8-K/A
true 0001599617 0001599617 2021-12-14 2021-12-14

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K/A

(Amendment No. 1)

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 14, 2021

 

 

NOW INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-36325   46-4191184

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

7402 North Eldridge Parkway

Houston, Texas

  77041
(Address of principal executive offices)   (Zip Code)

281-823-4700

(Registrant’s telephone number, including area code)

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

Common Stock, par value $0.01   DNOW   New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


EXPLANATORY NOTE

On December 17, 2021, NOW Inc. (the “Company”) filed a current report on Form 8-K (the “Original 8-K”) disclosing its entry into an amendment (the “First Amendment”) to the existing senior secured credit facility dated as of April 30, 2018, among the Company, certain of its direct and indirect subsidiaries, the lenders party thereto and Wells Fargo Bank, National Association serving as the administrative agent, an issuing lender and swing lender (as amended, the “Credit Agreement”). Due to a clerical matter, the Company is filing this Amendment No.1 (this “8-K Amendment”) to the Original 8-K in order to replace the redlined changes in Exhibit A of Exhibit 10.1 thereto, which included the full and accurate text of the Credit Agreement (as so amended) in the Original 8-K but inadvertently omitted certain redlined changes. Accordingly, the complete version of the First Amendment is filed herewith as Exhibit 10.1. Other than correction of the redlined exhibit discussed in this 8-K Amendment, no other changes have been made to the Original 8-K or the exhibits filed therewith.

 

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits

 

 

*

Exhibits and schedules omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibit or schedule will be furnished supplementally to the SEC upon request.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    NOW INC.
Date: February 4, 2022     By:  

/s/ Raymond W. Chang

      Raymond W. Chang
      Vice President & General Counsel
EX-10.1

Exhibit 10.1

FIRST AMENDMENT TO CREDIT AGREEMENT, AND

FIRST AMENDMENT TO US GUARANTY AND SECURITY AGREEMENT

This FIRST AMENDMENT TO CREDIT AGREEMENT, AND FIRST AMENDMENT TO US GUARANTY AND SECURITY AGREEMENT (this “Agreement”), is entered into as of December 14, 2021 (the “First Amendment Effective Date”), by and among NOW INC., a Delaware corporation (“Parent”), DNOW L.P., a Texas limited partnership (“DNOW” and, together with Parent, each a “US Borrower” and individually and collectively, jointly and severally, the “US Borrowers”), DNOW CANADA ULC, an Alberta unlimited liability corporation (the “Canadian Borrower” and, together with the US Borrowers, each a “Borrower” and individually and collectively, the “Borrowers”) and the additional parties party hereto in their capacity as guarantors (“Guarantors” and together with the Borrowers the “Loan Parties” and each, individually, a “Loan Party”), the undersigned Lenders (as defined below), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Wells Fargo”), as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacities, “Agent”).

W I T N E S S E T H:

WHEREAS, pursuant to that certain Credit Agreement, dated as of April 30, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the lenders identified on the signature pages thereto (each of such lenders, together with its successor and permitted assigns, a “Lender”), Agent, Wells Fargo, JPMorgan Chase Bank, N.A. (“Chase”), and Royal Bank Of Canada (“RBC”), as joint lead arrangers, Wells Fargo, Chase, and RBC, as joint bookrunners, Chase and RBC, as co-syndication agents, and the Loan Parties from time to time party thereto, the Lender Group has agreed to make or issue Loans, Letters of Credit and other certain financial accommodations thereunder;

WHEREAS, pursuant to that certain Guaranty and Security Agreement, dated as of April 30, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “US Guaranty and Security Agreement”), by and among each US Loan Party, as a grantor, and Agent, each US Loan Party (other than US Borrowers) guarantied the Guarantied Obligations (as defined therein) and each US Loan Party granted to Agent, for the benefit of the Lender Group and the Bank Product Providers, a continuing security interest in and to the Collateral in order to secure the prompt and complete payment, observance and performance of, among other things, the Secured Obligations (as defined therein);

WHEREAS, initially capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement; and

WHEREAS, the Loan Parties have requested that Agent and the Lenders agree to amend the Credit Agreement and the US Guaranty and Security Agreement in certain respects, and Agent and the undersigned Lenders are willing to do so, subject to the terms and conditions specified herein.


NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the parties hereto hereby agrees as follow:

1.    Amendments to Credit Agreement. In reliance on the representations and warranties of the Loan Parties set forth in Section 5 below, and subject to the satisfaction of the conditions to effectiveness set forth in Section 4 below, the Credit Agreement is hereby amended as follows:

(a)    The Credit Agreement is hereby amended (a) to delete red or green stricken text (indicated textually in the same manner as the following examples: stricken text and stricken text) and (b) to add the blue or green double-underlined text (indicated textually in the same manner as the following examples: double-underlined text and double-underlined text), in each case, as set forth in the conformed copy of the Credit Agreement attached hereto as Exhibit A.

(b)    Exhibit B-1 of the Credit Agreement is hereby amended and restated in its entirety by the identically captioned Exhibit B-1 attached hereto.

(c)    Exhibit C-1 of the Credit Agreement is hereby amended and restated in its entirety by the identically captioned Exhibit C-1 attached hereto.

(d)    Exhibit L-1 of the Credit Agreement is hereby amended and restated in its entirety by the identically captioned Exhibit L-1 attached hereto.

(e)    Schedule C-1 of the Credit Agreement is hereby amended and restated in its entirety by the identically captioned Schedule C-1 attached hereto.

(f)    Schedules 5.2, P-2, 4.1(c) and 4.25 to the Credit Agreement are each hereby amended and restated in their entirety by the identically captioned Schedules attached hereto.

2.    Amendments to the US Guaranty and Security Agreement. In reliance on the representations and warranties of the Loan Parties set forth in Section 5 below, and subject to the satisfaction of the conditions to effectiveness set forth in Section 4 below, the US Guaranty and Security Agreement is hereby amended as follows:

(a)    Section 1(a)(vii) of the US Guaranty and Security Agreement is hereby amended and restated in its entirety as follows:

(vii) “Cash Dominion Event” means the occurrence of either of the following: (A) the occurrence and continuance of any Event of Default, or (B) Aggregate Excess Availability is less than the greater of (x) 10% of the Line Cap, and (y) $40,000,000.

(b)    Section 1(a)(viii) of the US Guaranty and Security Agreement is hereby amended and restated in its entirety as follows:

(vii) “Cash Dominion Period” means the period commencing after the occurrence of a Cash Dominion Event and continuing until the date when (A) no


Event of Default shall exist and be continuing, and (B) Aggregate Excess Availability is greater than or equal to the greater of (x) 10% of the Line Cap, and (y) $40,000,000, for 30 consecutive days.

(c)    Section 6 of the US Guaranty and Security Agreement is hereby amended by replacing each reference to “the Closing Date” set forth in the first paragraph of Section 6, Section 6(d), Section 6(f), Section 6(g) and Section 6(j) with a reference to “the First Amendment Effective Date” in lieu thereof.

(d)    Section 7(g)(i) of the US Guaranty and Security Agreement is hereby amended and restated in its entirety as follows:

(i)    Upon the request of Agent, in order to facilitate filings with the PTO, the United States Copyright Office or any foreign filing office, each Grantor shall execute and deliver to Agent one or more Copyright Security Agreements, Trademark Security Agreements, or Patent Security Agreements to further evidence Agent’s Lien on such Grantor’s United States or Canadian issued and registered Patents, Trademarks, or Copyrights, and the General Intangibles of such Grantor relating thereto or represented thereby;

(e)    Schedules 5 and 9 to the US Guaranty and Security Agreement are each hereby amended and restated in their entirety as set forth on the identically captioned schedules attached hereto.

3.    Conditions to Effectiveness. This Agreement shall become effective and be deemed effective as of the date when, and only when, all of the following conditions have been satisfied (such date, the “Amendment Effective Date”):

(a)    Agent shall have received a copy of this Agreement, duly authorized, executed and delivered by the Loan Parties, Agent and Lenders;

(b)    Agent and the Lenders shall have received fully executed copies of each of the documents, instruments and agreements set forth on the closing checklist attached hereto as Exhibit B (other than the documentation identified as “post-closing”), each in form and substance reasonably satisfactory to Agent and the undersigned Lenders and such other agreements, instruments, approvals or other documents reasonably requested by Agent or the undersigned Lenders prior to the date hereof in order to effect the intent of this Agreement;

(c)    the representations and warranties of the Loan Parties and each of the other Loan Parties contained in this Agreement, the Credit Agreement, the US Guaranty and Security Agreement and the other Loan Documents shall be true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the Amendment Effective Date (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date);


(d)    Borrower shall have paid all fees costs and expenses due and payable as of the Amendment Effective Date under the Credit Agreement and the other Loan Documents, including without limitation all attorney’s fees and expenses incurred by Agent; and

(e)    no Default or Event of Default shall have occurred and be continuing.

4.    Representations and Warranties of the Loan Parties. Each Loan Party hereby represents and warrants as of the Amendment Effective Date to Agent for the benefit of the Lender Group and Bank Product Providers as follows:

(a)    the execution, delivery, and the performance by it of this Agreement and each other Loan Document to which it is a party (including, without limitation, after giving effect to this Agreement, the Credit Agreement and the US Guaranty and Security Agreement), (i) have been duly authorized by all necessary action on the part of such Loan Party and (ii) do not and will not (A) violate any material provision of federal, state, provincial or local law or regulation applicable to such Loan Party or its Subsidiaries, the Governing Documents of such Loan Party or its Subsidiaries, or any order, judgment, or decree of any court or other Governmental Authority binding on such Loan Party or its Subsidiaries, (B) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any material agreement of such Loan Party or its Subsidiaries where any such conflict, breach or default could individually or in the aggregate reasonably be expected to have a Material Adverse Effect, (C) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets of such Loan Party, other than Permitted Liens, (D) require any approval of such Loan Party’s interest holders or any approval or consent of any Person under any material agreement of such Loan Party, other than consents or approvals that have been obtained and that are still in force and effect and except, in the case of material agreements, for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected to cause a Material Adverse Effect, or (E) require any registration with, consent, or approval of, or notice to or other action with or by, any Governmental Authority, other than registrations, consents, approvals, notices, or other actions that have been obtained and that are still in force and effect;

(b)    the representations and warranties contained in this Agreement, the Credit Agreement, the US Guaranty and Security Agreement and the other Loan Documents are true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the Amendment Effective Date (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date); and

(c)    no Default or Event of Default has occurred and is continuing.

5.     Post-Close Covenants.

(a)    Within sixty (60) days after the First Amendment Effective Date (or such later date as may be agreed to by Agent in its sole discretion, including via electronic mail), the


Loan Parties shall deliver to Agent (i) an additional insured endorsement and (ii) a notice of cancellation endorsement with respect to the liability insurance policies of the Loan Parties, in each case in form and substance reasonably acceptable to Agent.

(b)    Within sixty (60) days after the First Amendment Effective Date (or such later date as may be agreed to by Agent in its sole discretion, including via electronic mail), the Loan Parties shall deliver to Agent (i) a modification endorsement to Agent’s policy of title insurance and (ii) current title search, in each case in form and substance reasonably acceptable to Agent.

(c)    Within ten (10) Business Days after the First Amendment Effective Date (or such later date as may be agreed to by Agent in its sole discretion, including via electronic mail), the Loan Parties shall deliver to Agent (i) an executed Patent Security Agreement with respect to Canadian patents of the Loan Parties and (ii) an executed Trademark Security Agreement with respect to the Canadian trademarks of the Loan Parties, in each case in form and substance reasonably acceptable to Agent.

(d)    Within ninety (90) days after the First Amendment Effective Date (or such later date as may be agreed to by Agent in its sole discretion, including via electronic mail), the Loan Parties shall deliver to Agent a release of the Alberta Land Charge with Registration Number 95103100855, dated October 31, 1995, by Oil States Industries, Inc., as Secured Party, against Dura Manufacturing, Inc., 4500, 855 - 2ND STREET S.W., CALGARY, AB T2P 4K7, in form and substance reasonably acceptable to Agent.

6.     Departing Lenders; Commitments; Reallocations.

(a)    Each party hereto acknowledges and agrees that some Persons which were Lenders under the Credit Agreement immediately prior to giving effect to this Agreement (the “Pre-Closing Credit Agreement”) will not be Lenders under the Credit Agreement immediately after giving effect to this Agreement (each, a “Departing Lender” and, collectively, the “Departing Lenders”), and each party hereto acknowledges and agrees that the obligations owing to any Departing Lender as of the First Amendment Effective Date shall be repaid in full and the Commitments of the Departing Lenders shall be cancelled in their entirety as of the First Amendment Effective Date and, upon such repayment, such Departing Lender shall be deemed to have relinquished its rights under the Existing Credit Agreement and the Credit Agreement and be deemed released from its obligations thereunder, but shall nevertheless continue to be entitled to the benefits (and bound by any related obligations) that expressly survive with respect to Lenders no longer holding Commitments.

(b)    Each Lender under the Credit Agreement agrees that, as of the First Amendment Effective Date, its Commitments under the Credit Agreement are accurately set forth on Schedule C-1 to this Agreement.

(c)    On the First Amendment Effective Date, each Borrower and each Lender agrees that the Agent may make such transfers of funds as the Agent deems necessary to pay the Departing Lenders as contemplated above, to fund any Revolving Credit Loans on the First Amendment Effective Date (subject to the satisfaction of the conditions precedent to the making


such Loans as set forth in the Credit Agreement), and to cause the outstanding principal balance of all Loans and the aggregate Letter of Credit Exposure to comport with the Lenders’ Commitments under the Credit Agreement (the “Reallocation of Obligations”), and each such Person agrees to cooperate with Agent to effect the Reallocation of Obligations, including, without limitation, the funding of additional Revolving Loans to the Agent or the accepting of payment on Revolving Loans, as requested by the Agent. Borrowers shall pay to the Lenders any costs of the type referred to in Section 2.12(b)(ii) of the Credit Agreement in connection with any repayment and/or Revolving Loans required pursuant to this clause (c) to the extent necessary to effect the Reallocation of Obligations.

(d)    On the First Amendment Effective Date, all risk participations and pro rata obligations with respect to Letters of Credit, Swing Line Loans, indemnities, and otherwise under the Credit Agreement shall be deemed reallocated such that they are determined by reference to such Lender’s Commitments under the Credit Agreement.

7.    Further Assurances. At any time upon the reasonable request of Agent or the Required Lenders, each Loan Party shall promptly execute and deliver to Agent or the Lenders such Additional Documents as Agent or the Required Lenders shall reasonably request pursuant to the Credit Agreement, the US Guaranty and Security Agreement and the other Loan Documents, in each case in form and substance reasonably satisfactory to Agent and the Required Lenders.

8.    Choice of Law and Venue; Jury Trial Waiver; Judicial Reference. THIS AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE SET FORTH IN SECTION 12 OF THE CREDIT AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.

9.    Binding Effect. This Agreement shall be binding upon the Loan Parties and each other Loan Party and shall inure to the benefit of Agent and the Lenders, together with their respective successors and permitted assigns.

10.    Effect on Loan Documents.

(a)    The terms and provisions set forth in this Agreement shall modify and supersede all inconsistent terms and provisions of the Credit Agreement and the US Guaranty and Security Agreement and shall not be deemed to be a consent to the modification or amendment of any other term or condition of the Credit Agreement or the US Guaranty and Security Agreement. Except as expressly modified and superseded by this Agreement, the terms and provisions of the Credit Agreement, the US Guaranty and Security Agreement and each of the other Loan Documents are ratified and confirmed and shall continue in full force and effect.

(b)    Each reference in the Credit Agreement, the US Guaranty and Security Agreement or any other Loan Document to this “Agreement”, “hereunder”, “herein”, “hereof”, “thereunder”, “therein”, “thereof”, or words of like import referring to the Credit Agreement, the US Guaranty and Security Agreement or any other Loan Document shall mean and refer to such agreement as modified by this Agreement.


11.    Reaffirmation. Each Loan Party as debtor, grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Loan Party grants liens or security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be, hereby (a)ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party and (b) to the extent such Loan Party granted liens on or security interests in any of its property pursuant to any Loan Document, including, without limitation, the US Guaranty and Security Agreement, as security for or otherwise guaranteed the Obligations, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations. The execution of this Agreement shall not operate as a waiver of any right, power or remedy of the Lenders or Agent, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations.

12.    Release.

(a)    In consideration of the agreements of Agent and the Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Loan Party, on behalf of itself and its successors and assigns, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent and the Lenders, and their successors and assigns, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent, each Lender and all such other Persons being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which any Loan Party or any of their respective successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever in relation to, or in any way in connection with the Credit Agreement, the Guaranty and Security Agreements or any of the other Loan Documents or transactions thereunder or related thereto which arises at any time on or prior to the day and date of this Agreement.

(b)    Each Loan Party understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.

(c)    Each Loan Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.

13.    Fees and Expenses. Borrower agrees to pay on demand all reasonable costs and expenses of Agent (including reasonable attorneys’ fees) incurred in connection with the preparation, negotiation, execution, delivery and administration of this Agreement and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided herein shall survive any termination of this Agreement and the Credit Agreement and the US Guaranty and Security Agreement as amended hereby.


14.    Miscellaneous

(a)    This Agreement is a Loan Document. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of this Agreement by telefacsimile or other electronic image scan transmission (e.g., “PDF” or “tif” via email) shall be equally effective as delivery of an original executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile or other electronic image scan transmission also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement shall be deemed to include Electronic Signatures, deliveries 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, physical delivery thereof 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 nothing herein shall require the Agent to accept Electronic Signatures in any form or format without its prior written consent.

(b)    Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

(c)    Headings and numbers have been set forth herein for convenience only. Unless the contrary is compelled by the context, everything contained in each Section applies equally to this entire Agreement.

(d)    Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against any member of the Lender Group or any Loan Party, whether under any rule of construction or otherwise. This Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.

(e)    The pronouns used herein shall include, when appropriate, either gender and both singular and plural, and the grammatical construction of sentences shall conform thereto.


(f)    This Agreement shall be subject to the rules of construction set forth in Section 1.4 of the Credit Agreement, and such rules of construction are incorporated herein by this reference, mutatis mutandis.

[remainder of this page intentionally left blank].


IN WITNESS WHEREOF, the Loan Parties, Agent and the undersigned Lenders party hereto have caused this Agreement to be duly executed by its authorized officer as of the day and year first above written.

