
or other depository institution of a notice from the Agent (which notice Agent hereby agrees it shall be permitted to give solely at a time when a Cash Dominion Period exists). Each Canadian Guarantor irrevocably appoints the Agent as such
Canadian Guarantor’s attorney-in-fact to collect such balances during a Cash Dominion Period to the extent any such delivery is not so made.
(iii) [Reserved].
(iv) Cash Receipts. From and after the earlier of (x) the date that the Loan Parties shall have satisfied the requirements of clause (ii)
above with respect to its DDAs existing at such time and (y) the 90th day after the Closing Date (or such later date as Agent may agree in its reasonable
discretion), the Loan Parties shall ACH or wire transfer no less frequently than once every Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all cash receipts of the company (including without
limitation all insurance proceeds, all Net Proceeds, all proceeds from sales of Inventory, and all other proceeds of ABL Priority Collateral). If any Loan Party receives cash or any check, draft or other item of payment payable to a Loan Party,
it shall hold the same in trust for the Agent and promptly deposit the same into any such Blocked Account or Dominion Account. Each Loan Party shall instruct any persons making payments on Accounts or other Collateral to make such payments into
Blocked Accounts.
(v) Dominion Account. Subject to Section 7.01(i)(ii), the Dominion Account shall at all times be under the sole dominion and
control of the Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Dominion Account, (ii) the funds on deposit in the Dominion Account shall at all times be collateral security for
all of the Obligations and (iii) the funds on deposit in the Dominion Account shall be applied pursuant to Section 8.02 on a daily basis after the occurrence and during the continuation of a Cash Dominion Period. In the event that,
notwithstanding the provisions of this Section 7.01(i)(v), any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the
Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Dominion Account or dealt with in such
other fashion as such Loan Party may be instructed by the Agent. Upon the request of the Agent after the occurrence and during the continuance of a Cash Dominion Period, the Loan Parties shall cause bank statements and/or other reports to be
delivered to the Agent not less often than weekly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(j) Information Regarding the Collateral. Furnish to the Agent at least five (5) days prior written notice of any change in: (i) any Loan Party’s name; or
(ii) any Loan Party’s organizational structure or jurisdiction of incorporation or formation, the location of its registered office or chief executive office, the province or territory in which any Canadian Collateral is located, or the province
or territory in which any U.S. Collateral is located in Canada. The Loan Parties agree not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the UCC and the PPSA, as applicable, or
otherwise that are required in order for the Agent to continue at all times following such change to have a valid, legal and perfected first priority Lien (subject to Permitted Liens) in all the Collateral for its own benefit and the benefit of
the other Secured Parties.
(k) Payment of Taxes. Holdings will pay and discharge or cause to be paid and discharged, and will cause each of its Subsidiaries to pay and discharge, all
Taxes imposed upon it (including in its capacity as a withholding agent) or upon its income or profits, or upon any properties belonging to it, prior to the date on which material penalties attach thereto, and all lawful material claims in
respect of any Taxes imposed, assessed or levied that, if unpaid, would reasonably be expected to become a material Lien (other than a Permitted Lien) upon any properties of Holdings or any of its Subsidiaries; provided that neither
Holdings nor any of its Subsidiaries shall be required to pay any such Tax that is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP or the failure to pay
would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(l) Further Assurances.
(i) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the
filing and recording of financing statements and other documents), that may be required under any applicable Law, or which the Agent may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve,
protect or perfect the Liens created or intended to be created by the Collateral Documents or the validity or priority of any such Lien, all at the expense of the Loan Parties. The Loan Parties also agree to provide to the Agent, from time to
time upon request, evidence reasonably satisfactory to the Agent as to the perfection and priority of the Liens created or intended to be created by the Collateral Documents.
(ii) Upon request, cause each Restricted Subsidiary which is not a Loan Party hereunder to deliver agreements reasonably satisfactory to the Agent
granting the Agent the right and license to use the assets and properties of such Subsidiary, including all Intellectual Property, equipment and fixtures owned by such Subsidiary, in connection with any liquidation of the Collateral.
(m) [Reserved].
(n) New Subsidiaries.
(i) Within thirty (30) Business Days of the formation of any Restricted Subsidiary, acquisition of a Restricted Subsidiary or at any time a
Subsidiary becomes a Restricted Subsidiary or ceases to be an Excluded Subsidiary, Lead Borrower shall notify Agent of such event and, promptly thereafter (and in any event within 30 days or such longer period as Agent may agree) (i) cause each
such new Restricted Subsidiary that is not an Excluded Subsidiary to deliver to Agent (A) a Joinder Agreement (which Joinder Agreement will specify whether such new Loan Party will be a “Designated Borrower” hereunder) and (B) a supplemental
Guaranty in the form attached hereto as Exhibit G, and to deliver to Agent such security documents, together with appropriate financing statements, reasonably requested by Agent, all in form and substance reasonably satisfactory to Agent, (ii)
with respect to all new Restricted Subsidiaries that are directly owned in whole or in part by a Loan Party, cause such Loan Party to provide to Agent a supplement to the U.S. Security Agreement or the applicable Canadian Security Agreement, as
applicable, providing for the pledge of the Capital Stock in such new Restricted Subsidiary owned by such Loan Party (or, in the case of a FSHCO or a Foreign Subsidiary (other than a Foreign Subsidiary of a Loan Party organized under the laws of
Canada (or any province or territory thereof)) that is a CFC, sixty-five percent (65%) of the total combined voting power of all classes of the voting Capital Stock of such Foreign Subsidiary or FSHCO and one-hundred percent (100%) of the
non-voting Capital Stock of such Foreign Subsidiary or FSHCO, in each case to the extent that such Capital Stock does not constitute Excluded Assets), as shall be requested by Agent together with appropriate certificates and powers or financing
statements under the UCC or the PPSA, as applicable, or other applicable personal property or moveable property registries or other documents necessary to perfect such pledge, in form and substance reasonably satisfactory to Agent, and (iii)
provide or cause to be provided to Agent all other customary and reasonable documentation requested thereby, including, to the extent requested by Agent, one or more opinions of counsel reasonably satisfactory to Agent, which in its opinion is
appropriate and customary with respect to such execution and delivery of the applicable documentation referred to above. Upon execution and delivery of the Joinder Agreement by each such new Restricted Subsidiary, such Restricted Subsidiary
shall become a Loan Party hereunder with the same force and effect as if originally named as a Loan Party herein. The execution and delivery of the Joinder Agreement shall not require the consent of any Loan Party or Lender hereunder. The
rights and obligations of each Loan Party hereunder shall remain in full force and effect notwithstanding the addition of any Loan Party hereunder.
(ii) Notwithstanding anything to the contrary contained herein, neither Holdings nor any Restricted Subsidiary of Holdings shall be required to
execute and deliver any joinder agreement, Guaranty, Collateral Document or any other document or grant a Lien in any Capital Stock or other property held by it if such action (A) for reasons of cost, legal limitations or other matters is
unreasonably burdensome in relation to the benefits to the Lenders of Holdings’ or such Restricted Subsidiary’s guaranty or security as reasonably determined by Lead Borrower and Agent or (B) is Excluded Assets or otherwise would not be required
with respect to the Collateral owned by a Loan Party pursuant to the terms of the Collateral Documents.
(o) Designation of Subsidiaries. An Officer of Lead Borrower may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any
Unrestricted Subsidiary as a Restricted Subsidiary in accordance with the definition of “Unrestricted Subsidiary”. With respect to the assets of Unrestricted Subsidiaries and Restricted Subsidiaries that are Loan Parties being included in the
calculation of the Borrowing Base, (a) if a Restricted Subsidiary is designated by Lead Borrower as an Unrestricted Subsidiary, the assets of such Subsidiary shall immediately be excluded from the Borrowing Base, and (b) if an Unrestricted
Subsidiary is designated by Lead Borrower as a Restricted Subsidiary after the Closing Date, then the assets of such Subsidiary shall not be included in the calculation of the Borrowing Base until (i) Agent consents (such consent not to be
unreasonably withheld) to such inclusion (except to the extent such Subsidiary’s assets were previously included in the Borrowing Base), (ii) Agent has received satisfactory appraisals and field exams with respect to the assets of such
Subsidiary, if applicable, as reasonably required by Agent and (iii) the Loan Parties have complied with Section 7.01(n) with respect to such Subsidiary. As of the Effective Date, there are no Unrestricted Subsidiaries.
(p) Post-Closing Matters. Execute and deliver the documents and complete the tasks set forth on Schedule 7.01(p), in each case within the time limits
specified on such schedule, as such time limits may be extended from time to time by Agent in its reasonable discretion.
Section 7.02 Negative Covenants. From and after the Closing Date until the Release Date, no Loan Party shall, nor shall it permit any Restricted Subsidiary
to, directly or indirectly:
(a) Indebtedness.
(i) (x) Holdings shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness (including
Acquired Indebtedness) or issue any shares of Disqualified Capital Stock; and (y) Holdings shall not permit any of the Restricted Subsidiaries (other than any Loan Party) to issue any shares of Preferred Stock.
(ii) The limitations set forth in Section 7.02(a)(i) shall not apply to:
(1) the Incurrence by Holdings or any Restricted Subsidiary of Indebtedness pursuant to any Loan Document;
(2) the Senior Debt (and guarantees thereof by any Loan Party);
(3) Indebtedness (or commitments to Incur Indebtedness), Preferred Stock and Disqualified Capital Stock of Holdings and the Restricted
Subsidiaries existing on the Effective Date (including the Canadian Financings (and guarantees thereof), but excluding Indebtedness described in clauses (1) and (2) of this Section 7.02(a)(ii)) and, if such Indebtedness is for borrowed
money and is in excess of $5 million, listed on Schedule 7.02(a) hereto;
(4) Indebtedness (including Capital Lease Obligations) Incurred by Holdings or any Restricted Subsidiary, Disqualified Capital Stock issued by
Holdings or any Restricted Subsidiary and Preferred Stock issued by any Restricted Subsidiary to finance (whether prior to or within 365 days after) the acquisition, lease, construction, repair, replacement or improvement of property (real or
personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) that, when aggregated with the principal amount or liquidation preference of all other Indebtedness, Disqualified Capital
Stock or Preferred Stock then outstanding and Incurred pursuant to this clause (4), together with any Refinancing Indebtedness in respect thereof Incurred pursuant to clause (15) below, does not exceed at any one time outstanding $75 million (plus,
in the case of any Refinancing Indebtedness, the Additional Refinancing Amount);
(5) Indebtedness Incurred by Holdings or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit and
bank guarantees issued in the ordinary course of business, including without limitation letters of credit in respect of workers’ compensation claims, health, disability or other benefits to employees or former employees or their families or
property, casualty or liability insurance or self-insurance, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, Environmental Law, or other Indebtedness with respect to reimbursement type obligations
regarding workers’ compensation claims;
(6) Indebtedness arising from agreements of Holdings or any Restricted Subsidiary providing for indemnification, adjustment of acquisition or
purchase price or similar obligations (including earn-outs), in each case, Incurred or assumed in connection with the Transactions, any Investments or any acquisition or disposition of any business, assets or a Subsidiary not prohibited by this
Agreement, other than guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition;
(7) Indebtedness of Holdings to a Restricted Subsidiary; provided that (except in respect of intercompany current liabilities incurred in
the ordinary course of business in connection with the cash management, tax and accounting operations of Holdings and its Subsidiaries) any such Indebtedness owed to a Restricted Subsidiary that is not a Loan Party is subordinated in right of
payment to the Obligations; provided, further, that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such Indebtedness (except to another Restricted Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien but not the transfer thereof upon foreclosure) shall be deemed, in each case, to be an
Incurrence of such Indebtedness not permitted by this clause (7);
(8) shares of Preferred Stock of a Restricted Subsidiary issued to Holdings or another Restricted Subsidiary; provided that any
subsequent issuance or transfer of any Capital Stock or any other event which results in any Restricted Subsidiary that holds such shares of Preferred Stock of another Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other
subsequent transfer of any such shares of Preferred Stock (except to Holdings or another Restricted Subsidiary) shall be deemed, in each case, to be an issuance of shares of Preferred Stock not permitted by this clause (8);
(9) Indebtedness of a Restricted Subsidiary to Holdings or another Restricted Subsidiary; provided that if a Loan Party incurs such