 

LOAN PARTIES:                                                                                 NOW INC., a Delaware corporation

 

By:  

/s/ Raymond Chang

Name:   Raymond Chang
Title:   Vice President, General Counsel and Secretary
DNOW L.P., a Texas limited partnership
By:   Wilson International, Inc., its general partner
By:  

/s/ Raymond Chang

Name:   Raymond Chang
Title:   Vice President, General Counsel and Secretary
NOW MANAGEMENT LLC, a Delaware limited liability company
By:  

/s/ Raymond Chang

Name:   Raymond Chang
Title:   Vice President, General Counsel and Secretary
ODESSA PUMPS AND EQUIPMENT, INC., a Texas corporation
By:  

/s/ Raymond Chang

Name:   Raymond Chang
Title:   Vice President, General Counsel and Secretary
POWER SERVICE, INC., a Wyoming corporation
By:  

/s/ Raymond Chang

Name:   Raymond Chang
Title:   Vice President, General Counsel and Secretary


WILSON INTERNATIONAL, INC., a Delaware corporation
By:  

/s/ Raymond Chang

Name:   Raymond Chang
Title:   Vice President, General Counsel and Secretary

DNOW CANADA ULC,

an Alberta unlimited liability corporation

By:  

/s/ Raymond Chang

Name:   Raymond Chang
Title:   Vice President, General Counsel and Secretary
NOW CANADA HOLDING ULC, an Alberta unlimited liability company
By:  

/s/ Raymond Chang

Name:   Raymond Chang
Title:   Vice President, General Counsel and Secretary


WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Agent, and as a Lender
By:  

/s/ Ryan C. Tozier

Name:   Ryan C. Tozier
Title:   Vice President
WELLS FARGO CAPITAL FINANCE CORPORATION CANADA, as a Lender
By:  

/s/ Carmela Massari

Name:   Carmela Massari
Title:   Senior Vice President

JPMORGAN CHASE BANK, N.A.,

as Joint Lead Arranger, as Joint Book Runner, as Co-Syndication Agent and as a Lender

By:  

/s/ Michael A. Harvey

Name:   Michael A. Harvey
Title:   Authorized Officer

JPMORGAN CHASE BANK, N.A., TORONTO BRANCH,

as a Lender

By:  

/s/ Jeffrey Coleman

Name:   Jeffrey Coleman
Title:   Executive Director
ROYAL BANK OF CANADA, as Joint Lead Arranger, as Joint Book Runner, as Co-Syndication Agent and as a Lender
By:  

/s/ Michael McKay

Name:   Michael McKay
Title:   Vice President, Corporate Client Group


FIFTH THIRD BANK, NATIONAL ASSOCIATION,

as a Lender

By:  

/s/ Herbert M. Kidd II

Name:   Herbert M. Kidd II
Title:   Senior Vice President

BARCLAYS BANK PLC,

as a Lender

By:  

/s/ Craig Malloy

Name:   Craig Malloy
Title:   Director

U.S. BANK NATIONAL ASSOCIATION,

as a Lender

By:  

/s/ Nykole Hanna

Name:   Nykole Hanna
Title:   Authorized Signatory


EXHIBIT A

Amended Credit Agreement

[See attached]


EXHIBIT A to First Amendment to Credit Agreement and

First Amendment to US Guaranty and Security Agreement

<EXECUTION VERSION>

 

 

 

 

LOGO   

CREDIT AGREEMENT

 

by and among

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

 

  
  

as Administrative Agent,

 

THE LENDERS THAT ARE PARTIES HERETO

 

as the Lenders,

 

NOW INC., as Parent,

 

NOW INC. and DNOW L.P., as US Borrowers,

 

and

 

DNOW CANADA ULC, as Canadian Borrower

 

Dated as of April 30, 2018

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

JPMORGAN CHASE BANK, N.A. and

ROYAL BANK OF CANADA,

 

as Joint Lead Arrangers,

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

JPMORGAN CHASE BANK, N.A. and

ROYAL BANK OF CANADA,

 

as Joint Book Runners, and

 

JPMORGAN CHASE BANK, N.A. and

ROYAL BANK OF CANADA,

 

as Co-Syndication Agents<, and>

 

<FIFTH THIRD BANK,>

 

<as Documentation Agent>

  

 

 

 


TABLE OF CONTENTS

 

         Page  

1.

 

DEFINITIONS AND CONSTRUCTION

     1  

1.1.

 

Definitions

     1  

1.2.

 

Accounting Terms

     <81>93  

1.3.

 

Code; PPSA

     <82>93  

1.4.

 

Construction

     <82>94  

1.5.

 

Time References

     <83>95  

1.6.

 

Schedules and Exhibits

     <83>95  

1.7.

 

Exchange Rates; Currency Equivalents; Applicable Currency

     <84>95  

1.8.

 

Quebec Interpretation

     <84>95  

1.9.

 

<Scottish Interpretation 85>[Reserved]

     96  

1.10.

 

Divisions

     96  

1.11.

 

Rates

     97  

2.

 

LOANS AND TERMS OF PAYMENT

     <85>98  

2.1.

 

Revolving Loans

     <85>98  

2.2.

 

[Reserved]

     <87>100  

2.3.

 

Borrowing Procedures and Settlements

     <87>100  

2.4.

 

Payments; Reductions of Commitments; Prepayments

     <98>111  

2.5.

 

Promise to Pay; Promissory Notes

     <106>119  

2.6.

 

Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations

     <107>120  

2.7.

 

Crediting Payments

     <110>123  

2.8.

 

Designated Account

     <110>123  

2.9.

 

Maintenance of Loan Account; Statements of Obligations

     <110>123  

2.10.

 

Fees

     <111>124  

2.11A

 

US Letters of Credit

     <112>125  

2.11B

 

Canadian Letters of Credit

     <122>135  

<2.11C

 

UK Letters of Credit

     147>  

2.12.

 

Non-Base Rate Option

     <143>157  

2.13.

 

Capital Requirements

     <146>162  

2.14.

 

Incremental Facilities

     <147>163  

2.15.

 

Joint and Several Liability of US Borrowers<, UK Borrowers> and Canadian Borrowers

     <150>166  

2.16.

 

Currencies

     <154>170  

2.17.

 

Interest Act (Canada); Criminal Rate of Interest; Nominal Rate of Interest

     <155>171  

3.

 

CONDITIONS; TERM OF AGREEMENT

     <156>172  

3.1.

 

Conditions Precedent to the Initial Extension of Credit

     <156>172  

 

i


TABLE OF CONTENTS

(continued)

 

         Page  

3.2.

 

Conditions Precedent to all Extensions of Credit

     <156>172  

3.3.

 

Maturity

     <157>173  

3.4.

 

Effect of Maturity

     <157>173  

3.5.

 

Early Termination by Borrowers

     <157>173  

<3.6.

 

Conditions Subsequent

     173 >  

4.

 

REPRESENTATIONS AND WARRANTIES

     <157>173  

4.1.

 

Due Organization and Qualification; Subsidiaries

     <158>174  

4.2.

 

Due Authorization; No Conflict

     <158>174  

4.3.

 

Governmental Consents

     <159>175  

4.4.

 

Binding Obligations; Perfected Liens

     <159>175  

4.5.

 

Title to Assets; No Encumbrances

     <159>175  

4.6.

 

Litigation

     <160>176  

4.7.

 

Compliance with Laws

     <160>176  

4.8.

 

No Material Adverse Effect

     <160>176  

4.9.

 

Solvency

     <160>176  

4.10.

 

Employee Benefits

     <160>176  

4.11.

 

Environmental Condition

     <161>177  

4.12.

 

Complete Disclosure

     <162>178  

4.13.

 

Patriot Act, Etc.

     <162>178  

4.14.

 

Indebtedness

     <163>179  

4.15.

 

Payment of Taxes

     <163>179  

4.16.

 

Margin Stock

     <163>179  

4.17.

 

Governmental Regulation

     <163>179  

4.18.

 

OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws

     <163>179  

4.19.

 

Employee and Labor Matters

     <164>180  

4.20.

 

[Reserved]

     <164>180  

4.21.

 

<Leases 164>[Reserved]

     180  

4.22.

 

Eligible Accounts

     <164>180  

4.23.

 

Eligible Inventory

     <164>181  

4.24.

 

[Reserved]

     <165>181  

4.25.

 

Location of Inventory

     <165>181  

4.26.

 

Inventory Records

     <165>181  

4.27.

 

Hedge Agreements

     <165>181  

4.28.

 

<Material Contracts 165>[Reserved]

     181  

4.29.

 

<Deduction of UK Tax 165>[Reserved]

     181  

 

ii


TABLE OF CONTENTS

(continued)

 

         Page  

4.30.

 

<Centre of Main Interest 165>[Reserved]

     181  

4.31.

 

<Ranking.>[Reserved]

     <166>182  

4.32.

 

Immaterial Subsidiaries

     <166>182  

5.

 

AFFIRMATIVE COVENANTS

     <166>182  

5.1.

 

Financial Statements, Reports, Certificates

     <166>182  

5.2.

 

Reporting

     <166>182  

5.3.

 

Existence

     <166>183  

5.4.

 

Maintenance of Properties

     <167>183  

5.5.

 

Taxes

     <167>183  

5.6.

 

Insurance

     <167>183  

5.7.

 

Inspection

     <168>184  

5.8.

 

Compliance with Laws

     <168>185  

5.9.

 

Environmental

     <169>185  

5.10.

 

Disclosure Updates

     <169>186  

5.11.

 

Formation of Subsidiaries

     <169>186  

5.12.

 

Further Assurances

     <171>187  

5.13.

 

[Reserved]

     <171>188  

5.14.

 

Location of Inventory; Chief Executive Office

     <171>188  

5.15.

 

OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws

     <172>189  

5.16.

 

Bank Products

     <172>189  

5.17.

 

Canadian Compliance

     <172>189  

5.18.

 

Employee Benefits

     <172>189  

<5.19.

 

Centre of Main Interests

     190>  

<5.20.

 

People with Significant Control Regime

     190>  

<5.21.

 

UK Loan Party Cash Management Provisions

     190>  

6.

 

NEGATIVE COVENANTS

     <174>191  

6.1.

 

Indebtedness

     <174>191  

6.2.

 

Liens

     <174>191  

6.3.

 

Restrictions on Fundamental Changes

     <174>191  

6.4.

 

Disposal of Assets

     <175>192  

6.5.

 

Nature of Business

     <175>192  

6.6.

 

Prepayments and Amendments

     <175>192  

6.7.

 

Restricted Payments

     <176>193  

6.8.

 

Accounting Methods

     <177>194  

 

iii


TABLE OF CONTENTS

(continued)

 

         Page  

6.9.

 

Investments

     <177>194  

6.10.

 

Transactions with Affiliates

     <177>194  

6.11.

 

Use of Proceeds

     <178>195  

6.12.

 

Limitation on Issuance of Equity Interests

     <178>195  

6.13.

 

Inventory with Bailees

     <178>195  

6.14.

 

Canadian Employee Benefits

     <178>196  

7.

 

FINANCIAL COVENANTS

     <178>196  

8.

 

EVENTS OF DEFAULT

     <179>196  

8.1.

 

Payments

     <179>196  

8.2.

 

Covenants

     <179>196  

8.3.

 

Judgments

     <180>197  

8.4.

 

Voluntary Bankruptcy, etc

     <180>197  

8.5.

 

Involuntary Bankruptcy, etc

     <180>197  

8.6.

 

Default Under Other Agreements

     <180>197  

8.7.

 

Representations, etc

     <180>198  

8.8.

 

Guaranty

     <180>198  

8.9.

 

Security Documents

     <180>198  

8.10.

 

Loan Documents

     <181>198  

8.11.

 

Change of Control

     <181>198  

<8.12.

 

UK Insolvency

     198 >  

9.

 

RIGHTS AND REMEDIES

     <181>198  

9.1.

 

Rights and Remedies

     <181>198  

9.2.

 

Remedies Cumulative

     <182>199  

10.

 

WAIVERS; INDEMNIFICATION

     <182>200  

10.1.

 

Demand; Protest; etc

     <182>200  

10.2.

 

The Lender Group’ s Liability for Collateral

     <182>200  

10.3.

 

Indemnification

     <182>200  

11.

 

NOTICES

     <183>201  

12.

 

CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION

     <185>202  

13.

 

ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS

     <186>204  

13.1.

 

Assignments and Participations

     <186>204  

13.2.

 

Successors

     <191>208  

 

iv


TABLE OF CONTENTS

(continued)

 

         Page  

14.

 

AMENDMENTS; WAIVERS

     <191>208  

14.1.

 

Amendments and Waivers

     <191>208  

14.2.

 

Replacement of Certain Lenders

     <193>211  

14.3.

 

No Waivers; Cumulative Remedies

     <194>211  

15.

 

AGENT; THE LENDER GROUP

     <194>212  

15.1.

 

Appointment and Authorization of Agent

     <194>212  

15.2.

 

Delegation of Duties

     <195>213  

15.3.

 

Liability of Agent

     <195>213  

15.4.

 

Reliance by Agent

     <196>214  

15.5.

 

Notice of Default or Event of Default

     <196>214  

15.6.

 

Credit Decision

     <197>214  

15.7.

 

Costs and Expenses; Indemnification

     <197>215  

15.8.

 

Agent in Individual Capacity

     <198>216  

15.9.

 

Successor Agent

     <198>216  

15.10.

 

Lender in Individual Capacity

     <199>217  

15.11.

 

Collateral Matters

     <199>217  

15.12.

 

Restrictions on Actions by Lenders; Sharing of Payments

     <201>219  

15.13.

 

Agency for Perfection

     <202>220  

15.14.

 

Payments by Agent to the Lenders

     <202>220  

15.15.

 

Concerning the Collateral and Related Loan Documents

     <202>220  

15.16.

 

Field Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information

     <202>220  

15.17.

 

Several Obligations; No Liability

     <203>221  

15.18.

 

Joint Lead Arrangers, Joint Book Runners, and Co-Syndication Agents<, and Documentation Agents 204>

     222  

15.19.

 

Appointment for the Province of Quebec

     <204>222  

16.

 

WITHHOLDING TAXES

     <205>223  

16.1.

 

Payments

     <205>223  

16.2.

 

Exemptions

     <206>224  

16.3.

 

Reductions

     <208>225  

16.4.

 

Refunds

     <208>226  

<16.5.

 

UK Tax Gross-Up

     227>  

<16.6.

 

UK Tax Indemnity

     229>  

<16.7.

 

UK Tax Credit

     230>  

<16.8.

 

Lender Status Confirmation

     230>  

 

v


TABLE OF CONTENTS

(continued)

 

         Page  

<16.9.

 

Stamp Taxes

     231>  

<16.10.

 

Value Added Tax

     231>  

17.

 

GENERAL PROVISIONS

     <214>232  

17.1.

 

Effectiveness

     <214>232  

17.2.

 

Section Headings

     <214>232  

17.3.

 

Interpretation

     <214>232  

17.4.

 

Severability of Provisions

     <214>232  

17.5.

 

Bank Product Providers

     <214>232  

17.6.

 

Debtor-Creditor Relationship

     <215>233  

17.7.

 

Counterparts; Electronic Execution

     <215>233  

17.8.

 

Revival and Reinstatement of Obligations; Certain Waivers

     <215>234  

17.9.

 

Confidentiality

     <216>234  

17.10.

 

Survival

     <218>236  

17.11.

 

Patriot Act; Due Diligence

     <218>236  

17.12.

 

Integration

     <219>238  

17.13.

 

DNOW as Agent for Borrowers

     <220>238  

17.14.

 

Acknowledgement and Consent to Bail-In of <EEA>Affected Financial Institutions

     <220>239  

17.15.

 

Judgment Currency

     <221>239  

17.16.

 

No Setoff

     <221>240  

17.17.

 

CAM Exchange

     <221>240  

17.18.

 

Acknowledgement Regarding Any Supported QFCs

     241  

17.19.

 

Erroneous Payments

     241  

 

vi


EXHIBITS AND SCHEDULES

Exhibit A-1    Form of Assignment and Acceptance
Exhibit B-1    Form of Borrowing Base Certificate
Exhibit B-2    Form of Bank Product Provider Agreement
Exhibit C-1    Form of Compliance Certificate
Exhibit J-1    Form of Joinder
Exhibit L-1    Form of Non-Base Rate Notice
Exhibit J-1    Form of Joinder
Exhibit P-1    Form of Perfection Certificate
Schedule A-1    Agent’s Canadian Account
<Schedule A-2    Agent’s UK Account>
Schedule A-3    Agent’s US Account
Schedule A-4    Authorized Persons
Schedule C-1    Commitments
Schedule D-1    Canadian Designated Account
<Schedule D-2    UK Designated Account>
Schedule D-3    US Designated Account
Schedule <E-1>E    Existing Letters of Credit
Schedule P-1    Permitted Investments
Schedule P-2    Permitted Liens
Schedule R-1    Real Property Collateral
Schedule 3.1    Conditions Precedent
<Schedule 3.1A    UK Conditions Precedent>
<Schedule 3.6    Conditions Subsequent>
Schedule 4.1(b)    Capitalization of Parent
Schedule 4.1(c)    Capitalization of Parent’s Subsidiaries
Schedule 4.1(d)    Subscriptions, Options, Warrants, Calls
Schedule 4.10(a)    Employee Benefits
Schedule 4.11    Environmental Matters
Schedule 4.14    Permitted Indebtedness
Schedule 4.25    Location of Inventory
<Schedule 4.28    Material Contracts>
Schedule 4.32    Immaterial Subsidiaries
Schedule 5.1    Financial Statements, Reports, Certificates
Schedule 5.2    Collateral Reporting
Schedule 6.5    Nature of Business
Schedule 6.10    Transactions with Affiliates

 

vii


CREDIT AGREEMENT

THIS CREDIT AGREEMENT, is entered into as of April 30, 2018 by and among the lenders identified on the signature pages hereof (each of such lenders, together with its successors and permitted assigns, is referred to hereinafter as a “Lender”, as that term is hereinafter further defined), WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”), WELLS FARGO BANK, NATIONAL ASSOCIATION, JPMORGAN CHASE BANK, N.A. and ROYAL BANK OF CANADA, each as a joint lead arranger (in such capacity, together with its respective successors and assigns in such capacity, the “Joint Lead Arrangers”), WELLS FARGO BANK, NATIONAL ASSOCIATION, JPMORGAN CHASE BANK, N.A. and ROYAL BANK OF CANADA, each as a joint bookrunner (in such capacity, together with its respective successors and assigns in such capacity, the “Joint Book Runners”), JPMORGAN CHASE BANK, N.A. and ROYAL BANK OF CANADA, as co-syndication agents (in such capacity, together with their successors and assigns in such capacity, the “Co-Syndication Agents”), <FIFTH THIRD BANK, as documentation agent (in such capacity, together with its successors and assigns in such capacity, the “Documentation Agent”), >NOW Inc., a Delaware corporation (“Parent”), DNOW L.P., a Texas limited partnership (“DNOW” and, together with Parent and those additional entities that hereafter become parties hereto as US Borrowers, each a “US Borrower” and individually and collectively, jointly and severally, the “US Borrowers”), those additional entities that hereafter become parties hereto as US Borrowers in accordance with the terms hereof by executing the form of Joinder attached hereto as Exhibit J-1, DNOW Canada ULC, an Alberta unlimited liability corporation (“DNOWC”, and, together with those additional entities that hereafter become parties hereto as Canadian Borrowers, each a “Canadian Borrower” and individually and collectively, jointly and severally, the “Canadian Borrowers<), >; the Canadian Borrowers, together with the US Borrowers are each a “Borrower” and individually and collectively, the “Borrowers”), and those additional entities that hereafter become parties hereto as Canadian Borrowers in accordance with the terms hereof by executing the form of Joinder attached hereto as Exhibit J-1<, and those additional entities that hereafter become parties hereto as UK Borrowers in accordance with the terms hereof by executing the form of Joinder attached hereto as Exhibit J-1 (each a “UK Borrower” and individually and collectively, jointly and severally, the “UK Borrowers”; the UK >Borrowers, together with the US Borrowers <and the Canadian Borrowers >are each a “Borrower” and individually and collectively, the “Borrowers”)<.>.

The parties agree as follows:

 

1.

DEFINITIONS AND CONSTRUCTION.

1.1.    Definitions. As used in this Agreement, the following terms shall have the following definitions:

Acceptable Appraisal” means, with respect to an appraisal of Inventory, the most recent appraisal of such property received by Agent (a) from an appraisal company satisfactory to Agent, (b) the scope and methodology of which are satisfactory to Agent, and (c) the results of which are satisfactory to Agent, in each case, in Agent’s Permitted Discretion.

 

1


Account” means an account (as that term is defined in the Code or, to the extent applicable, the PPSA).

Account Debtor” means any Person who is obligated on an Account, chattel paper, or a general intangible.

Account Party” has the meaning specified therefor in Section 2.11A(h) of this Agreement.

Accounting Changes” means changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or successor thereto or any agency with similar functions).

Acquired Indebtedness” means Indebtedness of a Person whose assets or Equity Interests are acquired by a Loan Party or any of its Subsidiaries in a Permitted Acquisition; provided, that such Indebtedness (a) is either purchase money Indebtedness or a Capital Lease with respect to Equipment or mortgage financing with respect to Real Property, (b) was in existence prior to the date of such Permitted Acquisition, and (c) was not incurred in connection with, or in contemplation of, such Permitted Acquisition.

Acquisition” means (a) the purchase or other acquisition by a Person or its Subsidiaries of all or substantially all of the assets of (or all or substantially all of any division or business line of) any other Person, or (b) the purchase or other acquisition (whether by means of a merger, amalgamation, consolidation, or otherwise) by a Person or its Subsidiaries of all of the Equity Interests of any other Person.

Additional Documents” has the meaning specified therefor in Section 5.12 of this Agreement.

Administrative Borrower” has the meaning specified therefor in Section 17.13 of this Agreement.

Administrative Questionnaire” has the meaning specified therefor in Section 13.1(a) of this Agreement.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

Affected Lender” has the meaning specified therefor in Section 2.13(b) of this Agreement.

Affiliate” means (a) as to any Borrower or any Subsidiary thereof, (i) any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person or any Subsidiary of such Person, or (ii) any other

 

2


Person owning beneficially or controlling twenty percent (20%) or more of the equity interests in such Person, and (b) as to any other Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person (which includes, for the avoidance of doubt, in each case, any such Person that becomes an Affiliate after the date hereof). The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or other equity interests, by contract or otherwise. For purposes of the foregoing clause (b), a Person shall be deemed to control another Person if the controlling Person owns ten percent (10%) or more of any class of voting securities (or other ownership interests) of the controlled Person.

Agent” has the meaning specified therefor in the preamble to this Agreement.

Agent’s Applicable Account” means Agent’s <UK Account, Agent’s >US Account and/or Agent’s Canadian Account, as the context requires.

Agent’s Canadian Account” means the Deposit Account identified on Schedule A-1 to this Agreement as Agent’s Canadian Account (or such other Deposit Account that has been designated as such, in writing, by Agent to Administrative Borrower and the Lenders).

<“Agent’s UK Account” means the Deposit Account identified on Schedule A-2 to this Agreement as Agent’s UK Account (or such other Deposit Account that has been designated as such, in writing, by Agent to >Administrative Borrower and the Lenders<).>

Agent’s US Account” means the Deposit Account identified on Schedule A-3 to this Agreement as Agent’s US Account (or such other Deposit Account that has been designated as such, in writing, by Agent to Administrative Borrower and the Lenders).

Agent-Related Persons” means Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.

Agent’s Liens” means the Liens granted by each Loan Party or its Subsidiaries to Agent under the Loan Documents and securing all or a portion of the Obligations.

“Agent-Related Persons” means Agent, together with its Affiliates, officers, directors, employees, attorneys, and agents.

Aggregate Excess Availability” means (a) the Line Cap, minus (b) the sum of Canadian Revolver Usage plus <UK Revolver Usage plus >US Revolver Usage; provided, however, that (i) no more than 50% of Aggregate Excess Availability shall be attributable to Canadian Availability, and <UK >(ii) any availability created pursuant to the application of clause (d) of the definition of Canadian Borrowing Base shall be discounted by 50% for purposes of all calculations of Aggregate Excess Availability.

Agreed Currency” means (a) Dollars, (b) Canadian Dollars, and (c) <Sterling and (d) >such other currency as the Agent and Lenders may agree.

 

3


Agreed L/C Currency” means (a) Dollars, (b) United Arab Emirates Dirham and (c) such other currency as the Agent, Lenders and US Issuing Lenders may agree.

Agreement” means this Credit Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, as amended, and all other applicable laws and regulations or ordinances concerning or relating to bribery, money laundering or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business and includes Canadian Anti-Money Laundering & Anti-Terrorism Legislation.

Anti-Money Laundering Laws” means the applicable laws or regulations in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto and includes Canadian Anti-Money Laundering & Anti-Terrorism Legislation.

Applicable Currency” means Dollars; provided, that <(a) >with respect to Canadian Revolving Loans and other Obligations denominated in Canadian Dollars, Applicable Currency means Canadian Dollars and (b) with respect to <UK Revolving Loans and other Obligations denominated in Sterling, Applicable Currency means Sterling>.

Applicable Margin” means, as of any date of determination and with respect to Base Rate Loans or Non-Base Rate Loans, as applicable, the applicable margin set forth in the following table that corresponds to the Fixed Charge Coverage Ratio <and, where applicable, Leverage Ratio, >of Borrowers for the most recently completed quarter; provided, that for the period from the <Closing>First Amendment Effective Date through and including <September 30, 2018>December 31, 2021, the Applicable Margin shall be set at the margin in the row styled “Level III”; and provided further, that any time an Event of Default has occurred and is continuing, the Applicable Margin may, at the direction of the Required Lenders, be set at the margin in the row styled “Level <IV>III”:

 

Level

  

Fixed Charge Coverage <Ratio

and, where applicable,

Leverage >Ratio

  

Applicable Margin for

Base Rate Loans (the

“Base Rate Margin” )

  

Applicable Margin for Non-

Base Rate Loans (the “Non-

Base Rate Margin” )

I    Fixed Charge Coverage Ratio > <2.50:1.00 and Leverage Ratio < 3.00:>2.25:1.00    0.25 percentage points    1.25 percentage points
II    Fixed Charge Coverage Ratio <> 2.5>< 2.25:1.00 and > 1.50:<1.00 and Leverage Ratio > 3.00:>1.00    0.50 percentage points    1.50 percentage points
III    Fixed Charge Coverage Ratio < <2.50:1.00 and > >1.50:1.00    0.75 percentage points    1.75 percentage points
IV    Fixed Charge Coverage Ratio < 1.50:1.00    1.00 percentage points    2.00 percentage points

 

4


Except as set forth in the foregoing <proviso>provisos, the Applicable Margin shall be based upon the most recent Fixed Charge Coverage Ratio <and, where applicable, Leverage Ratio >calculation, which will be calculated as of the end of each fiscal quarter. Except as set forth in the foregoing proviso, the Applicable Margin shall be re-determined quarterly on the first day of the month following the date of delivery to Agent of the certified calculation of the Fixed Charge Coverage Ratio <and, where applicable, the Leverage Ratio, in each case >pursuant to Section 5.1 of the Agreement; provided, that if Borrower fails to provide such certification when such certification is due, the Applicable Margin shall be set at the margin in the row styled “Level <IV>III” as of the first day of the month following the date on which the certification was required to be delivered until the date on which such certification is delivered (on which date (but not retroactively), without constituting a waiver of any Default or Event of Default occasioned by the failure to timely deliver such certification, the Applicable Margin shall be set at the margin based upon the calculations disclosed by such certification. In the event that the information regarding the Fixed Charge Coverage Ratio <and, where applicable, Leverage Ratio >contained in any certificate delivered pursuant to Section 5.1 of the Agreement is shown to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin actually applied for such Applicable Period, then (i) Parent shall immediately deliver to Agent a correct certificate for such Applicable Period, (ii) the Applicable Margin shall be determined as if the correct Applicable Margin (as set forth in the table above) were applicable for such Applicable Period, and (iii) Borrowers shall immediately deliver to Agent full payment in respect of the accrued additional interest as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by Agent to the affected Obligations.

Applicable Unused Line Fee Percentage” means, as of any date of determination, the applicable percentage set forth in the following table that corresponds to the Average Revolver Usage of Borrowers for the most recently completed quarter as determined by Agent in its Permitted Discretion; provided, that for the period from the <Closing>First Amendment Effective Date through and including <September 30, 2018>December 31, 2021, the Applicable Unused Line Fee Percentage shall be set at the rate in the row styled “Level II”; and provided further, that any time an Event of Default has occurred and is continuing, the Applicable Unused Line Fee Percentage shall be set at the margin in the row styled “Level II”:

 

Level

  

Average Revolver Usage

  

Applicable Unused Line

Fee Percentage

I    > <40>35% of the Maximum Revolver Amount    0.250 percentage points
II    £ <40>35% of the Maximum Revolver Amount    0.375 percentage points

The Applicable Unused Line Fee Percentage shall be re-determined on the first date of each quarter by Agent.

 

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Application Event” means the occurrence and continuation of (a) a failure by Borrowers to repay all of the Obligations in full on the Maturity Date, or (b) an Event of Default and the election by Agent or the Required Lenders to require that payments and proceeds of Collateral be applied pursuant to Section 2.4(b)(ii) of this Agreement.

Assignee” has the meaning specified therefor in Section 13.1(a) of this Agreement.

Assignment and Acceptance” means an Assignment and Acceptance Agreement substantially in the form of Exhibit A-1 to this Agreement.

Authorized Person” means any one of the individuals identified as an officer of a Borrower on Schedule A-4 to this Agreement, or any other individual identified by Administrative Borrower as an authorized person and authenticated through Agent’s electronic platform or portal in accordance with its procedures for such authentication.

Available Increase Amount” means, as of any date of determination, an amount equal to the result of (a) $250,000,000, minus (b) the aggregate principal amount of Increases to the Revolver Commitments previously made pursuant to Section 2.14 of this Agreement.

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.12(d)(iii)(D); provided, that if the then-current Benchmark is based upon SOFR Average, such Benchmark shall be deemed to not have any Available Tenors.

Average Canadian Revolver Usage” means, with respect to any period, the sum of the aggregate amount of Canadian Revolver Usage for each day in such period (calculated as of the end of each respective day) divided by the number of days in such period.

Average Revolver Usage” means, with respect to any period, the sum of the Average Canadian Revolver Usage plus the Average <UK Revolver Usage plus the Average >US Revolver Usage.

<“Average UK Revolver Usage>” means, with respect to any <period, the sum of the aggregate amount of UK Revolver Usage for each day in such period (calculated as of the end of each respective day) divided by the number of days in such period.>

Average US Revolver Usage” means, with respect to any period, the sum of the aggregate amount of US Revolver Usage for each day in such period (calculated as of the end of each respective day) divided by the number of days in such period.

 

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Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable <EEA >Resolution Authority in respect of any liability of an <EEA>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, regulation, rule 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 Product Agreements” means the US Bank Product Agreements<, the Canadian Bank Product Agreements> and/or the <UK>Canadian Bank Product Agreements, as the context requires.

Bank Product Collateralization” means, with respect to the US Bank Product Obligations<,> or the Canadian Bank Product <Obligations or the UK Bank Product >Obligations, as applicable, providing cash collateral (pursuant to documentation reasonably satisfactory to Agent) in the Applicable Currency to be held by Agent for the benefit of the Bank Product Providers (other than the Hedge Providers) in an amount determined by Agent as sufficient to satisfy the reasonably estimated credit exposure, operational risk or processing risk with respect to the then existing Bank Product Obligations (other than Hedge Obligations).

Bank Product Obligations” means the US Bank Product Obligations<, the Canadian Bank Product Obligations> and/or the <UK>Canadian Bank Product Obligations, as the context requires.

Bank Product Provider” means any Lender or any of its Affiliates, including each of the foregoing in its capacity, if applicable, as a Hedge Provider; provided, that no such Person (other than Wells Fargo or its Affiliates) shall constitute a Bank Product Provider with respect to a Bank Product unless and until Agent receives a Bank Product Provider Agreement from such Person (a) on or prior to the Closing Date (or such later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided on or prior to the Closing Date, or (b) on or prior to the date that is 10 days after the provision of such Bank Product to a Loan Party or its Subsidiaries (or such later date as Agent shall agree to in writing in its sole discretion) with respect to Bank Products provided after the Closing Date; provided further, that if, at any time, a Lender ceases to be a Lender under this Agreement (prior to the payment in full of the Obligations), then, from and after the date on which it so ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Bank Product Providers and the obligations with respect to Bank Products provided by such former Lender or any of its Affiliates shall no longer constitute Bank Product Obligations.

Bank Product Provider Agreement” means an agreement in substantially the form attached hereto as Exhibit B-2 to this Agreement, in form and substance satisfactory to Agent, duly executed by the applicable Bank Product Provider, the applicable Loan Parties, and Agent.

 

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Bank Product Reserves” means the US Bank Product Reserves<, the Canadian Bank Product Reserves> and/or the <UK>Canadian Bank Product Reserves, as the context requires.

Bank Products” means US Bank Products<, Canadian Bank Products> and/or <UK>Canadian Bank Products, as the context requires.

Bankruptcy Code” means title 11 of the United States Code, as in effect from time to time.

Base Rate” means the US Base Rate; provided, that <(a) >with respect to Canadian Obligations denominated in Canadian Dollars, Base Rate means the Canadian Base Rate< and (b) with respect to UK Obligations denominated in Sterling, Base Rate means the UK Floating Rate>.

Base Rate Loan” means each portion of the Revolving Loans that bears interest at a rate determined by reference to the applicable Base Rate.

Base Rate Margin” has the meaning set forth in the definition of Applicable Margin.

“Benchmark” means, initially, USD LIBOR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to USD LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.12(d)(iii)(A).

“Benchmark Replacement” means,

(a) with respect to any Benchmark Transition Event or Early Opt-in Election, the first alternative set forth in the order below that can be determined by Agent for the applicable Benchmark Replacement Date:

 

  (i)

for any Available Tenor, the sum of: (A) Term SOFR and (B) the related Benchmark Replacement Adjustment;

 

  (ii)

the sum of: (A) SOFR Average and (B) the related Benchmark Replacement Adjustment;

 

  (iii)

for any Available Tenor (if applicable), the sum of: (A) the alternate benchmark rate that has been selected by Agent and Administrative Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor (if applicable) giving due consideration to (1) any selection or recommendation of a replacement benchmark rate or

 

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  the mechanism for determining such a rate by the Relevant Governmental Body or (2) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (B) the related Benchmark Replacement Adjustment; or

(b) with respect to any Term SOFR Transition Event, for any Available Tenor (if applicable), the sum of (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment;

provided that, (x) in the case of clause (a)(i), if Agent decides that Term SOFR is not administratively feasible for Agent, then Term SOFR will be deemed unable to be determined for purposes of this definition and (y) in the case of clause (a)(i) or clause (b) of this definition, the applicable Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by Agent in its discretion. If the Benchmark Replacement as determined pursuant to clause (a)(i), (a)(ii) or (a)(iii) or clause (b) of this definition would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor (if applicable) for any setting of such Unadjusted Benchmark Replacement:

(a) for purposes of clauses (a)(i) and (b) of the definition of “Benchmark Replacement,” an amount equal to (A) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, (B) 0.26161% (26.161 basis points) for an Available Tenor of three- months’ duration and (C) 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration;

(b) for purposes of clause (a)(ii) of the definition of “Benchmark Replacement,” an amount equal to 0.11448% (11.448 basis points); and

(c) for purposes of clause (a)(iii) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Agent and Administrative Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor (if applicable) of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Available Tenor (if applicable) of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.

 

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“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that Agent decides (in consultation with Administrative Borrower) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent decides that adoption of any portion of such market practice is not administratively feasible or if Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Agent decides (in consultation with Administrative Borrower) is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors (if applicable) of such Benchmark (or such component thereof);

(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein;

(c) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after Agent has provided the Term SOFR Notice to the Lenders and Administrative Borrower pursuant to Section 2.12(d)(iii)(A)(2); or

(d) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as Agent has not received, by 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

For the avoidance of doubt, (A) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (B) if the then-current Benchmark has any Available Tenors, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

10


“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:

(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors (if applicable)of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor (if applicable) of such Benchmark (or such component thereof);

(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors (if applicable) of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor (if applicable) of such Benchmark (or such component thereof); or

(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors (if applicable) of such Benchmark (or such component thereof) are no longer representative.

For the avoidance of doubt, if the then-current Benchmark has any Available Tenors, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12(d)(iii) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12(d)(iii).

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

 

11


“BHC Act Affiliate” of a Person means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such Person.

Blocked Account Agreement” has the meaning assigned to such term in the Canadian Security Agreement.

<“Blocked Account Control Agreement>” has the meaning assigned to <such term in any UK Security Document.>

Board of Directors” means, as to any Person, the board of directors (or comparable managers) of such Person, or any committee thereof duly authorized to act on behalf of the board of directors (or comparable managers).

Board of Governors” means the Board of Governors of the Federal Reserve System of the United States (or any successor).

Borrower” and “Borrowers” have the respective meanings specified therefor in the preamble to this Agreement.

Borrower Materials” has the meaning specified therefor in Section 17.9(c) of this Agreement.

Borrowing” means a US Borrowing<, a Canadian Borrowing> and/or a <UK>Canadian Borrowing, as the context requires.

Borrowing Base Certificate” means a certificate substantially in the form of Exhibit B-1.

<“Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the relevant UK Borrower, which:>

(a) <where it relates to a Treaty Lender that is a Lender on the Closing Date, contains the scheme reference number and jurisdiction of tax residence of that Lender; and>

(i) <where the applicable UK Borrower is a Borrower as at the date on which that Treaty Lender becomes a party to this Agreement as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or>

(ii) <where the UK Borrower is not a Borrower as at the date on which that Treaty Lender becomes a party to this Agreement as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that UK Borrower becomes a Borrower; or>

(b) <where it relates to a Treaty Lender that is not a Lender on the Closing Date, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the Assignment and Acceptance which it executes on becoming a party to this Agreement as a Lender; and>

 

12


(i) <where the applicable UK Borrower is a Borrower as at the date on which that Treaty Lender becomes a party to this Agreement as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or>

(ii) <where the UK Borrower is not a Borrower as at the date on which that Treaty Lender becomes a party to this Agreement as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that UK Borrower becomes a Borrower.>

Business Day” means any day that is not a Saturday, Sunday, or other day on which banks are authorized or required to close in the state of New York or Georgia, except that (a) if a determination of a Business Day shall relate to a Non-Base Rate Loan, the term “Business Day” also shall exclude any day on which banks are closed for dealings in Dollar deposits in the London interbank market<,> and (b) if a determination of a Business Day shall relate to a Canadian Revolving Loan or Canadian Letter of Credit (including a request therefor), the term “Business Day” also shall exclude any day on which banks are authorized or required to close in Toronto, Ontario, or Calgary, Alberta,  Canada< and (c) if a determination of a Business Day shall relate to a UK Revolving Loan or UK Letter of Credit (including a request therefor), the term “Business Day” also shall exclude any day on which banks in the United Kingdom are closed for the purposes of making wire transfers or any other electronic transfer of funds.>.

CAM Exchange” means the exchange of the Lenders’ interests provided for in Section 17.17.

CAM Exchange Date” means the date on which any event referred to in Section 8.4 or Section 8.5 <or Section 8.12 >shall occur in respect of any Borrower, the date on which the Loans are accelerated in accordance with Section 9.1, or the Maturity Date (unless the Obligations are paid in full on the Maturity Date).

CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of which (a) the numerator shall be the aggregate Dollar Equivalent of the Obligations owed to such Lender (whether or not at the time due and payable) and such Lender’s participations in undrawn amounts of Letters of Credit immediately prior to the CAM Exchange Date and (b) the denominator shall be the aggregate Dollar Equivalent (as so determined) of the Obligations owed to all the Lenders (whether or not at the time due and payable) and the aggregate undrawn amount of all Letters of Credit immediately prior to the CAM Exchange Date.