Indebtedness to a Restricted Subsidiary that is not a Loan Party (except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of Holdings
and its Subsidiaries), such Indebtedness is subordinated in right of payment to the Obligations of such Loan Party; provided, further, that any subsequent issuance or transfer of any
Capital Stock or any other event which results in any Restricted Subsidiary holding such Indebtedness ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to Holdings or another Restricted
Subsidiary or any pledge of such Indebtedness constituting a Permitted Lien but not the transfer thereof upon foreclosure) shall be deemed, in each case, to be an Incurrence of such Indebtedness not permitted by this clause (9);
(10) Hedging Obligations that are not incurred for speculative purposes but (A) for the purpose of fixing or hedging interest rate risk with
respect to any Indebtedness that is permitted by the terms of this Agreement to be outstanding; (B) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges; or (C) for the purpose of fixing or
hedging commodity price risk with respect to any commodity purchases or sales and, in each case, extensions or replacements thereof;
(11) obligations (including reimbursement obligations with respect to letters of credit, bank guarantees, warehouse receipts and similar
instruments) in respect of performance, bid, appeal and surety bonds, completion guarantees and similar obligations provided by Holdings or any Restricted Subsidiary in the ordinary course of business or consistent with past practice or industry
practice;
(12) Indebtedness or Disqualified Capital Stock of Holdings or Indebtedness, Disqualified Capital Stock or Preferred Stock of any Restricted
Subsidiary in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount or liquidation preference of all other Indebtedness, Disqualified Capital Stock and Preferred Stock then outstanding and
Incurred pursuant to this clause (12), together with any Refinancing Indebtedness in respect thereof incurred pursuant to clause (15) below, does not exceed at any one time outstanding the greater of $100 million and 4.0% of Total Assets as of
the date such Indebtedness is incurred (plus, in the case of any Refinancing Indebtedness, the Additional Refinancing Amount); it being understood that any Indebtedness Incurred pursuant to this clause (12) shall cease to be deemed
Incurred or outstanding for purposes of this clause (12) but shall be deemed Incurred for purposes of Section 7.02(a)(ii)(30) below from and after the first date on which Holdings or the Restricted Subsidiary, as the case may be, could
have Incurred such Indebtedness under Section 7.02(a)(ii)(30) below without reliance upon this clause (12);
(13) [Reserved];
(14) any guarantee by Holdings or any Restricted Subsidiary of Indebtedness or other obligations of Holdings or any Restricted Subsidiary so long
as the Incurrence of such Indebtedness Incurred by Holding or such Restricted Subsidiary is permitted under the terms of this Agreement; provided that (A) if such Indebtedness is by its express terms subordinated in right of payment to
the Obligations by such Restricted Subsidiary, as applicable, any such guarantee with respect to such Indebtedness shall be subordinated in right of payment to the Obligations, substantially to the same extent as such Indebtedness is subordinated
to the Obligations and (B) the aggregate principal amount of Indebtedness or other obligations of a Subsidiary that is not a Loan Party guaranteed by a Loan Party in reliance on this clause (14) shall not exceed the greater of $75 million and
3.0% of Total Assets, at any time outstanding;
(15) the Incurrence by Holdings or any of the Restricted Subsidiaries of Indebtedness or Disqualified Capital Stock, or by any Restricted
Subsidiary of Preferred Stock, that serves to refund, refinance or defease any Indebtedness Incurred or Disqualified Capital Stock or Preferred Stock issued as permitted under clauses (2), (3), (4) (12), (15), (16) and (30) of this Section 7.02(a)(ii)
up to the outstanding principal amount (or, if applicable, the liquidation preference, face amount, or the like) or, if greater, committed amount (only to the extent the committed amount could have been Incurred on the date of initial Incurrence
and was deemed Incurred at such time for the purposes of this Section 7.02(a)) of such Indebtedness or Disqualified Capital Stock or Preferred Stock, in each case at the time such Indebtedness was Incurred or Disqualified Capital Stock or
Preferred Stock was issued pursuant to clauses (2), (3), (4), (12), (15), (16) and (30) of this Section 7.02(a)(ii), or any Indebtedness, Disqualified Capital Stock or Preferred Stock Incurred to so refund or refinance such Indebtedness,
Disqualified Capital Stock or Preferred Stock, plus any additional Indebtedness, Disqualified Capital Stock or Preferred Stock Incurred to pay premiums (including tender premiums), accrued and unpaid interest, expenses, defeasance costs
and fees in connection therewith (subject to the following proviso, “Refinancing Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing
Indebtedness:
(A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is Incurred which is not less than the shorter of (x) the
remaining Weighted Average Life to Maturity of the Indebtedness, Disqualified Capital Stock or Preferred Stock being refunded, refinanced or defeased and (y) the Weighted Average Life to Maturity that would result if all payments of principal on
the Indebtedness, Disqualified Capital Stock and Preferred Stock being refunded or refinanced that were due on or after the date that is one year following the Termination Date were instead due on such date;
(B) to the extent such Refinancing Indebtedness refinances (a) Indebtedness junior in right of payment to the Obligations, such Refinancing
Indebtedness is junior in right of payment to the Obligations, (b) Disqualified Capital Stock or Preferred Stock, such Refinancing Indebtedness is Disqualified Capital Stock or Preferred Stock, (c) Indebtedness secured by a Lien on the Collateral
that is pari passu or junior to the Lien on the Collateral securing the Obligations, such Refinancing Indebtedness is secured by a Lien on the Collateral that is pari
passu with or junior to the Lien on the Collateral securing the Obligations to the same extent as such Indebtedness being Refinanced, and a Senior Representative of such Refinancing Indebtedness acting on behalf of the holders of such
Indebtedness shall have become party to or otherwise subject to the provisions of the ABL Intercreditor Agreement or an intercreditor agreement delivered pursuant to the definition of Junior Lien Priority Indebtedness, as applicable and (d)
obligations under the Senior Debt Documents, the Lien on the Collateral securing such Indebtedness shall have the priorities contemplated by the ABL Intercreditor Agreement (or priorities junior thereto), and a Senior Representative of such
Refinancing Indebtedness acting on behalf of the holders of such Indebtedness shall have become party to or otherwise subject to the provisions of the ABL Intercreditor Agreement or an intercreditor agreement delivered pursuant to the definition
of Junior Lien Priority Indebtedness, as applicable; and
(C) shall not include (x) Indebtedness of a Restricted Subsidiary that is not a Loan Party that refinances Indebtedness of Holdings or another
Loan Party, or (y) Indebtedness of Holdings or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary;
(16) Indebtedness, Disqualified Stock or Preferred Stock of (x) Holdings or any Restricted Subsidiary incurred to finance an acquisition or
(y) Persons that are acquired by Holdings or any Restricted Subsidiary or are merged, consolidated or amalgamated with or into Holdings or any Restricted Subsidiary in accordance with the terms of this Agreement (so long as such Indebtedness is
not incurred in contemplation of such acquisition, merger, consolidation or amalgamation); provided that after giving effect to such acquisition or merger, consolidation or amalgamation, either: (a) Holdings would be permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Incurrence Fixed Charge Coverage Ratio test set forth in Section 7.02(a)(ii)(30); or (b) the Incurrence Fixed Charge Coverage Ratio of Holdings would be no less than immediately
prior to such acquisition or merger, consolidation or amalgamation;
(17) [Reserved];
(18) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of its Incurrence;
(19) Indebtedness of Holdings or any Restricted Subsidiary supported by a Letter of Credit, in a principal amount not in excess of the stated
amount of such Letter of Credit;
(20) [Reserved];
(21) Indebtedness of Holdings or any Restricted Subsidiary consisting of (A) the financing of insurance premiums or (B) take-or-pay obligations
contained in supply arrangements, in each case, in the ordinary course of business;
(22) Indebtedness consisting of Indebtedness of Holdings or a Restricted Subsidiary to current or former officers, directors and employees thereof
or any direct or indirect parent thereof, their respective estates, spouses or former spouses, in each case to finance the purchase or redemption of Equity Interests of Holdings or any direct or indirect parent of Holdings to the extent described
in Section 7.02(b)(ii)(4);
(23) Indebtedness in respect of Obligations of Holding or any Restricted Subsidiary to pay the deferred purchase price of goods or services or
progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in
connection with the borrowing of money or any Hedging Obligations;
(24) [Reserved];
(25) [Reserved];
(26) [Reserved];
(27) [Reserved];
(28) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures of Holdings, the Lead Borrower or any
Restricted Subsidiary not in excess, at any one time outstanding, of $65,000,000;
(29) Indebtedness in respect of receivables financings solely involving accounts receivables or interests generated by Restricted Subsidiaries of
Holdings that are organized and operating under the laws of France, in which the aggregate amount of cash paid by the lenders or purchasers under all such receivables financings outstanding at any time in connection with their purchase of, or the
making of loans secured by, such accounts receivables or assets does not exceed $25,000,000 (or the Dollar Equivalent thereof); and
(30) other Indebtedness so long as (i) the Incurrence Fixed Charge Coverage Ratio of Holdings for the most recently ended Test Period immediately
preceding the date on which such additional Indebtedness is incurred would have been at least 2.00 to 1.00 determined on a pro forma basis and (ii) any Liens securing such Indebtedness are otherwise
permitted pursuant to clause (6)(B) of the definition of Permitted Liens; provided that such Indebtedness matures at least 91 days after the Termination Date.
(iii) For purposes of determining compliance with this Section 7.02(a) at the time of incurrence, Lead Borrower will be entitled to divide
and classify an item of Indebtedness in more than one of the categories of Indebtedness described (1) through (30) of Section 7.02(a)(ii) (or any portion thereof) without giving pro forma effect
to the Indebtedness Incurred pursuant to any other clause or paragraph of Section 7.02(a)(ii) (or any portion thereof) when calculating the amount of Indebtedness that may be Incurred pursuant to any such clause or paragraph (or any
portion thereof).
Accrual of interest, the accretion of accreted value, the payment of interest or dividends in the form of additional Indebtedness, Disqualified Capital Stock or
Preferred Stock, as applicable, amortization of original issue discount, the accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies will
not be deemed to be an Incurrence of Indebtedness, Disqualified Capital Stock or Preferred Stock for purposes of this Section 7.02(a). In addition, Guaranties of, or obligations in respect of letters of credit relating to, Indebtedness
which is otherwise included in the determination of a particular amount of Indebtedness shall not be included in the determination of such amount of Indebtedness; provided that the Incurrence of the Indebtedness represented by such
guarantee or letter of credit, as the case may be, was in compliance with this Section 7.02(a).
For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness, the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be
calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term debt, or first committed or first Incurred (whichever yields the lower Dollar equivalent), in the case of revolving
credit debt. However, if the Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and the refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of the refinancing, the Dollar-denominated restriction will be deemed not to have been exceeded so long as the principal amount of the refinancing Indebtedness does not exceed the principal amount of
the Indebtedness being refinanced.
Notwithstanding any other provision of this Section 7.02(a), the maximum amount of Indebtedness that Holdings and the Restricted Subsidiaries may Incur pursuant
to this Section 7.02(a) shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, solely as a result of fluctuations in the exchange rate of currencies
(b) Limitation on Restricted Payments.
(i) Holdings shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any distribution on account of any of Holdings’ or any of the Restricted Subsidiaries’ Equity Interests,
including any payment made in connection with any merger, amalgamation or consolidation involving Holdings (other than (A) dividends or distributions payable solely in Equity Interests (other than Disqualified Capital Stock) of Holdings; and (B)
dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary that is not a Wholly Owned Restricted
Subsidiary, Holdings or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities);
(2) purchase or otherwise acquire or retire for value any Equity Interests of Holdings or any direct or indirect parent of Holdings;
(3) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, in each case prior to any scheduled
repayment or scheduled maturity, any Junior Indebtedness of Holdings or any other Loan Party (other than the payment, redemption, repurchase, defeasance, acquisition or retirement of (A) Junior Indebtedness in anticipation of satisfying a sinking
fund obligation or principal installment or pursuant to the change of control and asset sale provisions in the Senior Debt Documents (or similar provisions in the agreements governing other Junior Indebtedness or in each case any Refinancing
Indebtedness thereof) and (B) Indebtedness permitted under clauses (7) and (9) of Section 7.02(a)(ii)); or
(4) make any Restricted Investment.
(all such payments and other actions set forth in subclauses (1) through (4) above being collectively referred to as “Restricted Payments”).