Canadian Availability” means, as of any date of determination, the Dollar Equivalent amount that Canadian Borrowers are entitled to borrow as Canadian Revolving Loans under Section 2.1(b) of the Agreement (after giving effect to the then outstanding Canadian Revolver Usage<, UK Revolver Usage >and US Revolver Usage).

Canadian Anti-Money Laundering & Anti-Terrorism Legislation” means Part II.1 of the Criminal Code, R.S.C. 1985, c. C-46, The Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17 and the United Nations Act, R.S.C. 1985, c.U-2 or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including, without limitation, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations Al-Qaida and Taliban Regulations promulgated under the United Nations Act.

 

13


“Canadian Availability” means, as of any date of determination, the Dollar Equivalent amount that Canadian Borrowers are entitled to borrow as Canadian Revolving Loans under Section 2.1(b) of the Agreement (after giving effect to the then outstanding Canadian Revolver Usage and US Revolver Usage).

Canadian Bank Product” means any one or more of the following financial products or accommodations extended to a Canadian Loan Party by a Bank Product Provider: (a) credit cards (including commercial credit cards (including so-called “purchase cards”, “procurement cards” or “P-cards”)), (b) credit card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.

Canadian Bank Product Agreements” means those agreements entered into from time to time by a Canadian Loan Party with a Bank Product Provider in connection with the obtaining of any of the Canadian Bank Products.

Canadian Bank Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by Canadian Loan Parties to any Bank Product Provider pursuant to or evidenced by a Canadian Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all Canadian Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Canadian Bank Products provided by such Bank Product Provider to Canadian Loan Parties; provided, in order for any item described in clauses (a), (b), or (c) above, as applicable, to constitute “Canadian Bank Product Obligations”, if the applicable Bank Product Provider is any Person other than Wells Fargo or its Affiliates, then the applicable Canadian Bank Product must have been provided on or after the Closing Date and Agent shall have received a Bank Product Provider Agreement within 10 days after the date of the provision of the applicable Canadian Bank Product to a Canadian Loan Party.

Canadian Bank Product Reserves” means, as of any date of determination, those reserves, without duplication of any other reserve, that Agent deems necessary or appropriate in its Permitted Discretion to establish (based upon the Bank Product Providers’ reasonable determination of the liabilities and obligations of Canadian Loan Parties in respect of Canadian Bank Product Obligations) in respect of Canadian Bank Products then provided or outstanding.

Canadian Base Rate” means, for any day, a rate per annum equal to the greater of (a) the CDOR Rate existing on such day (which rate shall be calculated based upon an Interest Period of 1 month), plus 1 percentage point, and (b) the “prime rate” for Canadian Dollar commercial loans made in Canada as reported by Thomson Reuters under Reuters Instrument Code <CAPRIME=> on the “CA Prime Rate (Domestic Interest Rate) – Composite Display” page (or any successor page or such other commercially available service or source (including the Canadian Dollar “prime rate” announced by a Schedule I bank under the Bank Act (Canada)) as the Agent may designate from time to time). Each determination of the Canadian Base Rate shall be made by the Agent and shall be conclusive in the absence of manifest error.

 

14


Canadian Benefit Plans” means any plan, fund, program, or policy, whether oral or written, formal or informal, funded or unfunded, insured or uninsured, providing material employee benefits, including medical, hospital care, dental, sickness, accident, disability, life insurance, retirement or savings benefits, under which a Canadian Loan Party or any other Subsidiary of any Borrower organized under the laws of Canada or any territory or province thereof has any liability with respect to any employee or former employee based in Canada. For the avoidance of doubt, “Canadian Benefit Plan” excludes any Canadian Pension Plan.

Canadian Borrowers” has the meaning specified therefor in the preamble to the Agreement.

Canadian Borrowing” means a borrowing consisting of Canadian Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by Canadian Swing Lender in the case of a Canadian Swing Loan, or by Agent in the case of a Canadian Extraordinary Advance.

Canadian Borrowing Base” means, as of any date of determination, the Dollar Equivalent amount of:

(a) 90% of the amount of Eligible Accounts of each Canadian Loan Party owing by Account Debtors that are rated (or whose parent is rated) Baa3 or higher from Moody’s or BBB- or higher from S&P, less the amount, if any, of the Canadian Dilution Reserve attributable to such Eligible Accounts, plus

(b) 85% of the amount of Eligible Accounts of each Canadian Loan Party owing by Account Debtors other than those described in the foregoing clause (a), less the amount, if any, of the Canadian Dilution Reserve attributable to such Eligible Accounts, plus

(c) the lesser of (i) the product of 70% multiplied by the value (calculated at the lower of cost or market on a basis consistent with Canadian Loan Parties’ historical accounting practices) of Eligible Finished Goods Inventory of each Canadian Loan Party at such time, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent Acceptable Appraisal of Inventory, multiplied by the value (calculated at the lower of cost or market on a basis consistent with Canadian Loan Parties’ historical accounting practices) of Eligible Finished Goods Inventory of each Canadian Loan Party (such determination may be made as to different categories of Eligible Finished Goods Inventory based upon the Net Recovery Percentage applicable to such categories) at such time, plus

(d) at the option of Administrative Borrower, 100% of the amount of unrestricted cash of the Canadian Loan Parties held in one or more deposit accounts maintained in Canada, and in which Agent has a first priority perfected security interest and which is subject to a Control Agreement, as such amount shall be updated by Administrative Borrower between Borrowing Base Certificate delivery dates from time to time following request therefor by Agent, in Agent’s Permitted Discretion, including as frequently as daily, which updates shall include detailed account balance information and reasonable supporting documentation, plus

 

15


(e) (d) the amount by which the US Borrowing Base at such time exceeds the sum of US Revolver Usage< plus UK Revolver Usage predicated on clause (d) of the definition of UK Borrowing Base at such time>, minus

(f) (e) without duplication, the aggregate amount of Receivables Reserves, Bank Product Reserves, Inventory Reserves, Canadian Priority Payables Reserves and other Reserves, in each case if any, established by Agent from time to time under Section 2.1(e) of this Agreement.

Canadian Copyright Security Agreement” has the meaning specified therefor in the Canadian Security Agreement.

Canadian Defined Benefit Plan” means any Canadian Pension Plan which contains a “defined benefit provision” as defined in subsection 147.1(1) of the Income Tax Act (Canada).

Canadian Designated Account” means the Canadian Deposit Account of DNOWC identified on Schedule D-1 to the Agreement (or such other Deposit Account of a Canadian Borrower located at Canadian Designated Account Bank that has been designated as such, in writing, by a Canadian Borrower to Agent).

Canadian Designated Account Bank” has the meaning specified therefor in Schedule D-1 to the Agreement (or such other bank that is located within Canada that has been designated as such, in writing, by a Canadian Borrower to Agent).

Canadian 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 (a) the Dollar Equivalent amount of bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to Canadian Borrowers’ Accounts during such period, by (b) the Dollar Equivalent amount of Canadian Borrowers’ billings with respect to Accounts during such period.

Canadian Dilution Reserve” means, as of any date of determination, an amount, without duplication of any other reserve, sufficient to reduce the advance rate against Eligible Accounts of Canadian Loan Parties by 1 percentage point for each percentage point by which Canadian Dilution is in excess of 5%.

<“Canadian Dollar Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in Canadian Dollars as reasonably determined by Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or such other date as reasonably determined by Agent) for the purchase of Canadian Dollars with Dollars.>

 

16


Canadian Dollars” or “Cdn$” means the lawful currency of Canada, as in effect from time to time.

Canadian Extraordinary Advances” has the meaning specified therefor in Section 2.3(d)(iii) of the Agreement.

Canadian Guarantor” means (a) each Subsidiary of Parent (other than an Immaterial Subsidiary) organized under the laws of Canada, or any province or territory thereof, that is or becomes a guarantor of all or any part of the Foreign Obligations and (b) each other Person that guaranties all or a part of the Foreign Obligations pursuant to the Canadian Security Agreement.

Canadian Hedge Obligations” means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of any Canadian Loan Party arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.

Canadian Issuing Lender” means Wells Fargo, WF Canada and up to three other Lenders designated in writing to, and consented to by, the Agent (such consent not to be unreasonably withheld, conditioned or delayed) by the Administrative Borrower that agree, in such Lender’s sole discretion, to become a Canadian Issuing Lender for the purpose of issuing Canadian Letters of Credit or, if WF Canada is the Canadian Issuing Lender, issuing Canadian Reimbursement Undertakings pursuant to Section 2.11B of the Agreement and Canadian Issuing Lender shall be a Lender. For the avoidance of doubt, no Canadian Issuing Lender other than WF Canada may issue a Canadian Reimbursement Undertaking without Agent’s prior written consent.

Canadian Letter of Credit” means a letter of credit (as that term is defined in the Code) issued by Canadian Issuing Lender or Canadian Underlying Issuer for the account of Canadian Borrower.

Canadian Letter of Credit Disbursement” means a payment made by Canadian Issuing Lender pursuant to a Canadian Letter of Credit or a Canadian Reimbursement Undertaking.

Canadian Letter of Credit Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the Canadian Letter of Credit Usage on such date (including such Lender’s Pro Rata Share of Canadian Reimbursement Undertakings on such date).

Canadian Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn amount of all outstanding Canadian Letters of Credit.

Canadian Loan Account” has the meaning specified therefor in Section 2.9 of the Agreement.

 

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Canadian Loan Party” means any Canadian Borrower or any Canadian Guarantor organized under the laws of Canada or any province or territory thereof.

Canadian Maximum Revolver Amount” means $<100,000,000>50,000,000, decreased by the amount of reductions in the Canadian Revolver Commitments made in accordance with Section 2.4(c) of the Agreement.

Canadian Obligations” means (a) all loans (including Canadian Revolving Loans (inclusive of Canadian Extraordinary Advances and Canadian Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), premiums, liabilities (including all amounts charged to the Canadian Loan Account pursuant to the Agreement), obligations (including indemnification obligations) of any Canadian Loan Party, fees (including the fees provided for in the Fee Letter) of any Canadian Loan Party, Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding) of any Canadian Loan Party, guaranties of any Canadian Loan Party, and all covenants and duties of any other kind and description owing by any Canadian Loan Party arising out of, under, pursuant to, in connection with, or evidenced by the Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any Canadian Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, (b) all debts, liabilities, or obligations (including reimbursement and indemnification obligations, irrespective of whether contingent) owing by any Canadian Borrower or any other Canadian Loan Party to Canadian Issuing Lender now or hereafter arising from or in respect of a Canadian Letters of Credit, and (c) all Canadian Bank Product Obligations; provided, that Canadian Obligations shall not include Excluded Swap Obligations. Without limiting the generality of the foregoing, the Canadian Obligations under the Loan Documents include the obligation to pay (i) the principal of the Canadian Revolving Loans, (ii) interest accrued on the Canadian Revolving Loans, (iii) the amount necessary to reimburse Canadian Issuing Lender for amounts paid or payable pursuant to Canadian Letters of Credit, (iv) Letter of Credit commissions, charges, expenses, and fees, in each case in respect of Canadian Letters of Credit (v) Lender Group Expenses of any Canadian Loan Party, (vi) fees payable by any Canadian Loan Party under the Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any Canadian Loan Party under any Loan Document (excluding Excluded Swap Obligations). Any reference in the Agreement or in the Loan Documents to the Canadian Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.

Canadian Overadvance” means, as of any date of determination, that the Canadian Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11B.

 

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Canadian Patent Security Agreement” has the meaning specified therefor in the Canadian Security Agreement.

Canadian Pension Plans” means each pension plan that is a “registered pension plan” (as defined in the Income Tax Act (Canada)) or that is required to be registered under, or is subject to, the Employment Pension Plans Act (Alberta) or other Canadian federal or provincial law with respect to pension benefit standards and that is maintained or contributed to, or to which there is or may be an obligation to contribute by a Loan Party or a Subsidiary thereof, for its employees or former employees, but does not include the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively.

Canadian Priority Payables Reserves” means reserves (determined from time to time by Agent in its Permitted Discretion) for (but without duplication of any other reserve): (a) the amount past due and owing by any Canadian Loan Party, or the accrued amount for which such Canadian Loan Party has an obligation to remit, to a Governmental Authority or other Person pursuant to any applicable law, rule or regulation, in respect of (i) goods and services taxes, harmonized sales taxes, other sales taxes, employee income taxes, municipal taxes and other taxes payable or to be remitted or withheld; (ii) workers’ compensation or employment insurance; (iii) federal Canada Pension Plan and Quebec Pension Plan contributions; (iv) vacation or holiday pay; and (v) other like charges and demands, in each case, to the extent that any Governmental Authority or other Person may claim a Lien, trust, deemed trust or other claim ranking or capable of ranking in priority to or pari passu with one or more of the Liens granted in the Loan Documents; and (b) the aggregate amount of any other liabilities of any Canadian Loan Party (i) in respect of which a Lien, trust or deemed trust has been or may be imposed on any Collateral to provide for payment, or (ii) in respect of unpaid or unremitted pension plan contributions, including normal cost contributions, special payments and, without duplication, amounts representing any unfunded liability, solvency deficiency or wind-up deficiency whether or not due with respect to any Canadian Pension Plan, or (iii) which are secured by a Lien, right or claim on any Collateral (other than Permitted Liens that do not have priority over Agent’s Liens); in each case, pursuant to any applicable law, rule or regulation and which such Lien, trust, deemed trust, right or claim ranks or, in the Permitted Discretion of Agent, is capable of ranking in priority to or pari passu with one or more of the Liens granted in the Loan Documents (such as claims by employees for unpaid wages and other amounts payable under the Wage Earner Protection Act (Canada)); in each case net of the aggregate amount of all restricted cash held or set aside by such Canadian Loan Party for the payment of such obligations.

Canadian Protective Advances” has the meaning specified therefor in Section 2.3(d)(i) of the Agreement.

Canadian Reimbursement Undertaking” has the meaning specified therefor in Section 2.11B(a) of the Agreement.

Canadian Revolver Commitment” means, with respect to each Revolving Lender, its Canadian Revolver Commitment, and, with respect to all Revolving Lenders, their Canadian Revolver Commitments, in each case as set forth beside such Revolving Lender’s name

 

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under the applicable heading on Schedule C-1 to the Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving Lender under the Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement.

Canadian Revolver Usage” means, as of any date of determination, the sum of (a) the amount of outstanding Canadian Revolving Loans (inclusive of Canadian Swing Loans and Canadian Protective Advances), plus (b) the amount of the Canadian Letter of Credit Usage.

Canadian Revolving Loan Exposure” means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the Canadian Revolver Commitments, the amount of such Lender’s Canadian Revolver Commitment, and (b) after the termination of the Canadian Revolver Commitments, the aggregate outstanding principal amount of the Canadian Revolving Loans of such Lender.

Canadian Revolving Loans” has the meaning specified therefor in Section 2.1(b) of the Agreement.

Canadian Security Agreement” means a Guarantee and Security Agreement dated as of even date with the Agreement, by and among each Canadian Loan Party and Agent.

Canadian Security Documents” means the Canadian Security Agreement and any other Loan Document that grants or purports to grant a Lien on any of the assets or interests, and the proceeds thereof, of any Canadian Loan Party.

Canadian Subagent” has the meaning specified therefor in Section 15.2 of the Agreement.

Canadian Swing Lender” means WF Canada or any other Lender that, at the request of a Canadian Borrower and with the consent of Agent agrees, in such Lender’s sole discretion, to become the Canadian Swing Lender under Section 2.3(b) of the Agreement.

Canadian Swing Loan” has the meaning specified therefor in Section 2.3(b) of the Agreement.

Canadian Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the Canadian Swing Loans on such date.

Canadian Trademark Security Agreement” has the meaning specified therefor in the Canadian Security Agreement.

Canadian Underlying Issuer” means The Toronto-Dominion Bank or one of its Affiliates or such other Person that is acceptable to Agent in its Permitted Discretion.

Capital Expenditures” means, with respect to any Person for any period, the amount of all expenditures by such Person and its Subsidiaries during such period that are capital expenditures as determined in accordance with GAAP, whether such expenditures are paid in cash or financed, but excluding, without duplication (a) with respect to the purchase price of

 

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assets that are purchased substantially contemporaneously with the trade-in of existing assets during such period, the amount that the gross amount of such purchase price is reduced by the credit granted by the seller of such assets for the assets being traded in at such time, and (c) expenditures made during such period to consummate one or more Permitted Acquisitions.

“Capital Lease” means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.

Capitalized Lease Obligation” means that portion of the obligations under a Capital Lease that is required to be capitalized in accordance with GAAP.

Capital Lease” means a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.

Cash Dominion Period” has the meaning ascribed thereto in the US Security Agreement.

Cash Equivalents” means (a) Domestic Cash Equivalents; and (b) Foreign Cash Equivalents.

Cash Management Services” means any cash management or related services

including treasury, depository, return items, overdraft, controlled disbursement, merchant store value cards, e-payables services, electronic funds transfer, interstate depository network, automatic clearing house transfer (including the Automated Clearing House processing of electronic funds transfers through the direct Federal Reserve Fedline system) and other customary cash management arrangements.

CDOR Rate” means the average rate per annum as reported on the <Reuters>Refinitiv Screen Canadian Dollar Offered Rate (“CDOR”) Page (or any successor page or such other page or commercially available service displaying Canadian interbank bid rates for Canadian Dollar bankers’ acceptances as the Agent may designate from time to time, or if no such substitute service is available, the rate quoted by a Schedule I bank under the Bank Act (Canada) selected by the Agent at which such bank is offering to purchase Canadian Dollar bankers’ acceptances) as of 10:00 a.m. Eastern (Toronto) time on the date of commencement of the requested Interest Period, for a term, and in an amount, comparable to the Interest Period and the amount of the applicable Non-Base Rate Loan requested (whether as an initial Non-Base Rate Loan or as a continuation of a Non-Base Rate Loan or as a conversion of a Canadian Base Rate Loan to a Non-Base Rate Loan) by Canadian Borrowers in accordance with this Agreement (and, if any such reported rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero). Each determination of the CDOR Rate shall be made by the Agent and shall be conclusive in the absence of manifest error.

CFC” means a controlled foreign corporation (as that term is defined in the IRC) in which any Loan Party is a “United States shareholder” within the meaning of Section 951(b) of the IRC.

 

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Change of Control” means that:

(a) the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934), directly or indirectly, of securities of Parent (or other securities convertible into such securities) representing 35% or more of the combined voting power of all outstanding securities of Parent entitled to vote in the election of directors, other than securities having such power only by reason of the happening of a contingency, or

(b) except as otherwise expressly permitted under this Agreement with respect to Guarantors, Parent fails to own and control, directly or indirectly, 100% of the Equity Interests of each other Loan Party.

Change in Law” means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial ruling, decree, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, decree, judgment or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation, guideline or treaty, or (c) the making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided, that notwithstanding anything in this Agreement to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.

“Change of Control” means that:

(a) the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934), directly or indirectly, of securities of Parent (or other securities convertible into such securities) representing 35% or more of the combined voting power of all outstanding securities of Parent entitled to vote in the election of directors, other than securities having such power only by reason of the happening of a contingency, or

(b) except as otherwise expressly permitted under this Agreement with respect to Guarantors, Parent fails to own and control, directly or indirectly, 100% of the Equity Interests of each other Loan Party.

Closing Date” means the date of the making of the initial Revolving Loan (or other extension of credit) under this Agreement.

Co-Syndication Agents” has the meaning set forth in the preamble to this Agreement.

 

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Code” means the New York Uniform Commercial Code, as in effect from time to time.

Collateral” means all assets and interests in assets and proceeds thereof now owned or hereafter acquired by any Loan Party or its Subsidiaries in or upon which a Lien is granted by such Person in favor of Agent or the Lenders under any of the Loan Documents; provided that Collateral shall not include Excluded Collateral.

Collateral Access Agreement” means a landlord waiver, bailee letter, or acknowledgement agreement of any lessor, warehouseman, processor, consignee, customer or other Person in possession of, having a Lien upon, or having rights or interests in any Loan Party’s or its Subsidiaries’ books and records, Equipment, or Inventory, in each case, in form and substance <reasonably >satisfactory to Agent in its Permitted Discretion.

<“Collection Account” means with respect to the UK Loan Parties, each deposit account maintained by such UK Loan Party into which all cash, checks or other similar payments relating to or constituting payments made in respect of Accounts will be deposited. >

Collections” means, all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, cash proceeds of asset sales, rental proceeds and tax refunds).

Commitment” means, with respect to each Lender, its Revolver Commitment and, with respect to all Lenders, their Revolver Commitments, in each case as such Dollar amounts are set forth beside such Lender’s name under the applicable heading on Schedule C-1 to this Agreement or in the Assignment and Acceptance pursuant to which such Lender became a Lender under this Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of this Agreement.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Competitor” means those Persons who are direct competitors of the Borrowers if, at the time of a proposed assignment, Agent and the assigning Lender have actual knowledge (which knowledge can be obtained by a written notification by the Borrowers) that such Person is a direct competitor of Borrowers; provided, that “Competitors” shall exclude any Person that Administrative Borrower has designated as no longer being a “Competitor” by written notice delivered to Agent from time to time; provided further, that in connection with any assignment or participation, the Assignee or Participant with respect to such proposed assignment or participation that is an investment bank, a commercial bank, a finance company, a fund, or other Person which merely has an economic interest in any such direct competitor, and is not itself such a direct competitor of Borrowers, shall not be deemed to be a Competitor for the purposes of this definition.

Compliance Certificate” means a certificate substantially in the form of Exhibit C-1 to this Agreement delivered by the chief financial officer or treasurer of Parent to Agent.

 

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Confidential Information” has the meaning specified therefor in Section 17.9(a) of this Agreement.

Control Agreement” means a control agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by a Loan Party or one of its Subsidiaries, Agent, and the applicable securities intermediary (with respect to a Securities Account) or bank (with respect to a Deposit Account) and includes, without limitation, any Blocked Account Agreement< and any Blocked Account Control Agreement>.

<“Contribution Notice” means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004 (UK).>

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

Covenant Testing Period” means a period (a) commencing on the last day of the fiscal quarter of Parent most recently ended prior to a Covenant Trigger Event for which Borrowers are required to deliver to Agent quarterly or annual financial statements pursuant to Schedule 5.1 to this Agreement, and (b) continuing through and including the first day after such Covenant Trigger Event that Aggregate Excess Availability has equaled or exceeded the greater of (i) <12.5>10.0 % of the Line Cap, and (ii) $<60,000,000>40,000,000 for 30 consecutive days.

Covenant Trigger Event” means if at any time Aggregate Excess Availability is less than the greater of (i) <12.5>10.0% of the Line Cap, and (ii) $<60,000,000>40,000,000.

“Covered Entity” means any of the following:

(a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

(b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

(c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

<CTA” means the Corporation Tax Act 2009 (UK)>Covered Party” has the meaning specified therefor in Section 17.18 of this Agreement.

Default” means an event, condition, or default that, with the giving of notice, the passage of time, or both, would be an Event of Default.

“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.

Defaulting Lender” means any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded

 

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hereunder unless such Lender notifies Agent and Administrative Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable Default or Event of Default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent, any Issuing Lender, or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b) has notified any Borrower, Agent an Issuing Lender in writing that it does not intend to satisfy any obligation referred to in clause (a) above or under agreements in which it commits to extend credit generally, or has made a public statement to the effect of either of the foregoing (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable Default or Event of Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by Agent or Administrative Borrower, to confirm in writing to Agent and Administrative Borrower that it will comply with its prospective funding obligations hereunder (provided, that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Agent and Administrative Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of any Insolvency Proceeding, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; 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 or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to Administrative Borrower, each Issuing Lender, and each Lender.

Defaulting Lender Rate” means (a) with respect to US Obligations, (i) for the first three days from and after the date the relevant payment is due, the US Base Rate, and (ii) thereafter, the interest rate then applicable to US Revolving Loans that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto)<,> and (b) with respect to Canadian Obligations, (i) for the first three days from and after the date the relevant payment is due, the Canadian Base Rate (if such Canadian Obligations are denominated in Canadian Dollars) or the US Base Rate (if such Canadian Obligations are denominated in Dollars), and (ii) thereafter, the interest rate then applicable to Canadian Revolving Loans that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto)< and (c) with respect to UK Obligations, (i) for the first 3 days from and after the date the relevant payment is due, the UK Floating Rate (in the Applicable Currency), and (ii) thereafter, the interest rate then applicable to UK Revolving Loans that are Base Rate Loans (inclusive of the Base Rate Margin applicable thereto).>.

 

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Deposit Account” means any deposit account (as that term is defined in the Code).

Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interests into which they are convertible or for which they are exchangeable), or upon the happening of any event or condition (a) matures or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provide for the scheduled payments of dividends in cash (other than Pass-Through Tax Liabilities), or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 180 days after the Maturity Date unless in the case of clause (b) and (c) above, the right to receive the applicable consideration is contingent upon the Obligations having been paid in full.

Disregarded Domestic Person” means any direct or indirect Domestic Subsidiary that is treated as a disregarded entity for U.S. federal income tax purposes, if it holds no material assets other than the equity of one or more direct or indirect Foreign Subsidiaries that are CFCs or other Disregarded Domestic Persons.

<“Documentation Agent” has the meaning set forth in the preamble to this Agreement.>

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 another currency, the equivalent amount thereof in Dollars as determined by Agent, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or such other date determined by Agent) for the purchase of Dollars with such currency.

Dollars” or “$” means United States dollars.

Domestic Cash Equivalents” means (a) marketable direct obligations issued by, or unconditionally guaranteed by, the United States or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof, (b) marketable direct obligations issued or fully guaranteed by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Standard & Poor’s Rating Group (“S&P”) or Moody’s Investors Service, Inc. (“Moody’s”), (c) commercial paper issued by any Lender or any bank holding company owning any Lender, or commercial paper maturing no more than <270 days from>12 months after the date of creation thereof and, at the time of acquisition, having a rating of at least <A-1>A or A2 from either S&P or <at least P- 1 from Moody’s, (d)>Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service), (d) domestic

 

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and LIBOR certificates of deposit<, time deposits, overnight bank deposits> or bankers<’> acceptances maturing <within one year from>no more than two years after the date of acquisition thereof issued by any <bank organized under >the laws of the United States or <any state thereof or the District of Columbia or any United States branch of a foreign>Lender or any other bank having <at the date of acquisition thereof >combined capital and surplus of not less than $<1,000,000,000>250,000,000 in the case of domestic banks, (e) Deposit Accounts maintained with (i) any bank that satisfies the criteria described in clause (d) above, or (ii) any other bank organized under the laws of the United States or any state thereof so long as the full amount maintained with any such other bank is insured by the Federal Deposit Insurance Corporation, (f) repurchase <obligations of any commercial bank satisfying the requirements of clause (d) of this definition or recognized securities dealer having combined capital and surplus of not less than $1,000,000,000, having>agreements with a term of not more than <seven>30 days<, with respect to> for underlying securities <satisfying>of the <criteria>type described in clauses (a), (b) or (d) above entered into with any bank meeting the qualifications specified in clause (d) above or securities dealers of recognized national standing, (g) debt securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the criteria described in clause (d) above, <and >(h) marketable short-term money market and similar funds (x) either having assets in excess of $250,000,000 or (y) having a rating of at least A-1 or P-1 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service), and (i) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (<g>h) above.

Domestic Subsidiary” means any Subsidiary of any Loan Party that is not a Foreign Subsidiary.

Drawing Document” means any Letter of Credit or other document presented for purposes of drawing under any Letter of Credit, including by electronic transmission such as SWIFT, electronic mail, facsimile or computer generated communication.

“Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the occurrence of:

(a) a notification by Agent to (or the request by Administrative Borrower to Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar- denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and

(b) the joint election by Agent and Administrative Borrower to trigger a fallback from USD LIBOR and the provision by Agent of written notice of such election to the Lenders.

Earn-Outs” means unsecured liabilities of a Loan Party arising under an agreement to make any deferred payment as a part of the purchase price for a Permitted Acquisition, including performance bonuses or consulting payments in any related services, employment or similar agreement, in an amount that is subject to or contingent upon the revenues, income, cash flow or profits (or the like) of the target of such Permitted Acquisition.

 

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EBITDA” means, with respect to any fiscal period and with respect to Parent determined, in each case, on a consolidated basis in accordance with GAAP:

(a) the consolidated net income (or loss),

minus

(b) without duplication, the sum of the following amounts for such period to the extent included in determining consolidated net income (or loss) for such period:

(i) any extraordinary, unusual, or non-recurring non-cash gains; provided, that if any such non-cash gains referred to in this clause 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 included in EBITDA to such extent,

(ii) interest income,

(iii) the amount of any non-controlling interest income consisting of losses attributed to non-controlling interests of third parties in any non-wholly owned Subsidiaries of Parent to the extent included in consolidated net income (or loss) and not received in cash by Parent,

(iv) unrealized or realized non-cash gains in respect of obligations under hedging transactions, and non-cash gains resulting from currency translation or non-cash transaction gains related to currency re-measurements of Indebtedness, and all other foreign currency translation or transaction non-cash gains,

(v) expenses or charges arising from the sale or issuance of Equity Interests, the granting of stock options, and the granting of stock appreciation rights and similar arrangements (including any repricing, amendment, modification, substitution, or change of any such Equity Interests, stock option, stock appreciation rights, or similar arrangements) but only to the extent that such expenses or charges are funded with cash proceeds contributed to the capital of Parent or an issuance of capital stock of Parent,

(vi) federal, state, provincial and local income tax credits,

(vii) non-cash gains on sales of fixed assets or discontinued or disposed of operations, and

(viii) income arising by reason of the application of FAS 141R,

(ix) non-operating income, and

(x) income tax benefits and decreases in any change in LIFO reserves,

 

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plus

(c) without duplication, the sum of the following amounts for such period to the extent included in determining consolidated net income (or loss) for such period:

(i) any extraordinary, unusual, or non-recurring non-cash losses; provided, that if any such non-cash losses referred to in this clause 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 deducted from EBITDA to such extent,

(ii) Interest Expense,

(iii) tax expense based on income, profits or capital, including federal, foreign, state, provincial franchise and similar taxes (and for the avoidance of doubt, specifically excluding any sales taxes or any other taxes held in trust for a Governmental Authority),

(iv) depreciation and amortization for such period (including (x) accelerated depreciation and amortization from the write-off or write-down of tangible or intangible assets (other than the write-off or write-down of current assets) and (y) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, bridge, commitment and other financing fees, discounts and yield),

(v) with respect to any Permitted Acquisition after the Closing Date, costs, fees, charges, or expenses consisting of out-of-pocket expenses owed by the Loan Parties or any of their Subsidiaries to any Person for services performed by such Person in connection with such Permitted Acquisition incurred within 365 days of the consummation of such Permitted Acquisition,

(vi) with respect to any Permitted Acquisitions after the Closing Date: (1) purchase accounting adjustments, including, without limitation, a dollar for dollar adjustment for that portion of revenue that would have been recorded in the relevant period had the balance of deferred revenue (unearned income) recorded on the closing balance sheet and before application of purchase accounting not been adjusted downward to fair value to be recorded on the opening balance sheet in accordance with GAAP purchase accounting rules; and (2) non-cash adjustments in accordance with GAAP purchase accounting rules under FASB Statement No. 141, ASC 805 or EITF Issue No. 01-3, in the event that such an adjustment is required by Parent’s independent auditors, in each case, as determined in accordance with GAAP,

(vii) fees, costs, charges and expenses, in respect of Earn-Outs incurred in connection with any Permitted Acquisition to the extent permitted to be incurred under this Agreement that are required by the application of FAS 141R to be and are expensed by the Loan Parties and their Subsidiaries,

(viii) non-cash compensation expense (including deferred non-cash compensation expense), or other non-cash expenses or charges, arising from the sale or issuance of Equity Interests, the granting of stock options, and the granting of stock appreciation rights and similar arrangements (including any repricing, amendment, modification, substitution, or change of any such Equity Interests, stock option, stock appreciation rights, or similar arrangements) minus the amount of any such expenses or charges when paid in cash to the extent not deducted in the computation of net income (or loss),

 

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(ix) non-recurring expenses for severance, recruitment and hiring of senior management or other officers (including signing bonuses in connection therewith),

(x) non-recurring cash charges incurred during such period in respect of restructurings, retention, business process optimizations, project start-up costs, and headcount reductions,

(xi) the amount of any non-controlling interest expense consisting of losses attributed to non-controlling interests of third parties in any non-wholly owned Subsidiaries of Parent,

(xii) expenses, charges and fees (including expenses, charges and fees paid to Agent and Lenders) incurred during such period and after the Closing Date in connection with the administration (including in connection with any waiver, amendment, restatement, supplementation or other modification thereto of the Loan Documents) of the Loan Documents, and all rating agency costs and expenses related thereto,

(xiii) documented fees and expenses incurred during such period in connection with any issuance of Equity Interests permitted hereunder, any issuance or incurrence of any Indebtedness permitted to be incurred hereunder, any Permitted Investment (other than Permitted Acquisitions, Permitted Intercompany Advances and other Permitted Investments made in the ordinary course of business) or any Permitted Disposition, including any financing fees, merger and acquisition fees (in each case, whether or not such transaction is consummated),

(xiv) costs and expenses incurred (A) to the extent covered by indemnification or reimbursement provisions in any agreement with a Person in connection with any Permitted Acquisition, or (B) to the extent indemnified or reimbursed by a Person that is not an Affiliate of the Loan Parties, and in each case, solely to the extent such indemnification or reimbursement did not increase consolidated net income for such period,

(xv) non-cash losses in respect of obligations under hedging transactions, and non-cash losses resulting from currency translation or non-cash transaction losses related to currency re-measurements of Indebtedness, and all other non-cash foreign currency translation or transaction losses,

(xvi) non-cash losses on sales of fixed assets or discontinued or disposed of operations or write-downs of fixed or intangible assets (excluding write-downs of Accounts or Inventory) (provided, that to the extent any non-cash item added back to EBITDA in any period results in a cash payment in such period or a subsequent period such cash payment shall result in a reduction of EBITDA in the period when such payment is made),

(xvii) increases in any change in LIFO reserves,

(xviii) any non-cash expenses, losses, or charges with respect to non-compete agreements and other similar agreements, write-offs of deferred financing costs and

 

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debt issuance costs, unrealized losses on foreign currency translation, non-cash charges in respect of capitalized research and development and organizational costs, non-cash losses from permitted joint ventures and non-cash losses on any extinguishment of debt (provided, that to the extent any non-cash item added back to EBITDA in any period results in a cash payment in such period or a subsequent period such cash payment shall result in a reduction of EBITDA in the period when such payment is made),

(xix) cost-savings, operating expense reductions, restructuring charges and expenses and cost-saving synergies (collectively, “Cost Savings”) projected by Borrowers in good faith to be realized as a result of any merger, acquisition, joint venture, material disposition taken or to be taken by the Borrowers or any of their Subsidiaries and permitted hereunder during such period (calculated on a pro forma basis as though such Cost-Savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided, that (A) such Cost-Savings are reasonably identifiable, reasonably attributable to the actions specified and reasonably anticipated to result from such actions, (B) such Cost-Savings are commenced within 12 months of such actions and the benefits resulting from such actions are reasonably anticipated by the Borrowers to be realized within twelve (12) months of the date of consummation of such merger, acquisition, joint venture or material disposition, (C) no Cost-Savings may be added pursuant to this clause (xxii) to the extent duplicative of any expenses or charges relating thereto that are either excluded in computing consolidated net income (or loss) or included (i.e., added back) in computing EBITDA for such period, and (D) the amount of any such Cost-Savings would be permitted to be included in financial statements prepared in accordance with Regulation S-X under the Securities Act during such period, <and>

(xx) any non-cash losses or charges relating to Inventory or bad debt reserve amounts; provided, that any write-off of Accounts, as well as EBITDA attributable to any charges to Inventory, shall be deducted from EBITDA, and

(<xx>xxi) proceeds of business interruption insurance received by a Loan Party (to the extent such proceeds of business interruption insurance (A) are not included in income of Parent and its Subsidiaries and (B) represent lost profits);

provided, that the amount added back to EBITDA pursuant to clauses (c)(<vii), (c)(>ix), (c)(x<), (c)(xii>) and (c)(xiv) shall not exceed the greater of $7,500,000 and 10% of EBITDA (before giving effect to such clauses) in the aggregate for any fiscal period; and

provided, further, that the amount added back to EBITDA pursuant to clause (c)(xix) shall not exceed the greater of $7,500,000 and 10% of EBITDA (before giving effect to such clause) in the aggregate for any fiscal period.

For the purposes of calculating EBITDA for any period of four consecutive fiscal quarters (each, a “Reference Period”), if at any time during such Reference Period (and on or after the Closing Date), any Loan Party or any of its Subsidiaries shall have made a Permitted Acquisition, EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto or in such other manner acceptable to Agent as if any such Permitted Acquisition occurred on the first day of such Reference Period.

 

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In addition, notwithstanding the foregoing, the amount of positive EBITDA attributable to Subsidiaries that are not Loan Parties during any calculation period, to the extent such amount exceeds 15% of EBITDA of the Loan Parties and their Subsidiaries on a consolidated basis for such calculation period, shall be disregarded for purposes of calculating the Fixed Charge Coverage Ratio< and the Leverage Ratio>.

<In addition, notwithstanding the foregoing, (a) EBITDA for the quarter ended March 31, 2017 shall be deemed to be $(3,467,048), (b) EBITDA for the quarter ended June 30, 2017 shall be deemed to be $3,819,302, (c) EBITDA for the quarter ended September 30, 2017 shall be deemed to be $9,294,262, and (d) EBITDA for the quarter ended December 31, 2017 shall be deemed to be $17,297,516. >

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.