(ii) The provisions of Section 7.02(b)(i) shall not prohibit:
(1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration
thereof, if at the date of declaration or the giving of notice of such irrevocable redemption, as applicable, such payment would have complied with the provisions of this Agreement; provided that if such dividend, distribution or
redemption is being made pursuant to Section 7.02(b)(ii)(18), a Reserve shall be established by Agent in an amount equal to the Restricted Payment so declared;
(2) the redemption, repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital Stock”) or Junior Indebtedness
of Holdings, any direct or indirect parent of Holdings or any Loan Party in exchange for, or out of the proceeds of, the substantially concurrent sale of, Equity Interests of Holdings or any direct or indirect parent of Holdings or contributions
to the equity capital of Holdings (other than any Disqualified Capital Stock or any Equity Interests sold to a Subsidiary of Holdings) (collectively, including any such contributions, “Refunding Capital Stock”):
(A) the declaration and payment of dividends on the Retired Capital Stock out of the proceeds of the substantially concurrent sale (other than to
a Subsidiary of Holdings) of Refunding Capital Stock; and
(B) if immediately prior to the retirement of Retired Capital Stock, the declaration and payment of dividends thereon was permitted under
clause (6) of this Section 7.02(b)(ii) and not made pursuant to clause (2)(B), the declaration and payment of dividends on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which were used to redeem,
repurchase, retire or otherwise acquire any Equity Interests of any direct or indirect parent of Holdings) in an aggregate amount per year no greater than the aggregate amount of dividends per annum that were declarable and payable on such
Retired Capital Stock immediately prior to such retirement;
(3) the repayment, redemption, repurchase, defeasance, or other acquisition or retirement of Junior Indebtedness of Holdings or any Loan Party
made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of Holdings or a Loan Party, which is Incurred in accordance with Section 7.02(a) so long as:
(A) the principal amount (or accreted value, if applicable) of such new Indebtedness does not exceed the principal amount (or accreted value, if
applicable), plus any accrued and unpaid interest, of the Junior Indebtedness being so repaid, redeemed, repurchased, defeased, acquired or retired for value (plus the amount of any premium required to be paid under the terms of
the instrument governing the Junior Indebtedness being so repaid, redeemed, repurchased, acquired or retired, plus any tender premiums, plus any defeasance costs, fees and expenses incurred in connection therewith);
(B) such Indebtedness is subordinated as to right of payment and/or lien priority to the Obligations or the related Guarantee of such Loan Party,
as the case may be, at least to the same extent as such Junior Indebtedness so purchased, exchanged, repaid, redeemed, repurchased, defeased, acquired or retired for value (it being understood that if the Junior Indebtedness so repaid, purchased,
exchanged, redeemed, repurchased, defeased, acquired or retired for value is unsecured, such Indebtedness shall be unsecured);
(C) such Indebtedness has a final scheduled maturity date equal to or later than the earlier of (x) the final scheduled maturity date of the
Junior Indebtedness being so repaid, redeemed, repurchased, acquired or retired and (y) 91 days following the Termination Date; and
(D) such Indebtedness has a Weighted Average Life to Maturity at the time Incurred which is not less than the shorter of (x) the remaining
Weighted Average Life to Maturity of the Junior Indebtedness being so repaid, redeemed, repurchased, defeased, acquired or retired and (y) the Weighted Average Life to Maturity that would result if all payments of principal on the Junior
Indebtedness being repaid, redeemed, repurchased, defeased, acquired or retired that were due on or after the date that is one year following the Termination Date;
(4) so long as no Cash Dominion Period is continuing immediately before or after the making of such Restricted Payment, a Restricted Payment to
pay for the repurchase, retirement or other acquisition for value of Equity Interests of Holdings or any direct or indirect parent of Holdings held by any future, present or former employee, director, officer or consultant of Holdings or any
Subsidiary of Holdings or any direct or indirect parent of Holdings pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other agreement or arrangement; provided, however, that the aggregate Restricted Payments made under this clause (4) do not exceed $20 million in any calendar year, with unused amounts in any calendar year being permitted to be carried over
to the next succeeding calendar year; provided, further, however, that such amount in any calendar year may be increased by an amount not to
exceed:
(A) the cash proceeds received by Holdings or any of the Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified
Capital Stock) of Holdings or any direct or indirect parent of Holdings (to the extent contributed to Holdings) to employees, directors, officers or consultants of Holdings and the Restricted Subsidiaries or any direct or indirect parent of
Holdings that occurs after the Closing Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under Section 7.02(b)(ii)(8));
plus
(B) the cash proceeds of key man life insurance policies received by Holdings or any direct or indirect parent of Holdings (to the extent
contributed to Holdings) or the Restricted Subsidiaries after the Closing Date;
provided that cancellation of Indebtedness owing to Holdings or any Restricted Subsidiary from any present or former employees, directors, officers or
consultants of Holdings, any Restricted Subsidiary or the direct or indirect parents of Holdings in connection with a repurchase of Equity Interests of Holdings or any of its direct or indirect parents will not be deemed to constitute a
Restricted Payment for purposes of this covenant or any other provision of this Agreement;
(5) the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Capital Stock of Holdings or any
Restricted Subsidiary issued or incurred in accordance with Section 7.02(a);
(6) (a) the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than
Disqualified Capital Stock) issued after the Effective Date and (b) a Restricted Payment to any direct or indirect parent of Holdings, the proceeds of which will be used to fund the payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) of any direct or indirect parent of Holdings issued after the Effective Date; provided that the aggregate amount of dividends declared and paid pursuant to this clause (b) does
not exceed the net cash proceeds actually received by Holdings from any such sale of Designated Preferred Stock (other than Disqualified Stock) issued after the Effective Date;
(7) any Special Asset Sale Redemption (as defined in the offering memorandum for the 2026 Notes) and any repayment or redemption at a repayment
or redemption price (expressed as a percentage of principal amount of the Specified Debt) of 103.000% (or less) pursuant to the terms of any Specified Debt Agreement;
(8) so long as no Cash Dominion Period is continuing immediately before or after the making of such Restricted Payment, Restricted Payments that
are made with (or in an aggregate amount that does not exceed the aggregate amount of) Excluded Contributions;
(9) other Restricted Payments that, when taken together with all other Restricted Payments made pursuant to this clause (9) that are at that time
outstanding (and when combined with Investments made in reliance on clauses (10) and (21) of the definition of Permitted Investments), would not exceed $100 million (and $50 million in any Fiscal Year); provided, that no Cash Dominion
Period exists, in each case, after giving pro forma effect to such Restricted Payment;
(10) the repayment, redemption, repurchase, defeasance, or other acquisition or retirement of the Specified Third Party Debt made out of the
proceeds of the substantially concurrent repayment, redemption, repurchase, defeasance, or other acquisition or retirement of the Specified Intercompany Debt permitted hereunder;
(11) with respect to any taxable period for which Holdings and/or any of its Subsidiaries are members of a consolidated, combined, affiliated,
unitary or similar income tax group for U.S. federal and/or applicable state or local income tax purposes of which a direct or indirect parent of Holdings is the common parent (a “Tax Group”), distributions (“Tax Distributions”) to
any direct or indirect parent of Holdings to pay the portion of any such taxes of such Tax Group attributable to the income of Holding and/or its applicable Subsidiaries in an amount not to exceed the amount of such U.S. federal, state and/or
local income taxes (as applicable) that Holdings and/or its applicable Subsidiaries would have paid for such taxable period had Holdings and/or its applicable Subsidiaries been a stand-alone corporate taxpayer or a stand-alone corporate group
with respect to such taxes for all applicable taxable periods ending after the Closing Date; provided that distributions attributable to the income of any Unrestricted Subsidiary shall be permitted only to the extent that such
Unrestricted Subsidiary made distributions to Holdings or any Restricted Subsidiary for such purpose;
(12) any Restricted Payment, if applicable:
(A) in amounts required for any direct or indirect parent of Holdings to pay fees and expenses (including franchise or similar Taxes) required to
maintain its corporate existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of any direct or indirect parent of Holdings and general corporate operating and overhead
expenses of any direct or indirect parent of Holdings, in each case, to the extent such fees and expenses are attributable to the ownership or operation of Holdings, if applicable, and its Subsidiaries;
(B) in amounts required for any direct or indirect parent of Holdings, if applicable, to pay interest and/or principal on Indebtedness the
proceeds of which have been contributed to Holdings or any Restricted Subsidiary and that has been guaranteed by, or is otherwise considered Indebtedness of, Holdings Incurred in accordance with Section 7.02(a) and
(C) in amounts required for any direct or indirect parent of Holdings to pay fees and expenses related to any equity or debt offering of such
parent (whether or not successful);
(13) repurchases of Equity Interests that occur or are deemed to occur upon exercise of stock options or warrants if such Equity Interests
represent a portion of the exercise price of such options or warrants;
(14) subject to Holdings’ Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter for which financial statements have
been, or are required to have been, delivered being less than or equal to 5.00 to 1.00, the payment of dividends on Holdings’ common stock (or a Restricted Payment to any direct or indirect parent of Holdings to fund the payment by such direct or
indirect parent of Holdings of dividends on such entity’s common stock) of up to $25 million in any calendar year, with unused amounts in any calendar year beginning with the calendar year ending December 31, 2021 being permitted to be carried
over to succeeding calendar years;
(15) Restricted Payments by Holdings or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares upon
the exercise of options or warrants or upon the conversion or exchange of Capital Stock of any such Person;
(16) the repayment, redemption, repurchase, defeasance, or other acquisition or retirement of the 2024 Notes substantially concurrently with (or
prior to) the incurrence of the Specified Debt;
(17) payments or distributions to dissenting stockholders pursuant to applicable Law, pursuant to or in connection with a consolidation,
amalgamation, merger or transfer of all or substantially all of the assets of Holdings and the Restricted Subsidiaries, taken as a whole, that complies with Section 7.02(h); provided that if such consolidation, amalgamation,
merger or transfer of assets constitutes a Change of Control, all Obligations shall have been repaid in full (or the Event of Default specified in Section 8.01(g) shall have been waived); and
(18) any Loan Party or their Restricted Subsidiaries may make Restricted Payments so long as the Borrowers are in Pro Forma Compliance with the
Payment Conditions; and
(19) the repayment, redemption, repurchase, defeasance, or other acquisition or
retirement, in whole or in part, of the 2026 Notes;
provided, however, that at the time of, and after giving
effect to, any Restricted Payment permitted under clauses (8) and (9) of this Section 7.02(b)(ii), no Default shall have occurred and be continuing or would occur as a consequence thereof (provided, however, that Holdings may make regularly-scheduled dividend payments on its existing Preferred Stock in accordance with the terms thereof pursuant to Section 7.02(b)(ii)(6),
regardless of whether any Default has occurred or is continuing or would occur as a consequence thereof); provided, further, that
any Restricted Payments made with property other than cash shall be calculated using the Fair Market Value (as determined in good faith by Lead Borrower) of such property.
(iii) As of the Effective Date, all of the Subsidiaries of Holdings will be Restricted Subsidiaries. For purposes of designating any Restricted
Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by Holdings and the Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be Restricted Payments in an amount determined as
set forth in the last sentence of the definition of “Investments.” Such designation will only be permitted if a Restricted Payment or Permitted Investment in such amount would be permitted at such time and if such Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
(iv) Notwithstanding anything else set forth in this Section 7.02(b) or the definition of “Permitted Investments” to the contrary, no
Restricted Payment or Investment (other than an Investment in Holdings or another Loan Party) of material intellectual property owned by Holdings or another Loan Party shall be permitted under this Agreement.
(c) Limitations on Restrictions Affecting Subsidiaries. No Loan Party shall, or shall permit any of its Material Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist any consensual encumbrance or consensual restriction which prohibits or limits the ability of any Loan Party or Material Subsidiary to:
(i) pay dividends or make any other distributions to Holdings or any Restricted Subsidiary (1) on its Capital Stock; or (2) with respect to any
other interest or participation in, or measured by, its profits; or
(ii) make loans or advances to Holdings or any Restricted Subsidiary that is a direct or indirect parent of such Material Subsidiary;
except in each case for such encumbrances or restrictions existing under or by reason of:
(1) (A) contractual encumbrances or restrictions in effect on the Closing Date and (B) contractual encumbrances or restrictions pursuant to this
Agreement, the other Loan Documents, and, in each case, similar contractual encumbrances effected by any amendments, modifications, restatements, renewals, supplements, refundings, replacements or refinancings of such agreements or instruments;
(2) (A) the 2024 Notes Indenture, the 2024 Notes or the guarantees thereunder, (B) the 2026 Notes Indenture, the 2026 Notes or the guarantees
thereunder, (C) each Specified Debt Agreement, the Specified Debt or the guarantees thereunder, (D) the Canadian Financings or, (E) the Term Loan Credit Agreement or the guarantees thereof or (F) the ABL Intercreditor Agreement;
(3) applicable Law or any applicable rule, regulation or order;
(4) any agreement or other instrument of a Person acquired by Holdings or any Restricted Subsidiary which was in existence at the time of such
acquisition (but not created in contemplation thereof or to provide all or any portion of the funds or credit support utilized to consummate such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired;
(5) contracts or agreements for the sale of assets, including any restriction with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of the Capital Stock or assets of such Restricted Subsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant to Section 7.02(a) and Section 7.02(g) that limits the right
of the debtor to dispose of the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(9) purchase money obligations for property acquired and Capital Lease Obligations in the ordinary course of business;
(10) customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business;
(11) any encumbrance or restriction that restricts in a customary manner the subletting, assignment or transfer of any property or asset that is
subject to a lease, license or similar contract, or the assignment or transfer of any such lease, license (including without limitation, licenses of intellectual property) or other contracts;
(12) other Indebtedness, Disqualified Capital Stock or Preferred Stock (A) of Holdings or any Restricted Subsidiary that is a Loan Party or a
Foreign Subsidiary or (B) of any Restricted Subsidiary that is not a Loan Party or a Foreign Subsidiary so long as such encumbrances and restrictions contained in any agreement or instrument will not materially affect Holdings’ or any Loan
Party’s ability to make anticipated principal or interest payments on the Advances (as determined in good faith by Holdings); provided that in the case of each of clauses (A) and (B), such Indebtedness, Disqualified Capital Stock or
Preferred Stock is permitted to be Incurred subsequent to the Closing Date pursuant to Section 7.02(a);
(13) any Restricted Investment not prohibited by Section 7.02(b) and any Permitted Investment;
(14) the Fernandina Cogeneration Project; or
(15) any encumbrances or restrictions of the type referred to in Section 7.02(c)(i) or (ii) above imposed by any amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (14) above or this clause (15); provided that such
amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of Holdings, no more restrictive with respect to such dividend and other payment restrictions than
those contained in the dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
For purposes of determining compliance with this Section 7.02(c), (i) the priority of any Preferred Stock in receiving dividends or liquidating distributions
prior to dividends or liquidating distributions being paid on common stock shall not be deemed a restriction on the ability to make distributions on Capital Stock and (ii) the subordination of loans or advances made to Holdings or a Restricted
Subsidiary to other Indebtedness Incurred by Holdings or any such Restricted Subsidiary shall not be deemed a restriction on the ability to make loans or advances.