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 Agent in Agent’s Permitted Discretion to address the results of any information with respect to the Loan Parties’ business or assets of which Agent becomes aware after the Closing Date, including any field examination performed by (or on behalf of) Agent from time to time after the Closing Date; provided further that Agent shall endeavor to notify Administrative Borrower at or before the time any such revision is instituted, but a non-willful failure of Agent to so notify Administrative Borrower shall not be a breach of this Agreement and shall not cause such revision to be ineffective; provided further that any such adjustments shall not be duplicative of any Reserves imposed by Agent in connection with any such information. In determining the amount to be included, Eligible Accounts shall be calculated net of customer deposits, unapplied cash, taxes,

 

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finance charges, service charges, discounts, credits, allowances, and rebates. Eligible Accounts shall not include the following:

(a) Accounts that the Account Debtor has failed to pay within 90 days of original invoice date or 60 days of due date, provided, however, that Accounts that an Extended AR Account Debtor has failed to pay for more than 90 days but less than 121 days of original invoice date, together with Accounts that an Extended AR Account Debtor has failed to pay for more than 60 days but less than 91 days of due date, shall not be excluded by this clause (a) (this proviso, the “Extended Terms Proviso”), in an aggregate amount not to exceed 10% of all Eligible Accounts (calculated without giving effect to the Extended Terms Proviso);

(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 (i) 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, or (ii) with respect to which the payment terms are “C.O.D.”, cash on delivery or other similar terms, provided, however, that Accounts not to exceed $1,500,000 in the aggregate at any time shall not be excluded by this clause (d), if such Accounts otherwise satisfy the requirements for Eligible Accounts,

(e) Accounts that are not payable in Dollars or, with respect to Accounts of a Canadian Loan Party, Dollars or Canadian Dollars,< or, with respect to Accounts of a UK Loan Party, Dollars or Sterling,>

(f) Accounts with respect to which the Account Debtor either (i) does not maintain its chief executive office or registered office in United States<,> or Canada< or United Kingdom (or, in the case of the UK Loan Party, any other EEA Member Country acceptable to Agent in its sole discretion)>, or (ii) is not organized under the laws of the United States or any state thereof<,> or Canada or any province thereof, or <the United Kingdom (or, in the case of the UK Loan Party, any other EEA Member Country acceptable to Agent in its sole discretion), 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, unless (A) the Account is supported by an irrevocable letter of credit <reasonably >satisfactory to Agent in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank) that has been delivered to Agent and, if requested by Agent, is directly drawable by Agent, or (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, <reasonably >satisfactory to Agent, in its Permitted Discretion,

(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 Loan Parties have complied, to the reasonable satisfaction of Agent, with the Assignment of Claims Act, 31 USC §3727), (ii) any state of the United States or any other Governmental Authority, or (iii) a Governmental Authority of Canada or any province

 

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thereof (exclusive, however, of Accounts with respect to which a Canadian Loan Party has complied, to the reasonable satisfaction of Agent, with any applicable assignment of claims statute, including the Financial Administration Act (Canada)), unless, in either case, such Account is backed by a letter of credit reasonably acceptable to the Agent and which is in the possession of the Agent;

(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, to the extent of such claim, right of recoupment or setoff, or dispute,

(i) Accounts with respect to an Account Debtor rated (or whose parent is rated) Baa3 or higher from Moody’s or BBB- or higher from S&P whose Eligible Accounts owing to Loan Parties exceed 20%, or Accounts with respect to an Account Debtor other than one previously described by this clause (i) whose Eligible Accounts owing to Loan Parties exceed 15% (such percentages, in either case, as applied to a particular Account Debtor, being subject to reduction by Agent in its Permitted Discretion if the creditworthiness of such Account Debtor deteriorates; provided that Agent shall endeavor to notify Administrative Borrower at or before the time any such reduction is instituted, but a non-willful failure of Agent to so notify Administrative Borrower shall not be a breach of this Agreement and shall not cause such reduction to be ineffective) 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 applicable foregoing percentage shall be determined by Agent in its Permitted Discretion 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, 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 Agent’s Lien,

(m) Accounts with respect to which (i) the goods giving rise to such Account have not been shipped and billed to the Account Debtor, or (ii) the services giving rise to such Account have not been performed and billed to the Account Debtor,

(n) Accounts with respect to which the Account Debtor is a Sanctioned Person or Sanctioned Entity,

(o) Accounts (i) 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, or (ii) that represent credit card sales, or

 

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(p) Accounts owned by a target acquired in connection with a Permitted Acquisition or Permitted Investment, or Accounts owned by a Person that is joined to this Agreement as a Loan Party pursuant to the provisions of this Agreement, until the completion of a field examination with respect to such Accounts, in each case, satisfactory to Agent in its Permitted Discretion<,>.

(q) in the case of a <UK Loan Party, Accounts with respect to which the Account Debtor is located in a jurisdiction that requires, as a condition to access to the courts of such jurisdiction, that a creditor qualify to transact business, file a business activities report or other report or form, or take one or more other actions, unless such UK Loan Party has so qualified, filed such reports or forms, or taken such actions (and, in each case, paid any required fees or other charges), except to the extent that such UK Loan Party may qualify subsequently as a foreign entity authorized to transact business in such jurisdiction and gain access to such courts, without incurring any cost or penalty viewed by Agent in its Permitted Discretion to be significant in amount, and such later qualification cures any access to such courts to enforce payment of such Account,>

(r) <in the case of the UK Loan Party, Accounts for which the assignment thereof are restricted or prohibited by the terms of such Account or by law except to the extent such restriction or prohibition does not prevent the collection thereof by the UK Loan Party or affect or impair the validity or perfection of the Agent’s Liens therein, or>

(s) <in the case of the UK Loan Party, Accounts not >governed by the laws of <any legal jurisdiction >of the United States or <the United Kingdom.>

Eligible Finished Goods Inventory” means Inventory that qualifies as Eligible Inventory and consists of <first quality >finished goods held for sale in the ordinary course of Loan Parties’ business.

Eligible Inventory” means Inventory of a Loan Party, that 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 Agent in Agent’s Permitted Discretion to address the results of any information with respect to the Loan Parties’ business or assets of which Agent becomes aware after the Closing Date, including any field examination or appraisal performed or received by Agent from time to time after the Closing Date. In determining the amount to be so included, Inventory shall be valued at the lower of cost or market on a basis consistent with Loan Parties’ historical accounting practices. 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 Borrower),

(c) it is not located at one of the locations in the continental United States (in the case of US Borrowers)<,> or Canada (in the case of Canadian Borrowers<) or the United Kingdom (in the case of UK Borrowers>), in each case set forth on Schedule 4.25 to this

 

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Agreement (as such Schedule 4.25 may be amended from time to time with not less than 10 days’ prior written notice to Agent) (or in-transit from one such location in the United States to another such location in the United States (in the case of US Borrowers), or in-transit from one such location in Canada to another such location in Canada (in the case of Canadian Borrowers)< or intransit from one such location in the United Kingdom to another such location in the United Kingdom (in the case of the UK Borrowers)>),

(d) it is stored at locations holding less than $<200,000>100,000 of the aggregate value of such Borrower’s Inventory,

(e) it is in-transit to or from a location of a Borrower (other than in-transit from one location set forth on Schedule 4.25 to this Agreement to another location set forth on Schedule 4.25 to this Agreement (as such Schedule 4.25 may be amended from time to time with the prior written consent of Agent)),

(f) it is located on real property leased by a Loan Party or in a contract warehouse or with a bailee or customer, in each case, unless either (i) it is subject to a Collateral Access Agreement executed by the lessor, customer 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 (ii) Agent has established a Landlord Reserve with respect to such location,

(g) it is the subject of a bill of lading or other document of title,

(h) it is not subject to a valid and perfected first priority Agent’s Lien,

(i) it consists of goods returned or rejected by a Loan Party’s customers,

(j) it consists of goods that are obsolete, slow moving, spoiled or are otherwise past the stated expiration, “sell-by” or “use by” date applicable thereto, restrictive or custom items or otherwise is manufactured in accordance with customer-specific requirements, work-in-process, raw materials, or goods that constitute spare parts, packaging and shipping materials, supplies used or consumed in Loan Parties’ business, bill and hold goods, defective goods, “seconds,” or Inventory acquired on consignment,

(k) it is subject to third party intellectual property, licensing or other proprietary rights, unless Agent is 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, or

(l) it was acquired in connection with a Permitted Acquisition or Permitted Investment, or such Inventory is owned by a Person that is joined to this Agreement as a Loan Party pursuant to the provisions of this Agreement, until the completion of an Acceptable Appraisal of such Inventory and the completion of a field examination with respect to such Inventory that is satisfactory to Agent in its Permitted Discretion<, or>.

(m) <in the case of a UK Loan Party, it is subject to (i) a contract or related documentation (such as an invoice or purchase order) which includes retention-of-title rights in favor of the vendor or supplier thereof and (ii) applicable laws which provide that retention of title may be imposed unilaterally by the vendor or supplier thereof.>

 

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Eligible Transferee” means (a) any Lender (other than a Defaulting Lender), any Affiliate of any Lender and any Related Fund of any Lender; (b) (i) a commercial bank organized under the laws of the United States or any state thereof or Canada, and having total assets in excess of $1,000,000,000; (ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof, and having total assets in excess of $1,000,000,000; (iii) a commercial bank organized under the laws of any other country or a political subdivision thereof; provided, that (A) (x) such bank is acting through a branch or agency located in the United States or Canada, or (y) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country, and (B) such bank has total assets in excess of $1,000,000,000; (c) any other entity (other than a natural person) that is an “accredited investor” (as defined in Regulation D under the Securities Act) that extends credit or buys loans as one of its businesses including insurance companies, investment or mutual funds and lease financing companies, and having total assets in excess of $1,000,000,000; and (d) during the continuation of an Event of Default other than a Specified Event of Default, any other Person (other than a natural person or a Competitor) approved by Agent, and during the continuation of a Specified Event of Default, any other Person (other than a natural person) approved by Agent.

Employee Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA to which any Loan Party has an obligation to make a contribution, including as the result of being an ERISA Affiliate, other than a Canadian Benefit Plan or a Canadian Pension Plan.

Environmental Action” means any written complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, decree, letter, or other written communication from any Governmental Authority, or any third party involving violations of Environmental Laws or releases of Hazardous Materials (a) from any assets, properties, or businesses of any Borrower, any Subsidiary of any Borrower, or any of their predecessors in interest, (b) from adjoining properties or businesses, or (c) from or onto any facilities which received Hazardous Materials generated by any Borrower, any Subsidiary of any Borrower, or any of their predecessors in interest.

Environmental Law” means any applicable federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, binding and enforceable guideline, binding and enforceable written policy, or rule of common law now or hereafter in effect and in each case as amended, or any judicial or administrative interpretation thereof, including any judicial or administrative order, decree, consent decree or judgment, in each case, to the extent binding on any Loan Party or its Subsidiaries, relating to the environment, the effect of the environment on employee health, or Hazardous Materials, in each case as amended from time to time.

Environmental Liabilities” means all liabilities, monetary obligations, losses, damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts, or consultants, and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, or Remedial Action required, by any Governmental Authority or any third party, and which relate to any Environmental Action.

 

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Environmental Lien” means any Lien in favor of any Governmental Authority for Environmental Liabilities.

Equipment” means equipment (as that term is defined in the Code or, to the extent applicable, the PPSA).

Equity Interests” means, with respect to a Person, all of the shares, options, warrants, interests, participations, or other equivalents (regardless of how designated) of or in such Person, whether voting or nonvoting, including capital stock (or other ownership or profit interests or units), preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the SEC under the Exchange Act).

Equity Issuance Proceeds” means, with respect to any issuance of Equity Interests, all cash and cash equivalent investments received by the Parent from such issuance of Equity Interests (other than from any Subsidiary) after payment of, or provision for, all underwriter fees and expenses, SEC and blue sky fees, printing costs, fees and expenses of accountants, lawyers and other professional advisors, brokerage commissions and other out-of- pocket fees and expenses actually incurred by any Loan Party in connection with such issuance of Equity Interests.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto.

ERISA Affiliate” means (a) any Person subject to ERISA whose employees are treated as employed by the same employer as the employees of any Loan Party under IRC Section 414(b), (b) any trade or business subject to ERISA whose employees are treated as employed by the same employer as the employees of any Loan Party under IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any organization subject to ERISA that is a member of an affiliated service group of which any Loan Party is a member under IRC Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA that is a party to an arrangement with any Loan Party and whose employees are aggregated with the employees of such Loan Party under IRC Section 414(o).

“Erroneous Payment” has the meaning specified therefor in Section 17.19 of this Agreement.

“Erroneous Payment Deficiency Assignment” has the meaning specified therefor in Section 17.19 of this Agreement.

“Erroneous Payment Impacted Loans” has the meaning specified therefor in Section 17.19 of this Agreement.

 

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“Erroneous Payment Return Deficiency” has the meaning specified therefor in Section 17.19 of this Agreement.

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.

Event of Default” has the meaning specified therefor in Section 8 of this Agreement.

Excess” has the meaning specified therefor in Section 2.14 of this Agreement.

Exchange Act” means the Securities Exchange Act of 1934, as in effect from time to time.

Exchange Rate” means and refers to the nominal rate of exchange (vis-à-vis Dollars) for a currency other than Dollars published in the Wall Street Journal (Western Edition) on the date of determination (which shall be a Business Day on which the Wall Street Journal (Western Edition) is published), expressed as the number of units of such other currency per one Dollar.

Excluded Collateral” means, with respect to any Loan Party, including any Person that becomes a Loan Party after the Closing Date, (i) voting Equity Interests of any CFC, solely to the extent that (w) such Equity Interests secure the US Obligations (and, for the avoidance of doubt, this clause (i) shall not limit the portion of such Equity Interests pledged to secure any Foreign Obligations), and (y) such Equity Interests represent more than 65% of the outstanding voting Equity Interests of such CFC (which pledge, if reasonably requested by Agent, shall be governed by the laws of the jurisdiction of such Subsidiary), (ii) any rights or interest in any contract, lease, permit, license, or license agreement covering real or personal property of any Grantor if under the terms of such contract, lease, permit, license, or license agreement, or applicable law with respect thereto, the grant of a security interest or lien therein is prohibited as a matter of law or under the terms of such contract, lease, permit, license, or license agreement and such prohibition or restriction has not been waived or the consent of the other party to such contract, lease, permit, license, or license agreement has not been obtained (provided, that (A) the foregoing exclusions of this clause (ii) shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is ineffective under Section 9- 406, 9-407, 9-408, or 9-409 of the Code or other applicable law, or (2) to apply to the extent that any consent or waiver has been obtained that would permit Agent’s security interest or lien to attach notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, or license agreement and (B) the foregoing exclusions of clauses (i) and (ii) shall in no way be construed to limit, impair, or otherwise affect any of Agent’s, any other member of the Lender Group’s or any Bank Product Provider’s continuing security interests in and liens upon any rights or interests of any Grantor in or to (1) monies due or to become due under or in connection with any described contract, lease, permit, license, license agreement, or Equity Interests (including any Accounts or Equity Interests), or (2) any proceeds from the sale, license, lease, or other dispositions of any such contract, lease, permit, license, license agreement, or Equity Interests), (iii) any United States intent-to-use trademark applications to the extent that,

 

39


and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law; provided, that upon submission and acceptance by the PTO of an amendment to allege use pursuant to 15 U.S.C. Section 1060(a) (or any successor provision), such intent-to-use trademark application shall be considered Collateral, (iv) any motor vehicles, (v) any real or personal property as to which the Agent and the Borrowers agree in writing that the costs or other consequences of obtaining a security interest or perfection thereof (including, without limitation, based on the location of any such real property) are excessive in view of the benefits to be obtained by the Lender Group therefrom, and (vi) all fee and leasehold interests in real property that is not required to constitute Real Property Collateral. <Notwithstanding the foregoing, “Excluded Collateral” shall not include any asset which is the subject of a floating charge governed by English law or Scottish law. >

Excluded Subsidiary” means (a) any Disregarded Domestic Persons, (b) any Foreign Subsidiary of a Loan Party that is a CFC, (c) any Domestic Subsidiary of a Loan Party that is a direct or indirect subsidiary of a Foreign Subsidiary that is a CFC, or (d) any Subsidiary that has no assets (other than de minimis assets) other than Equity Interests in entities described in clauses (a), (b) and (c) above.

Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of (including by virtue of the joint and several liability provisions of Section 2.15), or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty 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) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.

Excluded Taxes” means (i) any Tax imposed on the net income or net profits of any Lender or any Participant (including any branch profits taxes), in each case imposed by the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender or such Participant is organized or the jurisdiction (or by any political subdivision or taxing authority thereof) in which such Lender’s or such Participant’s principal office is located in or as a result of a present or former connection between such Lender or such Participant and the jurisdiction or taxing authority imposing the tax (other than any such connection arising solely from such Lender or such Participant having executed, delivered or performed its obligations or received payment under, or enforced its rights or remedies under this Agreement or any other Loan Document), (ii) United States or Canadian federal withholding taxes that would not have been imposed but for a Lender’s or a Participant’s failure to comply with the requirements of Section 16.2 of this Agreement, (iii) any United States or Canadian federal withholding taxes that would be imposed on amounts payable to a Foreign Lender based upon the applicable withholding rate in effect at the time such Foreign Lender becomes a party to this Agreement (or

 

40


designates a new lending office, other than a designation made at the request of a Loan Party), except that Excluded Taxes shall not include any amount that such Foreign Lender (or its assignor, if any) was previously entitled to receive pursuant to Section 16.1 of this Agreement, if any, with respect to such withholding tax at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), and (iv) any United States<,> and Canada <and UK >withholding taxes imposed under FATCA.

Existing Credit Facility” means that certain Credit Agreement, dated as of April 18, 2014, among Parent, as Borrower, Wells Fargo, as administrative agent, an issuing lender and US swingline lender thereunder, the lenders party thereto from time to time and Wells Fargo Securities, LLC, as sole lead arranger and sole book runner thereunder, as such agreement has been amended, restated, supplemented or otherwise modified from time to time.

Existing Letters of Credit” means those letters of credit described on Schedule <E-1>E to this Agreement.

“Extended AR Account Debtor” means those Account Debtors previously disclosed to Agent prior to the First Amendment Effective Date as Extended AR Account Debtors, which are specifically set forth as Extended AR Account Debtors on the first Borrowing Base Certificate delivered to Agent after the First Amendment Effective Date, and such additional Account Debtors designated as Extended AR Account Debtors from time to time by Borrowers on any later Borrowing Base Certificate delivered to Agent, solely with the consent of Agent, in its Permitted Discretion.

Extraordinary Advances” means the US Extraordinary Advances<, the UK Extraordinary Advances> and/or the Canadian Extraordinary Advances, as the context requires.

<“Facility Office” means in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.>

FATCA” means Sections 1471 through 1474 of the IRC, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and (a) any current or future regulations or official interpretations thereof, (b) any agreements entered into pursuant to Section 1471(b)(1) of the IRC, (c) any intergovernmental agreement entered into by the United States (or any fiscal or regulatory legislation, rules, or practices adopted pursuant to any such intergovernmental agreement entered into in connection therewith) and (d) any analogous provision of <UK and >Canadian law.

FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

Fee Letter” means that certain fee letter, dated as of even date with this Agreement, among Borrowers and Agent, in form and substance reasonably satisfactory to Agent.

 

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Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal to, for each day during such period, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by it (and, if any such rate is below zero, then the rate determined pursuant to this definition shall be deemed to be zero).

<“Financial Support Direction” means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004 (UK).>

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System.

“Fee Letter” means that certain fee letter, dated as of even date with this Agreement, among Borrowers and Agent, in form and substance reasonably satisfactory to Agent.

“First Amendment Effective Date” means December 14, 2021.

“Fixed Charge Coverage Ratio” means, with respect to any fiscal period and with respect to Parent determined on a consolidated basis in accordance with GAAP, the ratio of (a) EBITDA for such period minus Unfinanced Capital Expenditures made (to the extent not already incurred in a prior period) or incurred during such period, to (b) Fixed Charges for such period.

For the purposes of calculating Fixed Charge Coverage Ratio for any Reference Period, if at any time during such Reference Period (and after the Closing Date), any Loan Party or any of its Subsidiaries shall have made a Permitted Acquisition, Fixed Charges and Unfinanced Capital Expenditures for such Reference Period shall be calculated after giving pro forma effect thereto or in such other manner acceptable to Agent as if any such Permitted Acquisition occurred on the first day of such Reference Period.