(d) Sale of Capital Stock and Assets. Except as set forth herein, no Loan Party shall, or shall permit any of its Restricted Subsidiaries to, sell, transfer,
convey, assign or otherwise Dispose of any of its properties or other assets, including the Capital Stock of any of its Subsidiaries (whether in a public or a private offering or otherwise), other than:
(i) the Disposition (including the abandonment of any Copyright, Patent, Trademark or other intellectual property or surrender or transfer for no
consideration) of obsolete, no longer used or useful, surplus, uneconomic, negligible or worn out property in the ordinary course of business or otherwise as may be required pursuant to the terms of any lease, sublease, license or sublicense;
(ii) the sale of inventory or other assets in the ordinary course of business;
(iii) Dispositions permitted by Sections 7.02(b), 7.02(g) and 7.02(h);
(iv) (1) the sale or issuance of any Subsidiary’s Capital Stock to Holdings or any Restricted Subsidiary and (2) the sale or issuance of Capital
Stock of Holdings to any employee (and, where required by law, to any officer or director) under any employment or compensation plans or to qualify such officers and directors;
(v) the Disposition of assets that do not constitute Borrowing Base assets, so long as (1) no Default or Event of Default then exists or would
result therefrom, (2) each such Disposition is in an arm’s-length transaction and Holdings or the applicable Subsidiary receives at least fair market value (as determined in good faith by Lead Borrower), and (3) the consideration received by
Holdings or such Subsidiary consists of at least 75% cash and is paid at the time of the closing of such Disposition; provided, however, that the following shall be deemed to be cash in respect of assets that are not ABL Priority
Collateral: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of Holdings or any of its Restricted Subsidiaries (other than Junior Indebtedness) and the valid release of Holdings or such Restricted
Subsidiary, by all applicable creditors in writing, from all liability on such Indebtedness or other liability in connection with such Disposition, (B) Indebtedness (other than Junior Indebtedness) of any Restricted Subsidiary that is no longer a
Restricted Subsidiary as a result of such Disposition, to the extent that Holdings and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with such Disposition and (C) any Designated
Non-cash Consideration received by Holdings or any Restricted Subsidiary in such Disposition having an aggregate Fair Market Value (as determined in good faith by Lead Borrower), taken together with all other Designated Non-cash Consideration
received pursuant to this Section 7.02(d)(v) that is at that time outstanding, not to exceed $50.0 million (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);
(vi) subject to compliance with Payment Conditions, the Disposition of assets that constitute Borrowing Base assets, so long as (1) each such
Disposition is in an arm’s-length transaction and Holdings or the applicable Subsidiary receives at least fair market value (as determined in good faith by Lead Borrower), and (2) the consideration received by Holdings and its Subsidiaries in
connection with such sale consists of at least 75% cash and is paid at the time of the closing of such Disposition;
(vii) Dispositions of cash and Cash Equivalents;
(viii) Dispositions of Accounts in connection with compromise, write down or collection thereof in the ordinary course of business and consistent
with past practice;
(ix) leases, subleases, licenses or sublicenses of property (i) which do not materially interfere with the business of Holdings and its Restricted
Subsidiaries or (ii) in connection with the Fernandina Cogeneration Project;
(x) Dispositions of Capital Stock to directors where required by applicable Law or to satisfy other requirements of applicable Law with respect to
the ownership of Capital Stock of Foreign Subsidiaries;
(xi) Dispositions of the Capital Stock of any Joint Venture to the extent required by the terms of customary buy/sell type arrangements entered
into in connection with the formation of such Joint Venture;
(xii) transfer or disposition of property subject to or as a result of a casualty or condemnation (or agreement in lieu of condemnation) (1) upon
receipt of net cash proceeds of such casualty or (2) to a Governmental Authority as a result of condemnation (or agreement in lieu of condemnation);
(xiii) the sale, transfer, lease, license or other disposition of Receivables Assets pursuant to a Permitted Supplier Receivables Sale Program;
(xiv) (1) any Loan Party may Dispose of its property to another Loan Party, (2) any Restricted Subsidiary that is not a Loan Party may Dispose of its
property to another Restricted Subsidiary and (3) asset Dispositions among Loan Parties and their Restricted Subsidiaries in the ordinary course of business;
(xv) Dispositions of any property to the extent that (1) (x) such property is exchanged for credit against the purchase price of similar replacement
property or (y) such Disposition represents an exchange of assets (including a combination of Cash Equivalents and assets) for assets related to a Similar Business of comparable or greater market value or usefulness to the business of Holdings
and its Restricted Subsidiaries as a whole, as determined in good faith by Lead Borrower or (z) such Disposition represents a swap of assets or lease, assignment or sublease of any real of personal property in exchange for services (including in
connection with any outsourcing arrangements) of comparable or greater value or usefulness to the business of Holdings and its Restricted Subsidiaries as a whole, as determined in good faith by Lead Borrower, or (2) the proceeds of such
Disposition are reasonably promptly applied to the purchase price of such replacement property;
(xvi) Dispositions of assets which constitute Investments permitted under Section 7.02(b);
(xvii) Dispositions of property (other than ABL Priority Collateral) in connection with (i) Sale/Leaseback Transactions for fair value (as determined
at the time of the consummation thereof in good faith by the applicable Loan Party or Restricted Subsidiary) so long as (x) 75% of the consideration received by such Loan Party or Restricted Subsidiary from such Sale/Leaseback Transaction is in
the form of cash and (ii) any Sale/Leaseback Transactions between Excluded Subsidiaries;
(xviii) any disposition by Holdings or a Subsidiary to charitable foundations, not‑for‑profits or other similar organizations with an aggregate fair
market value (as determined in good faith by Holdings) not to exceed $5,000,000 in any calendar year;
(xix) Dispositions of assets or issuances of Holdings or any Restricted Subsidiary or sale of Capital Stock of Holdings or any Restricted Subsidiary
which assets or Capital Stock so Disposed or issued, in any single transaction or related series of transactions, have a fair market value (as determined in good faith by Lead Borrower) of less than $10 million;
(xx) foreclosure or any similar action with respect to any property or other asset of Holdings or any of its Subsidiaries;
(xxi) any Disposition of Capital Stock in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(xxii) any Disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than
Holdings or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), in each case following
the Effective Date, made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(xxiii) Dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in
bankruptcy or similar proceedings and exclusive of factoring or similar arrangements;
(xxiv) any surrender, expiration or waiver of contract rights or the settlement, release, recovery on or surrender of contract, tort or other claims of
any kind;
(xxv) Dispositions of real property for the purpose of (x) resolving minor title disputes or defects, including encroachments and lot line adjustments
or, or (y) granting easements, rights of way or access and egress agreements, or (z) to any Governmental Authority in consideration of the grant, issuance, consent or approval of or to any development agreement, change of zoning or zoning
variance, permit or authorization in connection with the conduct of any Loan Party’s business, in each case which does not materially interfere with the business conducted on such real property;
(xxvi) so long as no Default or Event of Default would result therefrom, (i) dispositions of the brownfield properties (or similarly situated
properties) identified to the Agent on or prior to the Effective Date and (ii) dispositions of certain lumber mills located in the Province of Ontario, a list of which was delivered to the Agent on or prior to the Effective Date; and
(xxvii) any transfer of accounts receivable and related assets in connection with any factoring or similar arrangements entered into by Foreign
Subsidiaries (other than any Foreign Subsidiary organized in Canada or any province or territory thereof) on arms’ length terms;
provided, that any Disposition of Trademarks of the Loan Parties, which Trademarks are necessary or useful in connection with the exercise of any rights or
remedies with respect to the ABL Priority Collateral, pursuant to any of the foregoing clauses to any Person that is not a Loan Party shall be made expressly subject to a non-exclusive, irrevocable (until the Obligations have been paid in full)
royalty-free license in favor of the Agent to use such Trademarks in connection with the exercise of any such rights or remedies.
(e) Affiliate Transactions.
(i) Holdings shall not, and shall not permit any of the Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction or series of transactions, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of Holdings (each of the foregoing, an “Affiliate Transaction”) involving aggregate consideration in excess of $20 million, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to Holdings or the relevant Restricted Subsidiary than those
that could have been obtained in a comparable transaction by Holdings or such Restricted Subsidiary with an unrelated Person; and
(2) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $40
million, Holdings delivers to Agent a resolution adopted in good faith by the majority of the Board of Directors of Holdings, approving such Affiliate Transaction and an Officer’s Certificate certifying that such Affiliate Transaction complies
with clause (1) above.
(ii) The provisions of Section 7.02(e)(i) shall not apply to the following:
(1) transactions between or among Holdings and/or any of the Restricted Subsidiaries (or an entity that becomes a Restricted Subsidiary as a
result of such transaction) and any merger, consolidation or amalgamation of Holdings and any direct parent of Holdings; provided that such parent shall have no material liabilities and no material assets other than cash, Cash Equivalents
and the Capital Stock of Holdings and such merger, consolidation or amalgamation is otherwise in compliance with the terms of this Agreement and effected for a bona fide business purpose;
(2) Restricted Payments permitted by Section 7.02(b) and Permitted Investments;
(3) the payment of reasonable and customary fees and reimbursement of expenses paid to, and indemnity provided on behalf of, officers, directors,
employees or consultants of Holdings, any Restricted Subsidiary, or any direct or indirect parent of Holdings;
(4) transactions in which Holdings or any Restricted Subsidiary, as the case may be, delivers to Agent a letter from an Independent Financial
Advisor stating that such transaction is fair to Holdings or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (1) of this Section 7.02(e)(i);
(5) payments or loans (or cancellation of loans) to officers, directors, employees or consultants which are approved by a majority of the Board
of Directors of Holdings in good faith;
(6) any agreement as in effect as of the Effective Date or any amendment thereto (so long as any such agreement together with all amendments
thereto, taken as a whole, is not more disadvantageous to the Lenders in any material respect than the original agreement as in effect on the Effective Date) or any transaction contemplated thereby as determined in good faith by Holdings;
(7) the existence of, or the performance by Holdings or any Restricted Subsidiary of its obligations under the terms of any stockholders or
limited liability company agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Effective Date, any transaction, agreement or arrangement described in the offering
memorandum relating to each of the 2026 Notes and, in each case, any amendment thereto or similar transactions, agreements or arrangements which it may enter into thereafter; provided, however, that the existence of, or the
performance by Holdings or any Restricted Subsidiary of its obligations under, any future amendment to any such existing transaction, agreement or arrangement or under any similar transaction, agreement or arrangement entered into after the
Effective Date shall only be permitted by this clause (7) to the extent that the terms of any such existing transaction, agreement or arrangement together with all amendments thereto, taken as a whole, or new transaction, agreement or arrangement
are not otherwise more disadvantageous to the Lenders in any material respect than the original transaction, agreement or arrangement as in effect on the Effective Date;
(8) (A) transactions with customers, clients, suppliers or purchasers or sellers of goods or services, or transactions otherwise relating to the
purchase or sale of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement, which are fair to Holdings and the Restricted Subsidiaries in the reasonable determination of the
Board of Directors or the senior management of Holdings, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party or (B) transactions with joint ventures or Unrestricted Subsidiaries
entered into in the ordinary course of business and consistent with past practice or industry norm;
(9) the execution of the Transactions, and the payment of all fees, expenses, bonuses and awards related to the Transactions;
(10) the issuance of Equity Interests (other than Disqualified Capital Stock) of Holdings to any Person;
(11) the issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, management equity plans, stock option and stock ownership plans or similar employee benefit plans approved by the Board of Directors of Holdings or the Board of Directors of any direct or indirect parent of Holdings, or the Board of
Directors of a Restricted Subsidiary, as applicable, in good faith;
(12) the entering into of any tax sharing agreement or arrangement that complies with clauses (11) and (12) of Section 7.02(b)(ii) and the
performance under any such agreement or arrangement;
(13) any contribution to the capital of Holdings;
(14) transactions permitted by, and complying with, Section 7.02(h);
(15) transactions between Holdings or any Restricted Subsidiary and any Person, a director of which is also a director of Holdings or any direct or
indirect parent of Holdings; provided, however, that such director abstains from voting as a director of Holdings or such direct or indirect parent of Holdings, as the case may be, on any matter involving such other Person;
(16) pledges of Equity Interests of Unrestricted Subsidiaries;
(17) the formation and maintenance of any consolidated group or subgroup for tax, accounting or cash pooling or management purposes in the ordinary
course of business;
(18) any employment agreements entered into by Holdings or any Restricted Subsidiary and their respective officers and employees in the ordinary
course of business;
(19) transactions undertaken in good faith (as certified by a responsible financial or accounting officer of Holdings in an Officer’s Certificate)
for the purpose of improving the consolidated tax efficiency of Holdings and its Subsidiaries and not for the purpose of circumventing any covenant set forth in this Agreement; and
(20) non-exclusive licenses of Intellectual Property to or among Holdings and its Restricted Subsidiaries and Affiliates.
(f) Amendments of Certain Documents; Line of Business. No Loan Party shall amend its charter, bylaws or other organizational documents in any manner
materially adverse to the interest of the Lenders or such Loan Party’s duty or ability to repay the Obligations. No Loan Party shall engage in any business other than the businesses currently engaged in by it on the Effective Date or businesses
that are similar, reasonably related, incidental or ancillary thereto or is a reasonable extension, development or expansion thereof (a “Similar Business”).
(g) Liens. Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, Incur or suffer to exist any Lien
securing Indebtedness of Holdings or any Restricted Subsidiary, other than Permitted Liens, on any asset or property of Holdings or such Restricted Subsidiary.
With respect to any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness, such Lien shall also
be permitted to secure any Increased Amount of such Indebtedness. The “Increased Amount” of any Indebtedness shall mean any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of
accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness with the same terms or in the form of common stock of Holdings, the payment of dividends on Preferred Stock in the form
of additional shares of Preferred Stock of the same class, accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of
currencies or increases in the value of property securing Indebtedness described in clause (3) of the definition of “Indebtedness.”
(h) Mergers, Amalgamations, Fundamental Changes, Etc. No Loan Party shall, or shall permit any of its Restricted Subsidiaries to, directly or indirectly, by
operation of law or otherwise, 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:
(i) any Borrower may be merged, amalgamated or consolidated with or into another Borrower; provided that in all mergers, amalgamations or
consolidations involving Lead Borrower, Lead Borrower shall be the continuing or surviving entity;
(ii) any Restricted Subsidiary of Holdings may be merged, amalgamated or consolidated with or into a Borrower (provided that a Borrower (or
the Lead Borrower, if applicable) shall be the continuing or surviving entity) or with or into any Guarantor (provided that a Guarantor shall be the continuing or surviving entity);
(iii) any Subsidiary of Holdings that is not a Guarantor may be merged, amalgamated or consolidated with or into any other Subsidiary of Holdings
that is not a Guarantor; provided that if one Subsidiary to such merger, amalgamation or consolidation is a Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or surviving entity;
(iv) any Borrower may Dispose of any or all of its assets to another Borrower and any Subsidiary of Holdings may Dispose of any or all of its
assets to, or enter into any merger, amalgamation or consolidation with, (1) a Borrower or any Guarantor (upon voluntary liquidation or otherwise), (2) a Subsidiary that is not a Guarantor if the Subsidiary making the Disposition is not a
Guarantor; provided that any such Disposition by a Wholly Owned Subsidiary must be to a Wholly Owned Subsidiary, or (3) pursuant to a Disposition otherwise permitted by Section 7.02(d);
(v) any Investment expressly permitted by Section 7.02(b) may be structured as a merger, consolidation or amalgamation;
(vi) any Subsidiary may be dissolved or liquidated so long as any Dispositions of assets of such Person in connection with such liquidation or
dissolution would be to Persons entitled to receive such assets;
(vii) any Subsidiary may enter into any merger, amalgamation or consolidation in connection with a Disposition otherwise permitted by Section 7.02(d).
(i) Sanctions. Holdings shall not, and shall not permit any Restricted Subsidiary to, use the proceeds of any Credit Extension directly or, to the knowledge
of the Lead Borrower, indirectly, to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, except to the extent licensed or otherwise approved by OFAC or any other
applicable Sanctions authority. Notwithstanding anything in this Agreement, nothing in this Agreement shall require the BorrowersGuarantors or any Subsidiary of any BorrowerGuarantor
or any director, officer, employee, or agent, Affiliate
of any BorrowerGuarantor, that is registeredformed or incorporated under the laws of Canada or of a province or territory thereof to
commit an act or omission that contravenes the Foreign Extraterritorial Measures (United States) Order, 1992.
(j) Anti-Corruption Laws. Holdings shall not, and shall not permit any Restricted Subsidiary to, directly or, to the knowledge of the Lead Borrower,
indirectly, use the proceeds of any Credit Extension in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, the Bribery Act 2010 of the United Kingdom, as amended, the Corruption of Foreign Public Officials Act
(Canada), as amended, and French Law n°2016-1691 of December 9, 2016 (i.e., “Sapin II”), as amended, and (ii) maintain in effect policies and procedures designed to promote and achieve compliance by Holdings and its Subsidiaries with such laws.
(k) Deposit Accounts. Holdings shall not, and shall not permit any Restricted Subsidiary, to open new bank accounts that are collection accounts unless the
applicable Loan Parties shall have delivered to the Agent appropriate Blocked Account Agreements consistent with the provisions of Section 7.01(i) as and when required thereby. No Restricted Subsidiary shall maintain any bank accounts
other than the ones contemplated in this Agreement and Excluded Accounts.
Section 7.03 Financial Covenants. From and after the Closing Date until the Release Date, Holdings will, unless it has the written consent of the Majority
Lenders to do otherwise:
(a) [Reserved].
(b) Fixed Charge Coverage Ratio. If Availability shall be less than the greater of (x) $25.021.88 million and (y) 15.0% of the Loan Cap (such greater amount, the “Covenant Trigger” and the date on which the Covenant Trigger occurs, the “Covenant Trigger
Date”), until the date that Availability shall have been greater than or equal to the Covenant Trigger for 30 consecutive days thereafter (such period, a “Compliance Period”), maintain a Fixed Charge Coverage Ratio as of (x) the Covenant Trigger
Date and (y) last day of each subsequently completed Test Period ending during a Compliance Period, in each case determined on the basis of the most recently completed Test Period, of not less than 1.00 to 1.00.
Section 7.04 Reporting Requirements. Holdings will furnish to the Agent for distribution to the Lenders:
(a) As soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters, Consolidated balance sheets of the Holdings and
its Subsidiaries as of the end of such Fiscal Quarters and Consolidated statements of income and retained earnings of Holdings and its Subsidiaries for the period commencing at the end of the previous Fiscal Quarter and ending with the end of
such Fiscal Quarter, setting forth in each case in comparative form the figures for (i) the corresponding Fiscal Quarter of the previous fiscal year and (ii) the corresponding portion of the previous Fiscal Year, certified by the chief financial
officer or treasurer of Holdings and accompanied by a certificate of said officer stating that such have been prepared in accordance with GAAP.
(b) As soon as available and in any event within 75 days after the end of each Fiscal Year, a copy of the annual report for such year for Holdings and its
Subsidiaries, containing Consolidated financial statements of Holdings and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year and certified by Grant Thornton LLP or other
independent public accountants reasonably acceptable to the Majority Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit (other than solely with respect to, or resulting solely from, a final scheduled maturity date under any Indebtedness occurring within one year from the
time such opinion is delivered or any potential inability to satisfy a financial covenant thereunder).
(c) Upon the occurrence and during the continuance of a Cash Dominion Period, within 30 days after the end of each Fiscal Month of
each Fiscal Year of Holdings, Holdings will furnish to the Agent for distribution to the Lenders a Consolidated balance sheet of Holdings and its Subsidiaries as at the end of such Fiscal Month, and the related Consolidated statements of income
and retained earnings for such Fiscal Month, and for the portion of Holdings’ Fiscal Year then ended, certified by the chief financial officer or treasurer of Holdings as fairly presenting, in all material respects, the financial
information required thereby for Holdings and its Subsidiaries on a consolidated basis, consistent with past practice;
(d) Together with the financial statements required by Sections 7.04(a), (b) and (c), a compliance certificate signed by the chief financial
officer, treasurer or assistant treasurer of Holdings attaching a calculation of the Fixed Charge Coverage Ratio and stating (i) whether or not he or she has knowledge of the occurrence of any Event of Default or Default and, if so, stating in
reasonable detail the facts with respect thereto and (ii) whether or not Holdings is in compliance with the requirements set forth in Section 7.03 (if applicable) and showing the computations used in determining such compliance or
non-compliance.
(e) As soon as possible and in any event within five Business Days after a Responsible Officer becomes aware of each Event of Default and Default, a statement of a
Responsible Officer of the Lead Borrower setting forth details of such Event of Default or Default and the action which Lead Borrower has taken and proposes to take with respect thereto.
(f) Promptly after the sending or filing thereof, copies of all reports which Holdings sends to any of its security holders, and copies of all reports and
registration statements which Holdings or any Subsidiary files with the SEC or any national securities exchange.
(g) Promptly following any request therefor, information and documentation reasonably requested by the Agent or any Lender
for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Beneficial Ownership
Regulation or other applicable anti-money laundering laws.
(h) Such other information respecting the condition or operations, financial or otherwise, of Holdings or any of its Subsidiaries as any Lender Party, through the
Agent, may from time to time reasonably request.
(i) On the 20th day of each Fiscal Month (or, if such day is not a Business Day, on the next succeeding Business Day and, in the case of the Fiscal Month ending
December 31, 2020, on January 20, 2021), commencing with the Fiscal Month ending December 31, 2020, a Borrowing Base Certificate showing the Borrowing Base as of the close of business as of the last day of the immediately preceding Fiscal Month (provided
that the Appraised Value percentage applied to the Eligible Inventory and Eligible FOB Inventory set forth in each Borrowing Base Certificate shall be the percentage set forth in the most recent appraisal obtained by the Agent pursuant to Section 7.01(c)
for the applicable monthly period in which such Borrowing Base Certificate is delivered), each Borrowing Base Certificate to be certified as complete and correct in all material respects by a Responsible Officer of Lead Borrower; provided
that (x) at any time that a Weekly Borrowing Base Delivery Event has occurred and is continuing (or if Lead Borrower elects, so long as the frequency of delivery is maintained by Lead Borrower for at least 90 days), such Borrowing Base
Certificate shall be delivered on Wednesday of each week (or, if Wednesday is not a Business Day, on the next succeeding Business Day), as of the close of business on the immediately preceding Saturday
and, (y) Lead Borrower shall be required to compute the Borrowing Base and deliver an updated Borrowing Base Certificate in connection with
any Disposition or Investment of ABL Priority Collateral outside of the ordinary course of business that results in assets constituting greater than 5% of the Borrowing Base being removed from the Borrowing Base; and (z) Lead Borrower shall be required to compute the Borrowing Base and deliver an updated Borrowing Base Certificate promptly upon any
Disposition of Accounts pursuant to any Permitted Supplier Receivables Sale Programs (solely to the extent that such Disposed Accounts (A) were previously included in the calculation of the Borrowing Base and (B) amount to greater than 7.5%
of the Borrowing Base in aggregate in the calendar month of such Disposition);
(j) Within 120 days after the end of each Fiscal Year of Holdings, forecasts prepared by management of Holdings, in form
reasonably satisfactory to the Agent, of Consolidated balance sheets and statements of income or operations and cash flows of Holdings and its Subsidiaries, and an Availability analysis, in each case on a monthly basis for the immediately
following Fiscal Year (including the Fiscal Year in which the Termination Date occurs), and as soon as available, any significant revisions to such forecast with respect to such Fiscal Year; and
(k) Simultaneously with the delivery of each set of consolidated financial statements referred to in clauses (a), (b) and (c) above, related consolidating financial
statements reflecting adjustments necessary to (i) eliminate the accounts of Unrestricted Subsidiaries (if any) and (ii) eliminate the accounts of Foreign Subsidiaries (other than Canadian Subsidiaries), if any, from such consolidated financial statements.
Documents required to be delivered pursuant to Section 7.04(a), (b) or (c) or Section 7.04(f) (to the extent any such documents are
included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on Holdings’
website on the Internet at the website address “https://rayonieram.com” (or any successor page notified to the Lenders); or (ii) on which such documents are posted on Holdings’ behalf on an Internet or intranet website, if any, to which each
Lender and the Agent have access (whether a commercial, third-party website or whether sponsored by the Agent). The Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and
in any event shall have no responsibility to monitor compliance by Holdings with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Holdings hereby acknowledges that (a) the Agent will make available to the Lender Parties materials and/or information provided by or on behalf of Holdings hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lender Parties (each, a “Public Lender”)
may have personnel who do not wish to receive material non-public information with respect to Holdings or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. Holdings hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such
Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Holdings shall be
deemed to have authorized the Agent and the Lender Parties to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to Holdings or its securities for
purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in Section 10.11); (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as
being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, Holdings shall be under no obligation to mark any Borrower Materials “PUBLIC”.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 Events of Default. If any of the following events (“Events of Default”) shall occur and be
continuing on or after the Closing Date:
(a) Non-Payment. Any Loan Party shall fail to pay any principal of any Advance or any reimbursement obligation under any Letter of Credit when the same
becomes due and payable, and in the currency required hereunder; or shall fail to pay any interest on any Advance, fees or any other amounts hereunder or under any other Loan Document within five Business Days after the same become due and
payable by it; or
(b) Representations and Warranties. Any representation or warranty made by any Loan Party in any Loan Document (whether made on behalf of itself or
otherwise) or by any Loan Party (or any of its officers) in connection with any Loan Document (including, without limitation, any representation made in any Borrowing Base Certificate) shall prove to have been incorrect in any material respect
when made; or
(c) Specific Covenants and Other Defaults. (i) Any Loan Party shall fail to perform or observe any covenant contained in Section 7.01(a) (as to the
existence of each Borrower), 7.01(g), 7.01(i), 7.01(p), 7.02, 7.03 or 7.04(e); (ii) any Loan Party shall fail to perform or observe any covenant contained in Section 7.04(i) if the failure
to perform or observe such covenant shall continue unremedied for five (5) Business Days (or, in the case of Section 7.04(i), two (2) Business Days if Borrowing Base Certificates are being delivered weekly); and (iii) any Loan Party shall
fail to perform or observe such other term, covenant or agreement contained in any Loan Document on its part to be performed or observed if the failure to perform or observe such other term, covenant or agreement shall remain unremedied for 30
days after written notice thereof shall have been given to such Loan Party by any Lender Party; or
(d) Cross-Default. A default or breach shall occur under any other agreement, document or instrument to which any Loan Party or any Restricted Subsidiary is
a party that is not cured within any applicable grace period therefor, and such default or breach (i) involves the failure to make any payment when due in respect of any Indebtedness (other than the Obligations) of any Loan Party or any
Restricted Subsidiary in an aggregate amount of not less than $75,000,000, or (ii) causes or permits any holder of such Indebtedness or a trustee, with the giving of notice, if required, to cause Indebtedness or a portion thereof in excess of
$75,000,000 in the aggregate outstanding principal amount to become due prior to its stated maturity or prior to its regularly scheduled dates of payment, or cash collateral in respect thereof (in excess of $75,000,000) is demanded as a result of
any such breach or default, in each case, regardless of whether such right is exercised, by such holder or trustee; provided that this clause (d)(ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness; or
(e) Insolvency Proceeding, Etc. Any Loan Party shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Loan Party seeking to adjudicate it a bankrupt or insolvent, or seeking receivership, interim receivership,
liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Law, or seeking the entry of an order for relief or the appointment of a receiver, interim receiver,
monitor, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, interim receiver, monitor, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall occur; or any Loan Party shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
(f) Judgments. One or more judgments or orders for the payment of money in excess of $75,000,000 in the aggregate shall be rendered against any Loan Party
and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of forty-five (45) consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not give rise to an Event of Default under this Section 8.01(f) if and so long as (A) the amount of
such judgment or order which remains unsatisfied is covered by a valid and binding policy of insurance between the respective Loan Party and the insurer covering full payment of such unsatisfied amount and (B) such insurer has been notified, and
has not disputed the claim made for payment, of the amount of such judgment or order; or
(g) Change of Control. A Change of Control shall have occurred; or
(h) ERISA and Canadian Pension Plans. Any of the following events or conditions shall have occurred and such event or condition, when aggregated with any and
all other such events or conditions set forth in this subsection (h), has resulted or is reasonably expected to result in liabilities of the Loan Parties and/or the ERISA Affiliates in an aggregate amount that would have a Material Adverse
Effect:
(i) any ERISA Event shall have occurred with respect to a Plan; or
(ii) any of the Loan Parties or any of the ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan; or
(iii) any of the Loan Parties or any of the ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization, is insolvent or is being terminated, within the meaning of Title IV of ERISA, or has been determined to be in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305
of ERISA and, as a result of such reorganization, insolvency, termination or determination, the aggregate annual contributions of the Loan Parties and the ERISA Affiliates to all of the Multiemployer Plans that are in reorganization, are
insolvent, being terminated or in endangered or critical status at such time have been or will be increased over the amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer Plans immediately preceding the plan
year in which such reorganization, insolvency or termination occurs; or
(iv) any failure to satisfy the applicable minimum funding standards under Section 412(a) of the Code or Section 302(a) of ERISA, whether or not
waived, shall exist with respect to one or more of the Plans; or
(v) any Lien shall exist on the property and assets of any of the Loan Parties or any of the ERISA Affiliates in favor of the PBGC;
(vi) a Canadian Pension Event shall have occurred; or
(vii) any Lien arises (save for contribution amounts not yet due) in connection with any Canadian Pension Plans.
(i) Invalidity of Loan Documents. (i) Any provision of any Loan Document, at any time after its execution and delivery and for any reason (other than as a
result of the gross negligence or willful misconduct of the Agent or payment in full of the Obligations), ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any provision of any Loan
Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document or seeks to avoid, limit or otherwise
adversely affect any Lien purported to be created under any Security Document; or (ii) any Lien purported to be created under any Collateral Document shall cease to be, or shall be asserted by any Loan Party or any other Person not to be, a valid
and perfected Lien on a material portion of the Collateral, with the priority required by the applicable Collateral Document (other than as a result of the gross negligence or willful misconduct of the Agent);
then, and in any such event, the Agent shall at the request, or may with the consent, of the Majority Lenders, by notice to the Lead Borrower, (A) declare the
obligation of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate, (B) declare the Advances, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by each Loan Party,
(C) declare the obligation of the Issuing Banks to issue further Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and/or (D) demand from time to time that the Lead Borrower, and if such demand is made the Lead
Borrower shall, pay or cause to be paid to the Agent for the benefit of the Issuing Banks, an amount in immediately available funds equal to the then outstanding L/C Obligations which shall be held by the Agent (or the applicable Issuing Bank)
as Cash Collateral and applied to the reduction of such L/C Obligations as drawings are made on outstanding Letters of Credit; provided, however, that in the event of an actual or deemed entry of an order for relief with respect
to any Loan Party under the Federal Bankruptcy Code, the obligation of each Lender to make Advances shall automatically be terminated, the Cash Collateral obligations under subsection (D) above shall be automatically due and payable without
demand, the then outstanding Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by each
Loan Party and the obligation of the Issuing Banks to Issue Letters of Credit shall automatically be terminated.