Fixed Charges” means, with respect to any fiscal period and with respect to Parent determined on a consolidated basis in accordance with GAAP, the sum, without duplication, of (a) Interest Expense required to be paid (other than interest paid-in-kind, amortization of financing fees, and other non-cash Interest Expense) during such period, (b) scheduled principal payments in respect of Indebtedness that are required to be paid during such period, (c) all federal, state, provincial and local income and capital taxes required to be paid during such period, (d) all Restricted Payments paid (whether in cash or other property, other than common Equity Interests) during such period and all amounts paid with respect to Earn-Outs during such period, and (e) to the extent not otherwise deducted from EBITDA for such period, all payments required to be made during such period in respect of any funding deficiency or funding shortfall with respect to any Pension Plan or for any Withdrawal Liability.

<For the purpose of any calculation of Fixed Charge Coverage Ratio on or prior to March 31, 2019, each component set forth in clauses (a), (b), (c) (d) and (e) of definition of

 

42


Fixed Charges for each period set forth below shall >be deemed to be the <amount set forth below opposite such period:>

 

     Interest
Expense
     Scheduled
Principal
Payments of
Indebtedness
     Federal, State,
Provincial and
Local Income
and Capital
Taxes
     Restricted
Payments
and Earn-
Outs
     Funding
Deficiencies
or Shortfalls
 

Fiscal Quarter ended March 31, 2017

   $ 947,787      $ 0      $ 2,223,940      $ 0      $ 0  

Fiscal Quarter ended June 30, 2017

   $ 1,550,299      $ 0      $ 495,049      $ 0      $ 0  

Fiscal Quarter ended September 30, 2017

   $ 2,005,001      $ 0      $ 47,536      $ 0      $ 0  

Fiscal Quarter ended December 31, 2017

   $ 2,071,295      $ 0      $ 0      $ 0      $ 0  

“Flood Laws” means the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, and related laws, rules and regulations, including any amendments or successor provisions.

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to USD LIBOR.

Fixed Charge Coverage Ratio” means, with respect to any fiscal period and with respect to Parent determined on a consolidated basis in accordance with GAAP, the ratio of (a) EBITDA for such period minus Unfinanced Capital Expenditures made (to the extent not already incurred in a prior period) or incurred during such period, to (b) Fixed Charges for such period. <For the purpose of any calculation of Fixed Charge Coverage Ratio on or prior to March 31, 2019, Unfinanced Capital Expenditures shall be deemed to be for each period set forth below shall be deemed to be $765,872 for the fiscal quarter ended March 31, 2017, $959,311 for the fiscal quarter ended June 30, 2017, $1,245,066 for the fiscal quarter ended September 30, 2017, and $1,249,342 for the fiscal quarter ended December 31, 2017.>

For the purposes of calculating Fixed Charge Coverage Ratio for any Reference Period, if at any time during such Reference Period (and after the Closing Date), any Loan Party or any of its Subsidiaries shall have made a Permitted Acquisition, Fixed Charges and Unfinanced Capital Expenditures for such Reference Period shall be calculated after giving pro forma effect thereto or in such other manner acceptable to Agent as if any such Permitted Acquisition occurred on the first day of such Reference Period.

 

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Flow of Funds Agreement” means a flow of funds agreement, dated as of even date with this Agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by Borrowers and Agent.

Foreign Cash Equivalents” means (a) certificates of deposit, bankers’ acceptances, or time deposits maturing within one year from the date of acquisition thereof, in each case payable in an Agreed Currency and issued by any bank organized under the laws of any Specified State and having at the date of acquisition thereof combined capital and surplus of not less than $1,000,000,000 (calculated at the then applicable Exchange Rate), (b) Deposit Accounts maintained with any bank that satisfies the criteria described in clause (a) above, and (c) Investments in money market funds substantially all of whose assets are invested in the types of assets described in clauses (a) through (b) above.

Foreign Lender” means any Lender or Participant that (i) in the case of a US Borrower, is not a United States person within the meaning of IRC section 7701(a)(30)<,> and (ii) in the case of a Canadian Borrower, is not resident in Canada (within the meaning of the Income Tax Act (Canada) for the purposes of Part XIII of the Income Tax Act (Canada)<, and (iii) in the case of a UK Borrower, is not resident in the United Kingdom>.

Foreign Obligations” means the <UK Obligations plus the >Canadian Obligations.

Foreign Subsidiary” means any direct or indirect subsidiary of any Loan Party that is organized under the laws of, or incorporated in, any jurisdiction other than the United States, any state thereof or the District of Columbia.

Funded Indebtedness” means, as of any date of determination, all Indebtedness for borrowed money or letters of credit of Parent, determined on a consolidated basis in accordance with GAAP, including, in any event, but without duplication, with respect to the Loan Parties and their Subsidiaries, the Revolver Usage, and the amount of their Capitalized Lease Obligations.

Funding Date” means the date on which a Borrowing occurs.

Funding Losses” has the meaning specified therefor in Section 2.12(b)(ii) of this Agreement.

GAAP” means generally accepted accounting principles as in effect from time to time in the United States, consistently applied.

Governing Documents” means, with respect to any Person, the certificate of registration/incorporation, memorandum and articles of association/incorporation, by-laws, or other organizational documents of such Person.

 

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Governmental Authority” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial, provincial, county, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).

Guarantors” means US Guarantors<,> and Canadian Guarantors< and UK Guarantors>.

Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity”, (b) oil, petroleum, or petroleum derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million.

Hedge Agreement” means a “swap agreement” as that term is defined in Section 101(53B)(A) of the Bankruptcy Code.

Hedge Obligations” means US Hedge Obligations<, UK Hedge Obligations> and/or Canadian Hedge Obligations, as the context requires.

Hedge Provider” means any Bank Product Provider that is a party to a Hedge Agreement with a Loan Party or its Subsidiaries or otherwise provides Canadian <Bank Products, UK >Bank Products or US Bank Products under clause (f) of the definitions thereof; provided, that if, at any time, a Lender ceases to be a Lender under this Agreement (prior to the payment in full of the Obligations), then, from and after the date on which it ceases to be a Lender thereunder, neither it nor any of its Affiliates shall constitute Hedge Providers and the obligations with respect to Hedge Agreements entered into with such former Lender or any of its Affiliates shall no longer constitute Hedge Obligations.

Immaterial Subsidiary” means any Subsidiary (other than any Borrower) that, taken together with all Immaterial Subsidiaries as of the last day of the fiscal quarter of Parent most recently ended for which financial statements are required to be delivered pursuant to Section 5.1 (or, as of the Closing Date, the most recent financial statements delivered prior to the Closing Date), did not have assets with a value in excess of 5.0% of consolidated total assets or revenues representing in excess of 5.0% of revenues (for Parent and its Subsidiaries on a consolidated basis) as of such date (or as of the Closing Date, as applicable); provided that if as of the last day of the fiscal quarter of Parent most recently ended for which financial statements are required to be delivered pursuant to Section 5.1 (or, as of the Closing Date, the most recent financial statements delivered prior to the Closing Date), the consolidated total assets or

 

45


revenues of all Subsidiaries so designated by the Borrowers as “Immaterial Subsidiaries” shall have, as of the last day of such fiscal quarter, exceeded either of the limits set forth above, then within thirty (30) days after the date such financial statements are so delivered (or so required to be delivered), the Borrowers shall re-designate one or more Immaterial Subsidiaries in a written notice to Agent, such that, as a result thereof, the consolidated total assets and revenues of all Subsidiaries that are still designated as “Immaterial Subsidiaries” do not exceed such limits. Upon any such Subsidiary ceasing to be an Immaterial Subsidiary pursuant to the preceding sentence, such Subsidiary shall comply with Section 5.10, to the extent applicable for so long as such Subsidiary is not determined or deemed to be an Immaterial Subsidiary.

Increase” has the meaning specified therefor in Section 2.14.

Increase Date” has the meaning specified therefor in Section 2.14.

Increase Joinder” has the meaning specified therefor in Section 2.14.

Increased Reporting Event” means if at any time Aggregate Excess Availability is less than the greater of (a) <15>12.5% of the Line Cap, and (b) $<70,000,000>50,000,000.

Increased Reporting Period” means the period commencing after the continuance of an Increased Reporting Event and continuing until the date when no Increased Reporting Event has occurred for 30 consecutive days.

Indebtedness” as to any Person means (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, or other financial products, (c) all obligations of such Person as a lessee under Capital Leases, (d) all obligations or liabilities of others secured by a Lien on any asset of such Person, irrespective of whether such obligation or liability is assumed, (e) all obligations of such Person to pay the deferred purchase price of assets (other than trade payables incurred in the ordinary course of business and repayable in accordance with customary trade practices and, for the avoidance of doubt, other than royalty payments payable in the ordinary course of business in respect of non-exclusive licenses) and any earn-out or similar obligations, (f) all monetary obligations of such Person owing under Hedge Agreements (which amount shall be calculated based on the amount that would be payable by such Person if the Hedge Agreement were terminated on the date of determination), (g) any Disqualified Equity Interests of such Person, and (h) any obligation of such Person guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any obligation of any other Person that constitutes Indebtedness under any of clauses (a) through (g) above. For purposes of this definition, (i) the amount of any Indebtedness represented by a guaranty or other similar instrument shall be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Indebtedness, and (ii) the amount of any Indebtedness which is limited or is non-recourse to a Person or for which recourse is limited to an identified asset shall be valued at the lesser of (A) if applicable, the limited amount of such obligations, and (B) if applicable, the fair market value of such assets securing such obligation.

 

46


Indemnified Liabilities” has the meaning specified therefor in Section 10.3 of this Agreement.

Indemnified Person” has the meaning specified therefor in Section 10.3 of this Agreement.

Indemnified Taxes” means, (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation of, any Loan Party under any Loan Document, and (b) to the extent not otherwise described in the foregoing clause (a), Other Taxes.

Insolvency Law” means (i) the Bankruptcy Code, (ii) the Bankruptcy and Insolvency Act (Canada), (iii) the Companies’ Creditors Arrangement Act (Canada), (iv) the Winding-Up and Restructuring Act (Canada), (v) the Canada Business Corporations Act (Canada), the Business Corporations Act (Alberta) and any other corporate statute of like effect, where such statute is used by a Person to propose an arrangement, <(vi) the Insolvency Act 1986 (UK) >and/or (<vii>vi ) any similar legislation in a relevant jurisdiction, in each case as applicable and as in effect from time to time.

Insolvency Proceeding” means any proceeding commenced by or against any Person under any Insolvency Law or under any other state, provincial or federal bankruptcy or insolvency law, each as now and hereafter in effect, any successors to such statutes, and any similar laws in any jurisdiction including, without limitation, any laws relating to assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief and any law permitting a debtor to obtain a stay or a compromise of the claims of its creditors<, and including, in the case of a UK Loan Party, any corporate action, legal proceedings or other procedure commenced or other step taken (including the making of an application, the presentation of a petition, the filing or service of a notice or the passing of a resolution) in relation to (a) such UK Loan Party being adjudicated or found insolvent, (b) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise) of such UK Loan Party other than a solvent liquidation or reorganization of such UK Loan Party, the terms of which have been previously approved in writing by Agent, (c) a composition, trust deed, assignation, assignment or arrangement with any class of creditors of such UK Loan Party, or (d) the appointment of a liquidator, supervisor, Scottish receiver, receiver, administrator, administrative receiver, special manager, compulsory manager, trustee, judicial factor or other similar officer in respect of such UK Loan Party or any of its assets.>.

<“Insolvency Regulation” means The Council of the European Union Regulation No. 2015/848 on insolvency proceedings (recast).>

Intercompany Subordination Agreement” means an intercompany subordination agreement, dated as of even date with this Agreement, executed and delivered by each Loan Party and each of its Subsidiaries, and Agent, the form and substance of which is reasonably satisfactory to Agent.

 

47


Interest Expense” means, for any period, the aggregate of the interest expense of Parent for such period, determined on a consolidated basis in accordance with GAAP.

Interest Period” means, with respect to each Non-Base Rate Loan, a period commencing on the date of the making of such Non-Base Rate Loan (or the continuation of a Non-Base Rate Loan or the conversion of a Base Rate Loan to a Non-Base Rate Loan) and ending 1, <2, >3, or, in the case of Non-Base Rate Loans that bear interest based on the LIBOR Rate, 6 months thereafter; provided, that (a) interest shall accrue at the applicable rate based upon the Non-Base Rate from and including the first day of each Interest Period to, but excluding, the day on which any Interest Period expires, (b) any Interest Period that would end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (c) with respect to an 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), the Interest Period shall end on the last Business Day of the calendar month that is 1, <2, >3 or 6 months after the date on which the Interest Period began, as applicable, and (d) Borrowers may not elect an Interest Period which will end after the Maturity Date.

Inventory” means inventory (as that term is defined in the Code or, to the extent applicable, the PPSA).

Inventory Reserves” means, as of any date of determination, without duplication, (a) Landlord Reserves in respect of Inventory, and (b) those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(e), to establish and maintain (including reserves for slow moving Inventory and Inventory shrinkage) with respect to Eligible Inventory, the Maximum Revolver Amount<, the UK Maximum Revolver Amount> or the Canadian Maximum Revolver Amount, including based on the results of appraisals.

Investment” means, with respect to any Person, any investment by such Person in any other Person (including Affiliates) in the form of loans, guarantees, advances, capital contributions (excluding (a) commission, travel, and similar advances to officers and employees of such Person made in the ordinary course of business, and (b) bona fide accounts receivable arising in the ordinary course of business), or acquisitions of Indebtedness, Equity Interests, or all or substantially all of the assets of such other Person (or of any division or business line of such other Person), and any other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustment for increases or decreases in value, or write-ups, write-downs, or write-offs with respect to such Investment.

IRC” means the Internal Revenue Code of 1986, as amended.

 

48


ISP” means, with respect to any Letter of Credit, the International Standby Practices 1998 (International Chamber of Commerce Publication No. 590) and any version or revision thereof accepted by an Issuing lender for use.

Issuer Document” means, with respect to any Letter of Credit, a letter of credit application, a letter of credit agreement, or any other document, agreement or instrument entered into (or to be entered into) by a Borrower in favor of an Issuing Lender and relating to such Letter of Credit.

Issuing Lender” means US Issuing Lender<, UK Issuing Lender> and/or Canadian Issuing Lender, as the context requires.

<“ITA” means the Income Tax Act 2007 (UK).>

Joinder” means a joinder agreement substantially in the form of Exhibit J-1 to this Agreement.

Joint Book Runner” has the meaning set forth in the preamble to this Agreement.

Joint Lead Arranger” has the meaning set forth in the preamble to this Agreement.

Landlord Reserve” means, as to each location at which a Borrower has Inventory or books and records located and as to which a Collateral Access Agreement has not been received by Agent, a reserve deemed necessary or reasonably desirable by Agent in an amount up to 3 months’ rent, storage charges, fees or other amounts under the lease or other applicable occupancy agreement relative to such Borrower’s right to occupy such location or, if greater and Agent so elects in its Permitted Discretion, the number of months’ rent, storage charges, fess or other amounts for which the landlord, bailee, warehouseman or other property owner will have, under applicable law, a Lien in the Inventory of such Borrower to secure the payment of such amounts under the lease or other applicable agreement relative to such Borrower’s right to occupy such location.

Lender” has the meaning set forth in the preamble to this Agreement, shall include each Issuing Lender and each Swing Lender, and shall also include any other Person made a party to this Agreement pursuant to the provisions of Section 13.1 of this Agreement and “Lenders” means each of the Lenders or any one or more of them.

Lender Group” means each of the Lenders (including each Issuing Lender and each Swing Lender) and Agent, or any one or more of them< and, solely for purposes of the definition of “Lender Group Expenses”, any UK security trustee appointed under a UK Security Document and any receiver, attorney, manager, agent or other person appointed by such UK security trustee>.

Lender Group Expenses” means all (a) out-of-pocket costs or expenses (including taxes and insurance premiums) required to be paid by any Loan Party or its Subsidiaries under any of the Loan Documents that are paid, advanced, or incurred by <the Lender Group>Agent, (b) reasonable, documented and out-of-pocket fees or charges paid or

 

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incurred by Agent in connection with the Lender Group’s transactions with each Loan Party and its Subsidiaries under any of the Loan Documents, including, photocopying, notarization, couriers and messengers, telecommunication, public record searches, filing fees, recording fees, publication, real estate surveys, real estate title policies and endorsements, and environmental audits, (c) Agent’s documented and out-of-pocket customary fees and charges imposed or incurred in connection with any background checks or OFAC/PEP searches related to any Loan Party or its Subsidiaries, (d) Agent’s documented and customary fees and charges (as adjusted from time to time) with respect to the disbursement of funds (or the receipt of funds) to or for the account of any Borrower (whether by wire transfer or otherwise), together with any out-of-pocket costs and expenses incurred in connection therewith, (e) customary charges imposed or incurred by Agent resulting from the dishonor of checks payable by or to any Loan Party, (f) reasonable, documented out-of-pocket costs and expenses paid or incurred by <the Lender Group>Agent to correct any default or enforce any provision of the Loan Documents, or during the continuance of an Event of Default, in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated, (g) field examination, appraisal, and valuation fees and expenses of Agent related to any field examinations, appraisals, or valuation to the extent of the fees and charges (and up to the amount of any limitation) provided in Section 2.10 of this Agreement, (h) Agent’s <and Lenders’ >reasonable, documented and out-of-pocket costs and expenses (including reasonable and documented outside counsel attorneys’ fees and expenses) relative to third party claims or any other lawsuit or adverse proceeding paid or incurred, whether in enforcing or defending the Loan Documents or otherwise in connection with the transactions contemplated by the Loan Documents, Agent’s Liens in and to the Collateral, or the Lender Group’s relationship with any Loan Party or any of its Subsidiaries, (i) Agent’s reasonable, documented and out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and due diligence expenses) incurred in advising, structuring, drafting, reviewing, administering (including travel, meals, and lodging), syndicating (including reasonable costs and expenses relative to CUSIP, DXSyndicate, SyndTrak or other communication costs incurred in connection with a syndication of the loan facilities), or amending, waiving, or modifying the Loan Documents, and (j) Agent’s reasonable, documented and out-of-pocket costs and expenses (including reasonable and documented attorneys, accountants, consultants, and other advisors fees and expenses) incurred in terminating or defending the Loan Documents, irrespective of whether a lawsuit or other adverse proceeding is brought, or in taking any enforcement action or any Remedial Action with respect to the Collateral, and (k) Agent’s and each Lender’s reasonable, documented and out-of-pocket costs and expenses (including reasonable and documented attorneys, accountants, consultants, and other advisors fees and expenses) incurred in <terminating, >enforcing (including attorneys, accountants, consultants, and other advisors fees and expenses incurred in connection with a “workout,” a “restructuring,” or an Insolvency Proceeding concerning any Loan Party or any of its Subsidiaries or in exercising rights or remedies under the Loan Documents)<, or defending> the Loan Documents, irrespective of whether a lawsuit or other adverse proceeding is brought, or in taking any enforcement action or any Remedial Action with respect to the Collateral<.>. The Loan Parties’ obligation to reimburse Agent and Lenders for attorneys’ fees shall be limited to the reasonable and documented attorneys’ fees and expenses of one primary counsel to Agent, one local counsel to Agent in each reasonably necessary jurisdiction, and one or more additional counsel to Lenders pursuant to clause (k) or if one or more conflicts of interest arise.

 

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Lender Group Representatives” has the meaning specified therefor in Section 17.9 of this Agreement.

Lender-Related Person” means, with respect to any Lender, such Lender, together with such Lender’s Affiliates, officers, directors, employees, attorneys, and agents.