Section 8.02 Application of Funds. After the
exercise of remedies provided for in Section 8.01 (or after the Advances have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.01), any amounts received on account of the Obligations shall be applied by the Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of
counsel to the Agent and amounts payable under Article II) payable to the Agent;
Second, to payment of that portion of the Obligations constituting indemnities, expenses, and other amounts (other than (i) principal, (ii) interest and (iii)
fees and obligations under Bank Product Agreements, Secured Hedge Agreements and Secured Supply Chain Financings) payable to the Lenders and Issuing Banks (including amounts payable under Article II), ratably among them in proportion to
the amounts described in this clause Second payable to them;
Third, to the extent not previously reimbursed by the Lenders, to payment to the Agent of that portion of the Obligations constituting principal and accrued and
unpaid interest on any Permitted Overadvances;
Fourth, to the extent that Swing Line Loans have not been refinanced by a Revolving Credit Advance, payment to the Swing Line Lender of that portion of the
Obligations constituting accrued and unpaid interest on the Swing Line Loans;
Fifth, to the extent that Swing Line Loans have not been refinanced by a Revolving Credit Advance, to payment to the Swing Line Lender of that portion of the
Obligations constituting unpaid principal of the Swing Line Loans;
Sixth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Revolving Credit Advances and fees (including Letter of
Credit Fees), ratably among the Lenders and the Issuing Banks in proportion to the respective amounts described in this clause Sixth payable to them;
Seventh, to payment of that portion of the Obligations constituting unpaid principal of the Revolving Credit Advances, ratably among the Lenders in proportion to
the respective amounts described in this clause Seventh held by them;
Eighth, to the Agent for the account of the Issuing Banks, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit;
Ninth, to payment of that portion of the Obligations arising from Bank Products and Secured Hedging Obligations (other than Secured Hedging Obligations in
respect of the Existing Hedge Agreements), ratably among the Secured Parties in proportion to the respective amounts described in this clause Ninth held by them;
Tenth, to payment of that portion of the Obligations arising from Secured Supply Chain Financings and Secured Hedging Obligations in respect of the Existing
Hedge Agreements, ratably among the Secured Parties in proportion to the respective amounts described in this clause Tenth held by them;
Eleventh, to payment of that portion of the Obligations constituting unpaid accrued and unpaid interest on the FILO Term Loans, if any, ratably among the Lenders
in proportion to the respective amounts described in this clause Eleventh payable to them;
Twelfth, to payment of that portion of the Obligations constituting unpaid principal of the FILO Term Loans, if any, ratably among the Lenders in proportion to
the respective amounts described in this clause Twelfth payable to them;
Thirteenth, to payment of all other Obligations, ratably among the Secured Parties in proportion to the respective amounts described in this clause Thirteen
held by them;
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Loan Parties or as otherwise required by Law.
Subject to Section 2.13, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Eighth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if
any, in the order set forth above.
ARTICLE IX
THE AGENT
Section 9.01 Appointment and Authority. Each of the Lenders and Issuing Banks hereby irrevocably appoints
Bank of America to act on its behalf as the Agent hereunder and under the other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this Article (other than Section 9.06, Section 9.11 and Section 9.12) are solely for the benefit of the Agent, the Lenders
and the Issuing Banks, and neither the Lead Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.
Each Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit Issued by it and the documents associated therewith until such time and
except for so long as the Agent may elect to act for each Issuing Bank with respect thereto; provided, however, that such Issuing Bank shall have all of the benefits and immunities (i) provided to the Agent in this Article IX
with respect to any acts taken or omissions suffered by such Issuing Bank in connection with Letters of Credit Issued by it or proposed to be Issued by it and the applications and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term “Agent,” as used in this Article IX, included such Issuing Bank with respect to such acts or omissions, and (ii) as additionally provided in this Agreement with respect to such Issuing Bank.
For the purposes of holding any hypothec granted pursuant to the laws of the Province of Quebec, each of the Secured Parties hereby irrevocably appoints and authorizes
the Agent and, to the extent necessary, ratifies the appointment and authorization of the Agent, to act as the hypothecary representative of the Secured Parties as contemplated under Article 2692 of the Civil Code of Quebec, and to enter into,
to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Agent under any related deed of hypothec. The Agent shall have the sole and exclusive right and
authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Agent in its capacity as hypothecary representative pursuant to any such deed of hypothec and applicable Law.
Any person who becomes a Secured Party in accordance with the terms of this Agreement, shall be deemed to have consented to and confirmed the Agent as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid
and to have ratified as of the date it becomes a Secured Party, all actions taken by the Agent in such capacity. The substitution of the Agent pursuant to the provisions of this Article IX shall also constitute the substitution of the
Agent as hypothecary representative as aforesaid without any further act or formality being required to appoint such successor Agent as the successor hypothecary representative for the purposes of any then existing deeds of hypothec. The
execution by Bank of America, as the Agent in the capacity as hypothecary representative for the Secured Parties, prior to this Agreement of any deeds of hypothec is hereby ratified and confirmed.
Section 9.02 Rights as a Lender. The Person serving as the 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 Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Lead Borrower or any Subsidiary
or other Affiliate thereof as if such Person were not the Agent hereunder and without any duty to account therefor to the Lenders.
Section 9.03 Exculpatory Provisions. The Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Agent is required to exercise as directed in writing by the Majority Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan
Documents); provided that the Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Document or applicable Law; and
(c) 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 credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their Affiliates, that is communicated to, obtained or in the
possession of, the Agent, any Joint Lead Arranger or any of their Related Parties in any capacity, except for notices, reports and other documents expressly required to be furnished to the Lenders by the Agent herein.
The Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Majority Lenders (or such other number or percentage
of the Lenders as shall be necessary, or as the Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.01) or (ii) in the absence of its own gross negligence or willful
misconduct. The Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Agent by the Lead Borrower, a Lender or an Issuing Bank.
The 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 this
Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection 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, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument
or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article V or
elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent.
Section 9.04 Reliance by Agent. The Agent shall be entitled to rely upon, 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 Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of an Advance, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Agent may presume that such condition is
satisfactory to such Lender Party unless the Agent shall have received notice to the contrary from such Lender Party prior to the making of such Advance or the issuance of such Letter of Credit. The Agent may consult with legal counsel (who may
be counsel for the Lead 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 9.05 Delegation of Duties. The Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan
Document by or through any one or more sub‑agents appointed by the Agent. The 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 Agent and any such sub‑agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Agent.
Section 9.06 Resignation of Agent. (a) The Agent may at any time give notice of its resignation to the
Lenders, the Issuing Banks and the Lead Borrower. Upon receipt of any such notice of resignation, the Majority Lenders shall have the right, in consultation with the Lead Borrower, 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 have been so appointed by the Majority Lenders and shall have accepted such appointment within 30 days after the retiring
Agent gives notice of its resignation (or such earlier day as shall be agreed by the Majority Lenders) (the “Resignation Effective Date”), then the retiring Agent may (but shall not be obligated to) on behalf of the Lenders and the
Issuing Banks, appoint a successor Agent meeting the qualifications set forth above; provided that in no event shall any such successor 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 Effective Date.
(b) If the Person serving as Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Majority Lenders may, to the extent permitted by
applicable Law, by notice in writing to the Lead Borrower and such Person remove such Person as Agent and, in consultation with the Lead Borrower, appoint a successor. If no such successor shall have been so appointed by the Majority Lenders and
shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Majority Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the
Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Agent shall be discharged from its
duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Agent on behalf of the Lenders or the Issuing Banks under any of the Loan Documents, the retiring or removed Agent
shall continue to hold such collateral security until such time as a successor Agent is appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Agent, all payments, communications and
determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender and each Issuing Bank directly, until such time, if any, as the Majority Lenders appoint a successor Agent as provided for above. Upon the
acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Agent (other than as provided in Section 4.02(g)
and other than any rights to indemnity payments or other amounts owed to the retiring or removed Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Agent shall be discharged from
all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Lead Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Lead Borrower and such successor. After the retiring or removed Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring or removed Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while the retiring or removed Agent was
acting as Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including in respect of any actions taken in connection with transferring the
agency to any successor Agent.
(d) Any resignation by Bank of America as Agent pursuant to this Section shall also constitute its resignation as Issuing Bank and Swing Line Lender. If Bank of
America resigns as an Issuing Bank, it shall retain all the rights, powers, privileges and duties of an Issuing Bank hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all
L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(c). If Bank of America resigns as Swing Line Lender, it
shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Advances made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate
Loans or fund risk participations in outstanding Swing Line Advances pursuant to Section 2.03(c). Upon the acceptance of a successor’s appointment as Agent hereunder, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Issuing Bank and Swing Line Lender, (b) the retiring Issuing Bank and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other
Loan Documents, and (c) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit issued by Bank of America, if any, outstanding at the time of such succession or make other arrangements satisfactory to
the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit.
Section 9.07 Non-Reliance on Agent and Other Lenders. Each Lender and each Issuing Bank expressly acknowledges that none of the Agent nor any Joint Lead
Arranger has made any representation or warranty to it, and that no act by the Agent or any Joint Lead Arranger hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any
Affiliate thereof, shall be deemed to constitute any representation or warranty by the Agent or any Joint Lead Arranger to any Lender or Issuing Bank as to any matter, including whether the Agent or the Joint Lead Arrangers have disclosed
material information in their (or their Related Parties’) possession. Each Lender and each Issuing Bank represents to the Agent and each Joint Lead Arranger that it has, independently and without reliance upon the Agent, any Joint Lead Arranger,
any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis of, appraisal of, and investigation into, the business, prospects, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrowers hereunder. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Agent, the Joint Lead Arrangers, 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 credit analysis, appraisals and decisions in taking 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, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition
and creditworthiness of the Loan Parties. Each Lender and each Issuing Bank represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding
commercial loans in the ordinary course and is entering into this Agreement as a Lender or Issuing Bank for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such
Lender or Issuing Bank, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender and Issuing Bank agrees not to assert a claim in contravention of the foregoing. Each Lender and Issuing
Bank represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either
it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other
facilities.
Section 9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Joint Lead Arrangers listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Agent, a Lender or an Issuing Bank hereunder.
Section 9.09 Agent May File Proofs of Claim; Credit Bidding. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Agent (irrespective of whether the principal of any Advance or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall
have made any demand on any Loan Party) shall be entitled and empowered, 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 Advances, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Banks and the Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Banks and the Agent under Sections 2.04(h) and (i), 2.06 and 10.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, interim receiver, monitor, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Lender and each Issuing Bank to make such payments to the Agent and, in the event that the Agent shall consent to the making of such payments directly to the Lenders and the Issuing Banks, to pay to the Agent any amount due
for the reasonable compensation, expenses, disbursements and advances of the Agent and its agents and counsel, and any other amounts due the Agent under Sections 2.06 and 10.04.
Nothing contained herein shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or any Issuing Bank to authorize the Agent to vote in respect of the claim of any Lender or any Issuing Bank in any such proceeding.
The Secured Parties hereby irrevocably authorize the Agent, at the direction of the Majority Lenders, to credit bid all or any portion of the Obligations (including
accepting some or all of the Collateral in satisfaction of some or all of the Obligations 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 the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Debtor
Relief Laws or other applicable Laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the
Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a
ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the
liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to
consummate such purchase). In connection with any such bid (i) the Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided
that any actions by the Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Majority Lenders, irrespective
of the termination of this Agreement and without giving effect to the limitations on actions by the Majority Lenders contained in Section 10.01 of this Agreement), (iii) the Agent shall be authorized to assign the relevant Obligations
to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Equity Interests and/or debt instruments issued by such an acquisition vehicle on
account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and (iv) to the extent that Obligations that are assigned to an acquisition vehicle are
not used to 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 debt credit bid by the acquisition vehicle or
otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition
vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
Section 9.10 Lender ERISA Matters.. (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y)
covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance
of doubt, to or for the benefit of the Lead Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect
to such Lender’s entrance into, participation in, administration of and performance of the Advances, the Letters of Credit, the Commitments or this Agreement,
(ii) 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 transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled
separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to
such Lender’s entrance into, participation in, administration of and performance of the Advances, the Letters of Credit, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B)
such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Advances, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into,
participation in, administration of and performance of the Advances, 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 Advances, the Letters of Credit, the Commitments and this
Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another
representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, 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 Agent and not, for the avoidance of doubt, to or for the benefit of Lead Borrower or any other Loan Party,
that the Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Advances, the Letters of Credit, the Commitments and this Agreement
(including in connection with the reservation or exercise of any rights by the Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
As used in this Section, the following terms shall have the following meanings:
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of
the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Section 9.11 Collateral and Guaranty Matters. Without limiting the provisions of Section 9.09, each
of the Lenders (including in its capacities as a potential Cash Management Bank, a potential Hedge Bank and a potential Supply Chain Bank) and the Issuing Banks irrevocably authorize the Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the Agent under any Loan Document (i) upon the Release Date, (ii) that is sold or otherwise disposed of
or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder and under the other Loan Document to a Person that is not a Loan Party (including pursuant to any Permitted Supplier
Receivables Sale Program), (iii) that constitutes Excluded Assets, or (iv) if approved, authorized or ratified in writing in accordance with Section 10.01;
and
(b) to release any Guarantor (other than the Lead Borrower and Holdings) from its obligations hereunder if such Person ceases to be a Restricted Subsidiary as a
result of a transaction permitted under the Loan Documents or otherwise in accordance with Section 3.09.
Upon request by the Agent at any time, the Majority Lenders will confirm in writing the Agent’s authority to release its interest in particular types or items of
property, or to release any Guarantor from its obligations under its Guaranty pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Agent will, at the Borrowers’ expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in
such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11.
The Agent shall not 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 Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
Section 9.12 Bank Product Documents, Hedging Obligations and Secured Supply Chain Financings. No Cash
Management Bank, Hedge Bank or Supply Chain Bank (in its capacity as such) that obtains the benefits of Section 8.02, any Guaranty or any Collateral by virtue of the provisions hereof or any other Loan Document shall have any right to
notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a
Lender, Issuing Bank or Agent and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Agent shall not be required to verify the payment
of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Bank Product Documents, Hedging Obligations or Secured Supply Chain Financings unless the Agent has received written notice of such
Obligations, together with such supporting documentation as the Agent may request, from the applicable Cash Management Bank, Hedge Bank or Supply Chain Bank, as the case may be.
Section 9.13 Withholding Tax. To the extent required by any applicable Laws, the Agent may withhold from any
payment to any Lender an amount equivalent to any applicable withholding Tax. If the IRS or any other Governmental Authority asserts a claim that the Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for
any reason (including because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax
ineffective), such Lender shall indemnify and hold harmless the Agent (but only to the extent that the Loan Parties have not already indemnified the Agent for such Taxes and without limiting the obligation of the Loan Parties to do so) fully
for all amounts paid, directly or indirectly, by the Agent as Tax or otherwise, together with all expenses incurred, including legal expenses and any out-of-pocket expenses, in each case, 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 to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the 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 Agent to the Lender from any other source against any amount due to the Agent under this Section 9.13. Each
party’s obligations under this Section 9.13 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender Party, the termination of the Commitments and the repayment,
satisfaction or discharge of all other Obligations. For purposes of this Section 9.13, the term “Lender” includes any Issuing Bank and any Swing Line Lender.
Section 9.14 Recovery of Erroneous Payments. Without limitation of any other provision in this Agreement, if at any time the Agent makes a payment hereunder
in error to any Lender Party, whether or not in respect of an Obligation due and owing by the Borrowers at such time, where such payment is a Rescindable Amount, then in any such event, each Lender Party receiving a Rescindable Amount severally
agrees to repay to the Agent forthwith on demand the Rescindable Amount received by such Lender Party in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable
Amount is received by it to but excluding the date of payment to the Agent, at the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation. Each Lender Party
irrevocably 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 to its
obligation to return any Rescindable Amount. The Agent shall inform each Lender Party promptly upon determining that any payment made to such Lender Party comprised, in whole or in part, a Rescindable Amount.
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc.
(a) Lenders. Except as is otherwise expressly provided in this Section 10.01 or in Sections 2.06(d) or 2.09, no amendment or waiver
of any provision of this Agreement or any other Loan Document, nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Lenders and acknowledged by
the Agent; provided, however, that (i) no amendment, waiver or consent shall, unless in writing and signed by all the Lenders, do any of the following: (A) waive any of the conditions specified in Section 5.01, 5.02
or 5.03, (B) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Advances, or the number of Lenders, which shall be required for the Lenders or any of them to take any action hereunder, or the
definition of “Majority Lenders” hereunder, (C) amend this Section 10.01, (D) release (or subordinate the Lien securing the Obligations on) all or substantially all of the Collateral, (E) release all or substantially all of the value of
the Guarantees provided by the Loan Parties and (F) subordinate the Obligations hereunder; (ii) no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby, do any of the following: (A) increase
the Commitment of such Lender, (B) reduce or forgive the principal of, or rate of interest (other than default interest) on, the Advances made pursuant to Section 2.01 or any reimbursement obligation in respect of any Letter of Credit or
any fees or other amounts payable hereunder to such Lender, (C) postpone any date fixed for any payment of principal of, or interest on, the Advances made pursuant to Section 2.01 or any reimbursement obligation in respect of any Letter
of Credit or any fees or other amounts payable hereunder to such Lender, (D) change Section 4.03 or Section 8.02 and (E) modify the definition of “Permitted Overadvance” so as to increase the amount thereof, or, except as provided
in such definition, the time period for which a Permitted Overadvance may remain outstanding and (iii) no amendment, waiver or consent shall, unless in writing and signed by each Lender affected thereby, do any of the following: (A) increase the
advance rate percentages applied to eligible assets included in the Borrowing Base and (B) modify the definition of “Borrowing Base” or any component thereof in a manner that would result in an increase in the amount of the Borrowing Base; provided
that this clause (B) shall not limit the Agent’s right to add, increase, eliminate or reduce the amount of Reserves or exercise its Permitted Discretion with respect to such matters as otherwise provided herein); provided, further,
that any Loan Document may be amended and waived with the consent of the Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment or waiver is delivered in order (i) to comply with local
Law or advice of local counsel, (ii) to cure ambiguities or defects or (iii) to cause any Loan Document to be consistent with this Agreement and the other Loan Documents.
(b) Agent, Issuing Banks and Swing Line Lender. No amendment, waiver or consent given or effected pursuant to this Section 10.01 shall, unless in
writing and signed by the Agent, each Issuing Bank or the Swing Line Lender, as the case may be, in addition to the Lenders required above to take such action, affect the rights, obligations or duties of the Agent, such Issuing Bank or Swing Line
Lender, as the case may be, under this Agreement.
(c) Limitation of Scope. All waivers and consents granted under this Section 10.01 shall be effective only in the specific instance and for the
specific purpose for which given.
(d) Secured Obligations. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products
Obligations, Hedging Obligations or obligations in respect of Secured Supply Chain Financings (in each case, in such capacity) shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the
provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, Issuing Banks or Swingline Lender to the extent
applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Loan Party.
(e) Non-Consenting Lender. If any Lender does not consent (a “Non-Consenting Lender”) to a proposed amendment, waiver, consent or release with respect
to any Loan Document that requires the consent of each Lender and that has been approved by the Majority Lenders, Lead Borrower may replace such Non-Consenting Lender in accordance with Section 10.12; provided that such amendment,
waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by Lead Borrower to be made pursuant to this paragraph).
Section 10.02 Notices, Etc.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in
subsection (b) below), all notices and other communications 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 telecopier as follows, and all
notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Lead Borrower, the Agent, an Issuing Bank or the Swing Line Lender, to the address, telecopier number, electronic mail address or
telephone number specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative
Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to
the Lead Borrower).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by
telecopier 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). Notices
and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lender Parties hereunder may be delivered or furnished by electronic communication
(including e‑mail and Internet or intranet websites) pursuant to procedures approved by the Agent; provided that the foregoing shall not apply to notices to any Lender Party pursuant to Article II if such Lender Party has notified
the Agent that it is incapable of receiving notices under such Article by electronic communication. The Agent or the Lead 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 to particular notices or communications.
Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the
normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet
website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address
therefor.
(c) The Platform. THE PLATFORM IS PROVIDED “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 OR OMISSIONS 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 PARTY RIGHTS 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 Agent or any of
its Related Parties (collectively, the “Agent Parties”) have any liability to any Loan Party, any Lender Party or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Lead Borrower’s or the 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 resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Loan Party, any Lender
Party or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Lead Borrower, the Agent, the Issuing Banks and the Swing Line Lenders may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Lead
Borrower, the Agent, the Issuing Banks and the Swing Line Lender. In addition, each Lender agrees to notify the Agent from time to time to ensure that the Agent has on record (i) an effective address, contact name, telephone number, telecopier
number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public
Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Requirement of Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that
may contain material non-public information with respect to the Lead Borrower or its securities for purposes of United States Federal or state securities laws.
(e) Reliance by Agent and Lender Parties. The Agent and the Lender Parties shall be entitled to rely and act upon
any notices (including telephonic notices, Committed Advance Notices and Swing Line Advance Notices) purportedly given by or on behalf of the Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or 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 Borrowers shall indemnify the Agent, each Lender Party and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the reasonable reliance by such Person on each notice purportedly given by or on behalf of any Loan Party. All telephonic notices to and other telephonic
communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.
Section 10.03 No Waiver; Remedies. No failure on the part of any Lender Party or the Agent to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 10.04 Costs and Expenses.
(a) Expenses. The Borrowers agree to pay on demand all reasonable and documented costs and expenses of the Agent incurred in connection with the preparation,
execution, delivery, modification and amendment of this Agreement, and the other documents to be delivered hereunder, including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel for the Agent (and
appropriate local counsel) with respect thereto and with respect to advising the Agent as to its rights and responsibilities under this Agreement (in its capacity as such). The Borrowers further agree to pay on demand all costs and expenses of
the Agent, each Issuing Bank, the Swing Line Lender and each other Lender Party (including, without limitation, reasonable and documented fees and expenses of counsel), incurred in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of the Loan Documents, the Letters of Credit, the documents delivered in connection with the Swing Line Advances and the other documents to be delivered hereunder and thereunder.
(b) Breakage. If any payment of principal of, or Conversion of, any Term SOFR Loan is made other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion pursuant to Sections 2.09, 2.10, 2.12, acceleration of the maturity of the Advances pursuant to Section 8.01 or for any other reason, or by an Eligible Assignee to a
Lender other than on the last day of an Interest Period for such Advance upon an assignment of rights and obligations under this Agreement pursuant to Section 10.07 as a result of a demand by the Lead Borrower pursuant to Sections 10.07(h)
or 10.12, or if any Loan Party fails for any reason to make any payment or prepayment of an Advance for which a notice of prepayment was given or that is otherwise required to be made, whether pursuant to Sections 2.06, 2.10,
8.01 or otherwise, or if any Loan Party fails to make payment of any Advance or drawing under any Letter of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due date or any payment thereof in a
different currency, or upon any failure by any Loan Party (for a reason other than the failure of such Lender to make an Advance) to borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by such
Loan Party, the applicable Loan Party shall, upon written demand by any Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses which it may reasonably incur as a result of such payment or Conversion or such failure to pay or prepay, as the case may be, including, without limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(c) Indemnification by the Lead Borrower. The Loan Parties shall indemnify the Agent (and any sub-agent thereof), each Lender Party, and each Related Party
of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Lead Borrower or any other Loan Party 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 their respective obligations hereunder or thereunder or the consummation of
the transactions contemplated hereby or thereby, or, in the case of the Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Advance or Letter of Credit or the
use or proposed use of the proceeds therefrom (including any refusal by any Issuing Bank 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), (iii) any actual or alleged presence or release of Hazardous Substance on or from any property owned or operated by the Lead Borrower or any of its Subsidiaries, or any liability under Environmental Laws related in any way
to the Lead Borrower or any of its Subsidiaries, or (iv) any actual or prospective 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 the Lead Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non‑appealable judgment to have resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee (for purposes of
this proviso only, each of the Agent, any Joint Lead Arranger, any Issuing Bank, the Swing Line Lender or any Lender shall be treated as several and separate Indemnitees, but each of them together with its respective Related Parties, shall be
treated as a single Indemnitee) or any of its Related Parties or (y) any material breach of any Loan Document by such Indemnitee or any of its Related Parties or (z) arising from any claim, action, suit, inquiry, litigation, investigation or
proceeding that does not involve an act by or omission of Holdings, the Lead Borrower or any of their affiliates and that is brought by an Indemnitee against any other Indemnitee (other than any claim, actions, suits, inquiries, litigation,
investigation or proceeding against any Agent, any Joint Lead Arranger, any Issuing Bank or the Swing Line Lender acting in its capacity as such).
provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses
(d) This Section 10.04(c) shall not apply with respect to Taxes other than any Taxes that represent losses, damages, liabilities, or expenses arising from
any non-Tax claim.
(e) Reimbursement by Lenders. To the extent that the Lead Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (c)
of this Section to be paid by it to the Agent (or any sub-agent thereof), any Issuing Bank or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such Issuing Bank or such Related
Party, as the case may be, such Lender’s Commitment Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; 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 Agent (or any such sub-agent) or such Issuing Bank in its capacity as such, or against any Related Party of any of the
foregoing acting for the Agent (or any such sub-agent) or such Issuing Bank in connection with such capacity. The obligations of the Lenders under this subsection (d) are several, and the failure of any Lender to fund its obligations hereunder
shall not relieve any other Lender of its obligation, but no Lender shall be responsible for the failure of any other Lender to fund its obligations hereunder.
(f) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, no Loan Party shall assert, and each Loan Party 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, in connection with, or as a result of, this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Advance or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable
for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a
final judgment of a court of competent jurisdiction.
(g) The Borrowers hereby acknowledge that the funding method by each Lender of its Advances hereunder shall be in the sole discretion of such Lender. The Borrowers
agree that for purposes of any determination to be made under Sections 2.08, 2.11(a), 2.12 or 10.04(b) each Lender shall be deemed to have funded its Term SOFR Advances with proceeds of Dollar deposits in the
applicable interbank market.
(h) Without prejudice to the survival of any other obligation of the Loan Parties hereunder, the indemnities and obligations contained in this Section 10.04
shall survive the payment in full of all the Obligations.
Section 10.05 Right of Set-off. Upon (i) the occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent specified by Section 8.01 to authorize the Agent to declare the Advances due and payable pursuant to the provisions of Section 8.01 or to demand payment of (or cash
collateralization of) all then outstanding L/C Obligations, each Lender, each Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable 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, such Issuing Bank or any such
Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender Party, irrespective of whether or
not such Lender Party shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender Party different
from the branch or office holding such deposit or obligated on such indebtedness (it being understood and agreed that, notwithstanding anything in this Agreement or any of the other Loan Documents to the contrary, accounts, deposits, sums,
securities or other property of any Foreign Subsidiary or of any Subsidiary of a Foreign Subsidiary (including any Foreign Subsidiary that is a Loan Party) will not serve at any time, directly or indirectly, to collateralize or otherwise offset
the Obligations of the Lead Borrower or any Domestic Subsidiary, and, in addition, unless otherwise agreed to by the Lead Borrower, the accounts, deposits, sums, securities or other property of a Foreign Subsidiary or Subsidiary of a Foreign
Subsidiary will only serve to collateralize or offset the Obligations of another Foreign Subsidiary or Subsidiary of a Foreign Subsidiary that is a Loan Party and is not a United States Person for U.S. federal income tax purposes if such former
Foreign Subsidiary or Subsidiary of a Foreign Subsidiary is owned by such latter Foreign Subsidiary or Subsidiary of a Foreign Subsidiary that is a Loan Party). The rights of each Lender, each Issuing Bank and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such Issuing Bank or their respective Affiliates may have. Each Lender and each Issuing Bank agrees to notify the Lead Borrower and
the 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 10.06 Binding Effect. This Agreement shall become effective when it shall have been executed by each Loan Party to be a party hereto on the date
hereof, each Issuing Bank to be a party hereto on the date hereof, and the Agent and when the Agent shall have been notified by each Lender that such Lender has executed it and thereafter shall be binding upon and inure to the benefit of each
Loan Party, each Issuing Bank, the Agent and each Lender and their respective successors and assigns, except that no Loan Party shall have the right to assign its respective rights hereunder or any interest herein without the prior written
consent of the Lenders.
Section 10.07 Assignments and Participations. (a) Successors and Assigns Generally. The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Lead Borrower nor any other Loan Party may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of the 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 10.07(b), (ii) by way of participation in accordance with the provisions of Section 10.07(d), or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.07(f)
(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 subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent and the Lender Parties) 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 rights and obligations under this Agreement
(including all or a portion of its Commitment(s) and the Advances (including for purposes of this Section 10.07(b), participations in L/C Obligations and in Swing Line Advances) at the time owing to it); provided that any such
assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and the Advances at the
time owing to it under such Facility or in the case of 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 subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes
Advances outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Advances of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Agent or, if “Trade Date” is specified in the Assignment and Acceptance, as of the Trade Date, shall not be less than $10,000,000 unless each of the Agent and, so long as no Event of Default has
occurred and is continuing, Lead Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s
rights and obligations under this Agreement with respect to the Advances or the Commitment assigned, except that this clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Advances or (B)
prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis;
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this
Section and, in addition:
(A) the consent of the Lead Borrower (such consent not to be, in the case of assignments to major banks, unreasonably withheld or delayed) shall
be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Lead Borrower shall be deemed
to have consented to any such assignment unless it shall object thereto by written notice to the Agent within ten (10) Business Days after having received notice thereof;
(B) the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of any
Revolving Credit Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender;
(C) the consent of each Issuing Bank (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in
respect of the Revolving Credit Facility.
(iv) Assignment and Acceptance. The parties to each assignment shall execute and deliver to the Agent an Assignment and Acceptance,
together with a processing and recordation fee in the amount of $3,500; provided, however, that the 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 the Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made to Holdings or any of Holdings’ Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be made to (A) 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 (A), or (B) a natural person (or to a holding company, investment vehicle or trust for, or owned and operated for the
primary benefit of a natural person).
Subject to acceptance and recording thereof by the Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance 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 2.11, 4.02 and 10.03 with respect to facts and circumstances occurring
prior to the effective date of such assignment. Upon request, the applicable Loan Party (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.07(d).
(c) Register. The Agent, acting solely for this purpose as a non-fiduciary agent of the Lead Borrower (and such agency being solely for tax purposes), shall
maintain at the Agent’s Office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal and interest amounts of the Advances and
L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Lead Borrower, the 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 all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Lead Borrower
and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, the Lead Borrower or the Agent, sell participations to any Person
(other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person, a Defaulting Lender or the Lead Borrower or any of the Lead Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Advances (including such Lender’s participations in L/C
Obligations and/or Swing Line Advances) 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
performance of such obligations and (iii) the Lead Borrower, the Agent, the Lender Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clause (i) of the proviso to Section 10.01(a) that affects
such Participant. The Lead Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.11 and 4.02 subject to the requirements and limitations therein, including the requirements under Section 4.02(e)
(it being understood that the documentation required under Section 4.02(e) shall be delivered solely to the participating Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.07(b);
provided that such Participant (A) shall be subject to the provisions of Section 10.12 as if it were a Lender, and (B) shall not be entitled to receive any greater payment under Sections 2.11 or 4.02 with respect to
any participation than its participating Lender would have been entitled to receive, except to the extent that such entitlement to receive greater payment results from a Change in Law after the participant acquired the participation. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.05 as though it were a Lender; provided such Participant shall be subject to Section 4.03
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 Lead Borrower (and such agency being solely for tax
purposes), maintain a register on which it enters the name and address of each Participant and the principal amounts (and related interest amounts) of each Participant’s interest in the Advances 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 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) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other
obligation is in registered form under Section 5f.103-1(c) and proposed Section 1.163-5 of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement, notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent)
shall have no responsibility for maintaining a Participant Register.
(e) [Reserved].
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including
under its Note, if any) 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
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Resignation as Issuing Bank or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time a Lender
that is, or has an Affiliate or branch that is, an Issuing Bank or the Swing Line Lender (a “Fronting Bank”) assigns all of its Revolving Credit Commitment and Revolving Credit Advances pursuant to Section 10.07(b), such Fronting Bank
may, (i) upon 30 days’ notice to the Lead Borrower and the Lenders, resign as Issuing Bank and/or (ii) upon 30 days’ notice to the Lead Borrower, resign as Swing Line Lender. In the event of any such resignation as Issuing Bank or Swing Line
Lender, the Lead Borrower shall be entitled to appoint from among the Lenders a successor Issuing Bank or Swing Line Lender hereunder; provided, however, that no failure by the Lead Borrower to appoint any such successor shall
affect the resignation of the applicable Fronting Bank as Issuing Bank or Swing Line Lender, as the case may be. If a Fronting Bank resigns as Issuing Bank, it shall retain all the rights, powers, privileges and duties of an Issuing Bank
hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Bank and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.04(c)). If a Fronting Bank resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Advances made
by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Advances pursuant to Section 2.03(c). Upon the
appointment and acceptance of such appointment of a successor Issuing Bank and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank or Swing
Line Lender, as the case may be, and (b) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the
applicable Fronting Bank to effectively assume the obligations of such Fronting Bank with respect to such Letters of Credit.
(h) If any Lender requests any payment from any Loan Party under 2.11 or 4.02, or if any Lender is a Defaulting Lender, then, subject to Section 10.07(a)
and provided no Default or Event of Default shall have occurred and be continuing, the Lead Borrower may, at its sole expense and effort, upon notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents required by, Section 10.07), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(i) the Lead Borrower shall have paid to the Agent the assignment fee specified in Section 10.07(b);
(ii) such Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Advances and L/C Advances, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 10.04(b)) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Lead Borrower (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.11 or payments required to be made
pursuant to Section 4.02, such assignment will result in a reduction in such compensation or payments thereafter; and
(iv) such assignment does not conflict with applicable Requirements of Law.
(i) Voting Participants. Notwithstanding anything in this Section 10.07 to the contrary, any Farm Credit
Lender that (i) is the owner of a participation in a Commitment (including Revolving Credit Borrowings outstanding hereunder) initially in the amount of at least $10,000,000; (ii) is, by written notice to the Lead Borrower and the Agent (a “Voting
Participant Notification”), designated by the selling Lender as being entitled to be accorded the rights of a voting participant hereunder (any Farm Credit Lender so designated being called a “Voting Participant”); and (iii) receives
the prior written consent of the Lead Borrower and the Agent to become a Voting Participant, shall be entitled to vote for so long as such Farm Credit Lender owns such participation and notwithstanding any sub‑participation by such Farm Credit
Lender (and the voting rights of the selling Lender shall be correspondingly reduced), on a dollar for dollar basis, as if such Participant were a Lender, on any matter requiring or allowing a Lender to provide or withhold its consent, or to
otherwise vote on any proposed action; provided, however, that if such Voting Participant has at any time failed to fund any portion of its participation when required to do so, then until such time as all amounts of its
participation required to have been funded have been funded, such Voting Participant shall not be entitled to exercise its voting rights pursuant to the terms of this Section 10.07(i), and the voting rights of the selling Lender shall not
be correspondingly reduced by the amount of such Voting Participant’s participation. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant on Schedule 10.07(i) hereto shall be a Voting Participant
without delivery of a Voting Participant Notification and without the prior written consent of the Lead Borrower and the Agent. To be effective, each Voting Participant Notification shall, with respect to any Voting Participant, (A) state the
full name, as well as all contact information required for an assignee in the Assignment and Acceptance; and (B) state the dollar amount of the participation purchased. The selling Lender and the Voting Participant shall notify the Agent and the
Lead Borrower within three (3) Business Days of any termination of, reduction or increase in the amount of, such participation. The Lead Borrower and the Agent shall be entitled to conclusively rely on information contained in notices delivered
pursuant to this Section 10.07(i). The voting rights hereunder are solely for the benefit of the Voting Participants and shall not inure to any assignee or participant of a Voting Participant.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Lead Borrower to require such
assignment and delegation cease to apply.
Section 10.08 Payments Set Aside. To the extent that any payment by or on behalf of the Lead Borrower is made to the Agent or any Lender Party, or the Agent,
any Issuing Bank or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential or a transfer at undervalue, set aside or
required (including pursuant to any settlement entered into by the Agent or such Lender Party in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise,
then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each
Lender and each Issuing Bank severally agrees to pay to the Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Agent, plus interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lender Parties under clause (b) of the preceding
sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
Section 10.09 Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
Section 10.10 Independence of Provisions. All agreements and covenants hereunder shall be given independent effect such that if a particular action or
condition is prohibited by the terms of any such agreement or covenant, the fact that such action or condition would be permitted within the limitations of another agreement or covenant shall not be construed as allowing such action to be taken
or condition to exist.
Section 10.11 Confidentiality. Each Lender, each Issuing Bank and the Agent (each, a “Recipient”)
agrees that it will not disclose to any third party any Confidential Information provided to it by the Lead Borrower; except that Confidential Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential), (b) to the extent required or requested by any regulatory 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), (c) to the extent required by applicable Laws or regulations or by
any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan
Document 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 assignee of or
Participant in, any of its rights and obligations under this Agreement or (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 the
Borrowers and their obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Lead Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the
CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Lead Borrower or (i) to
the extent such information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Agent, any Lender, any Issuing Bank or any of their respective Affiliates on a nonconfidential basis
from a source other than the Lead Borrower. In addition, the Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry
and service providers to the Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments).
Section 10.12 Replacement of Lenders. If any Lender is a Defaulting Lender or a Non-Consenting Lender, then
the Lead Borrower may, at its sole expense and effort, upon notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents
required by, Section 10.07), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided that:
(a) Lead Borrower shall have paid to the Agent the assignment fee specified in Section 10.07;
(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.11) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of
all other amounts); and
(c) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Lead Borrower to require such assignment
and delegation cease to apply.
Section 10.13 Headings. Article and Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
Section 10.14 Entire Agreement. This Agreement sets forth the entire agreement of the parties with respect to
its subject matter and, except for the letter agreements referred to in Section 2.05(b), supersedes all previous understandings, written or oral, in respect thereof.
Section 10.15 Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Section 10.16 Consent to Jurisdiction. (a) Each of the parties hereto hereby irrevocably and unconditionally
agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against any party hereto or any Related Party of the foregoing 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 York County, 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 that all 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 hereby irrevocably agrees, to the fullest extent each may
effectively do so, that each will not assert any defense that such courts do not have subject matter or personal jurisdiction of such action or proceeding or over any party hereto. Each of the parties hereby irrevocably consents to the service
of copies of the summons and complaint and any other process which may be served in any such action or proceeding by certified mail, return receipt requested, or by delivering of a copy of such process to such party at its address specified in
Section 10.02 or by any other method permitted by law. Each of the parties hereby 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 by
any other manner provided by law. Each Loan Party (other than the Lead Borrower) hereby agrees that service of process may be made upon the Lead Borrower and each other Loan Party hereby irrevocably appoints the Lead Borrower its authorized
agent to accept such service of process, and agrees that the failure of the Lead Borrower to give any notice of any such service shall not impair or affect the validity of such service or of any judgment rendered in any action or proceeding
based thereon. To the extent that any Loan Party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, each Loan Party hereby irrevocably waives such immunity in respect of its obligations under this Agreement.
(b) Nothing in this Section 10.16 shall affect the right of any of the parties hereto to serve legal process in any other manner permitted by law or affect
the right of any of the parties to bring any action or proceeding against any of the parties or their property in the courts of other jurisdictions.
Section 10.17 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 10.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Agent
(for itself and not on behalf of any Lender) hereby notifies the Lead Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to
obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Agent, as applicable, to identify each Loan Party
in accordance with the Act. The Borrowers shall, promptly following a request by the Agent or any Lender, provide all documentation and other information that the Agent or such Lender requests in order to comply with its ongoing obligations
under applicable “know your customer” an anti-money laundering rules and regulations, including the Act and the Beneficial Ownership Regulation.
Section 10.19 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Lead Borrower and each other Loan Party acknowledges and agrees that: (i) (A) the arranging and other services regarding this Agreement provided by the Agent, the Joint Lead Arrangers and the Lenders are arm’s-length commercial transactions between the Lead Borrower, each other Loan Party and their respective Subsidiaries, on the one hand, and the Agent, the Joint Lead Arrangers and the Lenders, on the other hand, (B) each of the Lead Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Lead Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; (ii) (A) the Agent, each Joint Lead Arranger and each Lender each is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Lead Borrower, any other Loan Party or any of their respective Subsidiaries, or any other Person and (B) none of the Agent, any Joint Lead Arranger or any Lender has any obligation to the Lead Borrower, any other Loan Party or any of their respective Subsidiaries with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the Agent, the Joint Lead Arrangers and the Lenders and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Lead Borrower, the other Loan Parties and their respective Subsidiaries, and none of the Agent, any Joint Lead
Arranger or any Lender has any obligation to disclose any of such interests to the Lead Borrower, any other Loan Party or any of their respective Subsidiaries. To the fullest extent permitted by law, each of the Lead Borrower and the other Loan
Parties hereby waives and releases any claims that it may have against the Agent, the Joint Lead Arrangers
and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
Section 10.20 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Agent could purchase the first currency with such other currency on the Business Day preceding that
on which final judgment is given. The obligation of each Loan Party in respect of any such sum due from it to the Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Agent of any
sum adjudged to be so due in the Judgment Currency, the Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum
originally due to the Agent from any Loan Party in the Agreement Currency, the Lead Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Agent or the Person to whom such obligation was owing against
such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Agent in such currency, the Agent agrees to return the amount of any excess to the Lead Borrower (or to any other Person who may be
entitled thereto under applicable Law).
Section 10.21 Electronic Execution of Assignments and Certain Other Documents. The words “execute,”
“execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Acceptance,
amendments or other modifications, Committed Advance Notices, Swing Line Advance Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic
platforms approved by the Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the
case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws
based on the Uniform Electronic Transactions Act or other similar applicable Laws including the Personal Information Protection and Electronic Documents Act (Canada) and the Electronic Commerce Act, 2000 (Ontario); provided that notwithstanding anything contained herein
to the contrary the Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Agent pursuant to procedures approved by it.
Section 10.22 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Solely to the extent any Lender or Issuing Bank that is an Affected
Financial Institution is a party to this Agreement and 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 Lender or Issuing Bank that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, 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 hereunder which may be payable
to it by any Lender or Issuing Bank that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under
this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable
Resolution Authority.
Section 10.23 WAIVER OF JURY TRIAL. EACH OF THE LOAN PARTIES, THE AGENT, THE LENDERS AND EACH ISSUING BANK HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ADVANCES OR THE LETTERS OF CREDIT, OR THE ACTIONS OF THE
AGENT OR ANY LENDER PARTY IN CONNECTION WITH THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 10.24 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide
support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as
follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations
promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be
stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution
Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC
Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and
rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could
be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed
that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 10.24, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
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