Letter of Credit” means a US Letter of Credit<, UK Letter of Credit> and/or a Canadian Letter of Credit, as the context requires.

Letter of Credit Collateralization” means with respect to the US Letter of <Credit Obligations, UK Letter of >Credit Obligations or the Canadian Letter of Credit Obligations, as applicable, either (a) providing cash collateral in the Applicable Currency (pursuant to documentation reasonably satisfactory to Agent (including that Agent has a first priority perfected Lien in such cash collateral), including provisions that specify that the applicable Letter of Credit Fees and all commissions, fees, charges and expenses provided for in Section 2.11A(k) and Section 2.11B(k) <and Section 2.11C(k) >of this Agreement (including any fronting fees) will continue to accrue while the applicable Letters of Credit are outstanding) to be held by Agent for the benefit of the applicable Revolving Lenders in an amount equal to 105% of the then existing US Letter of <Credit Usage, 120% of the then existing UK Letter of >Credit Usage and 105% of the then existing Canadian Letter of Credit Usage, (b) delivering to Agent documentation executed by all beneficiaries under the applicable Letters of Credit, in form and substance reasonably satisfactory to Agent and the applicable Issuing Lender, terminating all of such beneficiaries’ rights under the Letters of Credit, or (c) providing Agent with a standby letter of credit, in form and substance reasonably satisfactory to Agent in the Applicable Currency, from a commercial bank acceptable to Agent (in its sole discretion) in an amount equal to 105% of the then existing US Letter of Credit Usage<, 120% of the then existing UK Letter of Credit Usage> and 105% of the then existing Canadian Letter of Credit Usage (it being understood that the applicable Letter of Credit Fee and all fronting fees set forth in this Agreement will continue to accrue while the applicable Letters of Credit are outstanding and that any such fees that accrue must be an amount that can be drawn under any such standby letter of credit).

Letter of Credit Disbursement” means a US Letter of Credit Disbursement<, UK Letter of Credit Disbursement> and/or a Canadian Letter of Credit Disbursement, as the context requires.

Letter of Credit Exposure” means the US Letter of Credit Exposure<, UK Letter of Credit Exposure> and/or the Canadian Letter of Credit Exposure, as the context requires.

Letter of Credit Fee” has the meaning specified therefor in Section 2.6(b).

Letter of Credit Indemnified Costs” means any and all claims, demands, suits, actions, investigations, proceedings, liabilities, fines, costs, penalties, and damages, and all reasonable documented fees and disbursements of attorneys or experts, and all other costs and expenses actually incurred in connection therewith or in connection with the enforcement of the indemnification set forth in Section 2.11A or Section 2.11B <or Section 2.11C >(as and when they are incurred and irrespective of whether suit is brought), which may be incurred by or awarded against any Letter of Credit Related Person (other than Taxes, which shall be governed by Section 16) in connection with any Letter of Credit.

 

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Letter of Credit Related Person” means each member of the Lender Group (including each of each Issuing Lender and its branches, Affiliates, and correspondents and Canadian Underlying Issuer and its branches, Affiliates and correspondents) and each such Person’s respective directors, officers, employees, attorneys and agents.

Letter of Credit Sublimit” means $<60,000,000>25,000,000 .

Letter of Credit Usage” means the US Letter of Credit Usage<, the UK Letter of Credit Usage> and/or the Canadian Letter of Credit Usage, as the context requires.

Leverage Ratio” means, as of any date of determination the result of (a) the amount of Parent’s Funded Indebtedness as of such date, to (b) Parent’s EBITDA for the 4 quarter period ended as of such date.

LIBOR Rate” means the rate per annum as published by ICE Benchmark Administration Limited (or any successor page or other commercially available source as the Agent may designate from time to time) as of 11:00 a.m., London time, two Business Days prior to the commencement of the requested Interest Period <(or, with respect to Obligations denominated in Sterling, as of >11:00 a.m., London time, on the <Business Day on which the requested Interest Period commences) >for deposits in the Applicable Currency, for a term, and in an amount, comparable to the Interest Period and the amount of the Non-Base Rate Loan requested (whether as an initial Non-Base Rate Loan or as a continuation of a Non-Base Rate Loan or as a conversion of a Base Rate Loan to a Non-Base Rate Loan) by Borrowers in accordance with the Agreement (and, if any such published rate is below zero, then such rate shall be deemed to be zero), which determination shall be made by Agent and shall be conclusive in the absence of manifest error.

Lien” means any mortgage, standard security, deed of trust, pledge, hypothecation, assignment, assignation, charge, deposit arrangement, encumbrance, easement, lien (statutory or other), security interest, or other security arrangement and any other preference, priority, or preferential arrangement of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.

Line Cap” means, as of any date of determination, the lesser of (a) the Maximum Revolver Amount, and (b) the sum of the Dollar Equivalent of the Canadian Borrowing Base (calculated without giving effect to clause (<d) of the definition thereof) plus the UK Borrowing Base >(calculated without giving effect to <clause (d>e) of the definition thereof) plus the US Borrowing Base as of such date of determination.

Loan” means any Revolving Loan, Swing Loan or Extraordinary Advance made (or to be made) hereunder.

 

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Loan Account” means the US Loan Account<, UK Loan Account> and/or the Canadian Loan Account, as the context requires.

Loan Documents” means this Agreement, the Control Agreements, the US Copyright Security Agreement, the Canadian Copyright Security Agreement, any Borrowing Base Certificate, the Fee Letter, the US Security Agreement, the Canadian <Security Documents, the UK >Security Documents, the Intercompany Subordination Agreement, any Issuer Documents, the Letters of Credit, the Mortgages, the US Patent Security Agreement, the US Trademark Security Agreement, the Canadian Patent Security Agreement, the Canadian Trademark Security Agreement, any security trust deed, any guaranties executed by any Loan Party, any note or notes executed by Borrowers in connection with this Agreement and payable to any member of the Lender Group, and any other instrument or agreement entered into, now or in the future, by any Loan Party or any of its Subsidiaries and any member of the Lender Group in connection with this Agreement (but specifically excluding Bank Product Agreements).

Loan Parties” means the US Loan Parties<, UK Loan Parties> and/or the Canadian Loan Parties, as the context requires.

Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to time.

Material Adverse Effect” means (a) a material adverse effect in the business, property, or condition (financial or otherwise) of the Loan Parties and their Subsidiaries, taken as a whole, (b) a material impairment of the Loan Parties’ and their Subsidiaries’ ability to perform their obligations under the Loan Documents to which they are parties or of the Lender Group’s ability to enforce the Obligations or (other than as a result of an action taken or not taken that is solely in the control of Agent) realize upon the Collateral, or (c) a material impairment of the enforceability or priority of Agent’s Liens with respect to all or a material portion of the Collateral (other than as a result of an action taken or not taken that is solely in the control of Agent).

<“Material Contract>” means, with respect to any <Person, (a) each contract or agreement to which such Person or any of its Subsidiaries is a party involving aggregate consideration payable to or by such Person or such Subsidiary of $45,000,000 or more (other than purchase orders in the ordinary course of the business of such Person or such Subsidiary and other than contracts that by their terms may be terminated by such Person or Subsidiary in the ordinary course of its business upon less than 60 days’ notice without penalty or premium), and (b) all other contracts or agreements, the loss of >which could reasonably be expected to result in a Material Adverse Effect<. >

Maturity Date” means <April 30>December 14, <2023>2026.

Maximum Revolver Amount” means $<750,000,000>500,000,000 , decreased by the amount of reductions in the Revolver Commitments made in accordance with Sections 2.4(c) of this Agreement, and increased by the amount of any Increase made in accordance with Section 2.14 of this Agreement.

 

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Moody’s” has the meaning specified therefor in the definition of Domestic Cash Equivalents.

Mortgages” means, individually and collectively, one or more mortgages, standard securities, deeds of trust, or deeds to secure debt, executed and delivered by a Loan Party or one of its Subsidiaries in favor of Agent, in form and substance reasonably satisfactory to Agent, that encumber the Real Property Collateral.

Multiemployer Plan” means any multiemployer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA with respect to which any Loan Party or ERISA Affiliate has an obligation to contribute or has any liability, contingent or otherwise or could be assessed withdrawal liability assuming a complete withdrawal from any such multiemployer plan.

Net Cash Proceeds” means, with respect to the Permitted Sale Leaseback, the amount of cash proceeds received (directly or indirectly) from time to time (whether as initial consideration or through the payment of deferred consideration) by or on behalf of such Loan Party or such Subsidiary, in connection therewith after deducting therefrom only (i) the amount of any Indebtedness secured by any Permitted Lien on any asset (other than (A) Indebtedness owing to Agent or any Lender under this Agreement or the other Loan Documents and (B) Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection with such sale or disposition, (ii) reasonable fees, commissions, and expenses related thereto and required to be paid by such Loan Party or such Subsidiary in connection with such sale or disposition, (iii) taxes paid or payable to any taxing authorities by such Loan Party or such Subsidiary in connection with such sale or disposition, in each case to the extent, but only to the extent, that the amounts so deducted are, at the time of receipt of such cash, actually paid or payable to a Person that is not an Affiliate of any Loan Party or any of its Subsidiaries, and are properly attributable to such transaction, and (iv) all amounts that are set aside as a reserve (A) for adjustments in respect of the purchase price of such assets, (B) for any liabilities associated with such sale or casualty, to the extent such reserve is required by GAAP, and (C) for the payment of unassumed liabilities relating to the assets sold or otherwise disposed of at the time of, or within 30 days after, the date of such sale or other disposition, to the extent that in each case the funds described above in this clause (iv) are (x) deposited into escrow with a third party escrow agent or set aside in a separate Deposit Account that is subject to a Control Agreement in favor of Agent, and (y) if applicable, paid to Agent as a prepayment of the applicable Obligations in accordance with Section 2.4(e) of this Agreement at such time when such amounts are no longer required to be set aside as such a reserve.

Net Recovery Percentage” means, as of any date of determination, the percentage of the book value of Borrowers’ Inventory that is estimated to be recoverable in an orderly liquidation of such Inventory net of all associated costs and expenses of such liquidation, such percentage to be determined as to each category of Inventory and to be as specified in the most recent Acceptable Appraisal of Inventory.

Non-Base Rate Deadline” has the meaning specified therefor in Section 2.12(b)(i) of this Agreement.

 

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Non-Base Notice” means a written notice in the form of Exhibit L-1 to this Agreement.

Non-Base Option” has the meaning specified therefor in Section 2.12(a) of this Agreement.

Non-Base Rate” means the LIBOR Rate; provided that with respect to Canadian Obligations denominated in Canadian Dollars, Non-Base Rate means the CDOR Rate.

Non-Base Rate Loan” means each portion of a Revolving Loan that bears interest at a rate determined by reference to the applicable Non-Base Rate.

Non-Base Rate Margin” has the meaning set forth in the definition of Applicable Margin.

Non-Consenting Lender” has the meaning specified therefor in Section 14.2(a) of this Agreement.

Non-Defaulting Lender” means each Lender other than a Defaulting Lender.

Notification Event” means (a) the occurrence of a “reportable event” described in Section 4043 of ERISA for which the 30-day notice requirement has not been waived by applicable regulations issued by the PBGC, (b) the withdrawal of any Loan Party or ERISA Affiliate from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, (e) the imposition of a Lien pursuant to the IRC or ERISA in connection with any Pension Plan, (f) the partial or complete withdrawal of any Loan Party or ERISA Affiliate from a Multiemployer Plan (other than any withdrawal that would not constitute a Material Adverse Effect), (g) the insolvency of a Multiemployer Plan under ERISA, (h) the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC of proceedings to terminate or to appoint a trustee to administer a Multiemployer Plan under ERISA, (i) any Pension Plan being in “at risk status” within the meaning of IRC Section 430(i), (j) any Multiemployer Plan being in “endangered status” or “critical status” within the meaning of IRC Section 432(b), (k) with respect to any Pension Plan, any Loan Party or ERISA Affiliate incurring a substantial cessation of operations within the meaning of ERISA Section 4062(e), (l) the failure of any Pension Plan to meet the minimum funding standards within the meaning of the IRC or ERISA (including Section 412 of the IRC or Section 302 of ERISA), in each case, whether or not waived, (m) the filing of an application for a waiver of the minimum funding standards within the meaning of the IRC or ERISA including Section 412 of the IRC or Section 302 of ERISA) with respect to any Pension Plan, (n) the failure to make by its due date a required payment or contribution with respect to any Pension Plan or Multiemployer Plan, or (o) any event that results in or could reasonably be expected to result in a liability by a Loan Party pursuant to Title I of ERISA or the excise tax provisions of the IRC relating to Employee Plans or any event that results in or could reasonably be expected to result in a liability to any

 

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Loan Party pursuant to Title IV of ERISA (other than the payment of premiums to the be PBGC in the ordinary course of business).

Obligations” means any or all of the US Obligations<, the UK Obligations> and/or the Canadian Obligations, as the context requires.

OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.

Originating Lender” has the meaning specified therefor in Section 13.1(e) of this Agreement.

Other Taxes” means all present or future stamp, court, excise, value added, or 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.

Overadvance” means a US Overadvance<, UK Overadvance> and/or a Canadian Overadvance, as the context requires.

Parent” has the meaning specified therefor in the preamble to this Agreement.

Participant” has the meaning specified therefor in Section 13.1(e) of this Agreement.

Participant Register” has the meaning set forth in Section 13.1(i) of this “Pass-Agreement.

Through Tax Liabilities” means with respect to any Borrower that is a disregarded entity or partnership for U.S. federal income tax purposes for the applicable taxable period, the amount of state, local and federal income tax paid or required to be paid under applicable law by the owner or owners of any Equity Interest in such Borrower on taxable income earned by such Borrower, assuming the highest marginal income tax rate for federal, state and local (for the state or states in which any owner of an Equity Interest in such Borrower is liable for income taxes with respect to such income) income tax purposes, after taking into account any deductions or credits that are eligible to offset such taxable income and that are available to such owner of such Equity Interest from or through such Borrower, including deductions and credits for prior taxable periods after the date hereof.

Patriot Act” has the meaning specified therefor in Section 4.13 of this Agreement.

 

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Payment Conditions” means, at the time of determination with respect to a proposed payment to fund a Specified Transaction, that:

(a) no Default or Event of Default then exists or would arise as a result of the consummation of such Specified Transaction,

 

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(b) either

(i) Aggregate Excess Availability after giving effect to such proposed payment and Specified Transaction, in each case, is not less than (A) in the case of a Specified Transaction consisting of a Permitted Acquisition or prepayment of Indebtedness, the greater of (1) <17.5>15.0% of the Line Cap, and (2) $<80,000,000>60,000,000 , and (B) in the case of a Specified Transaction consisting of a Restricted Payment, a Permitted Investment of the type described in clause (s) of the definition thereof or a Permitted Intercompany Advance of the type described in clause (e) of the definition thereof, the greater of (1) 20.0% of the Line Cap, and (2) $<90,000,000>70,000,000 , or

(ii) both (A) the Fixed Charge Coverage Ratio of the Loan Parties and their Subsidiaries is equal to or greater than 1.00:1.00 for the trailing 4 quarter period most recently ended for which financial statements are required to have been delivered to Agent pursuant to Schedule 5.1 to this Agreement (calculated on a pro forma basis as if such proposed payment (other than consideration paid for a Permitted Acquisition) is a Fixed Charge made on the last day of such 4 quarter period (it being understood that such proposed payment (other than consideration paid for a Permitted Acquisition) shall also be a Fixed Charge made on the last day of such 4 quarter period for purposes of calculating the Fixed Charge Coverage Ratio under this clause (ii) for any subsequent proposed payment to fund a <Specific>Specified Transaction)), and (B) Aggregate Excess Availability after giving effect to such proposed payment and Specified Transaction, in each case, is not less than (1) in the case of a Specified Transaction consisting of a Permitted Acquisition or prepayment of Indebtedness, the greater of (X) <12.5>10.0% of the Line Cap, and (Y) $<60,000,000>40,000,000 , or (2) in the case of a Specified Transaction consisting of a Restricted Payment, a Permitted Investment of the type described in clause (s) of the definition thereof or a Permitted Intercompany Advance of the type described in clause (e) of the definition thereof, the greater of (X) 15% of the Line Cap, and (Y) $<70,000,000>60,000,000 , and

(c) Administrative Borrower has delivered a certificate to Agent certifying that all conditions described in clauses (a) and (b) above have been satisfied.

“Payment Recipient” has the meaning specified therefor in Section 17.19 of this Agreement.

PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.

Pension Plan” means any Employee Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV or Section 302 of ERISA or Sections 412 or 430 of the IRC sponsored, maintained, or contributed to by any Loan Party or ERISA Affiliate or to which any Loan Party or ERISA Affiliate has any liability, contingent or otherwise.

<“Pensions Regulator” means the body corporate called the Pensions Regulator established under Part I of the Pensions Act 2004 (UK).>

 

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Perfection Certificate” means a certificate in the form of Exhibit P-1 to this Agreement.

Permitted Acquisition” means any Acquisition made by Parent or a Subsidiary that is a Loan Party so long as:

(a) the proposed Acquisition is consensual,

(b) the Payment Conditions are satisfied,

(c) <with respect to any Permitted Acquisition (or series of related Permitted Acquisitions) for which the purchase consideration payable (including deferred payment obligations) in connection therewith exceeds $100,000,000 in the aggregate, Borrowers have provided Agent with its due diligence package relative to the proposed Acquisition, including forecasted balance sheets, profit and loss statements, and cash flow statements of the Person or assets to be acquired, all prepared on a basis consistent with such Person’s (or assets’) historical financial statements, together with appropriate supporting details and a statement of underlying assumptions for the one year period following the date of the proposed Acquisition, on a quarter by quarter basis), in form and substance (including as to scope and underlying assumptions) reasonably satisfactory to Agent,>

(c) [reserved],

(d) with respect to any Permitted Acquisition (or series of related Permitted Acquisitions) for which the purchase consideration payable (including deferred payment obligations) in connection therewith exceeds $100,000,000 in the aggregate, Borrowers have provided Agent with written notice of the proposed Acquisition at least 15 Business Days prior to the anticipated closing date of the proposed Acquisition <and, not later than five Business Days prior to the anticipated closing date of the proposed Acquisition, copies of the acquisition agreement and other material documents relative to the proposed Acquisition, which agreement and documents must be reasonably acceptable to>(or such lesser number of days as is agreed to by Agent), and

(e) the assets being acquired (other than a de minimis amount of assets in relation to Parent’s and its Subsidiaries’ total assets), or the Person whose Equity Interests are being acquired, are useful in or engaged in, as applicable, the business of the Loan Parties and their Subsidiaries or a business reasonably related thereto.

Permitted Discretion” means a determination made in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.

Permitted Dispositions” means:

(a) sales, abandonment, or other dispositions of Equipment that is substantially worn, damaged, or obsolete or no longer used or useful in the ordinary course of business and leases or subleases of Real Property not useful in the conduct of the business of the Loan Parties and their Subsidiaries,

 

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(b) sales of Inventory to buyers in the ordinary course of business,

(c) the use or transfer of money or Cash Equivalents in a manner that is not prohibited by the terms of this Agreement or the other Loan Documents,

(d) the licensing, on a non-exclusive basis, of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business,

(e) the granting of Permitted Liens,

(f) the sale or discount, in each case without recourse, of accounts receivable (other than Eligible Accounts) arising in the ordinary course of business, but only in connection with the compromise or collection thereof,

(g) any involuntary loss, damage or destruction of property,

(h) any involuntary condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, or confiscation or requisition of use of property,

(i) the leasing or subleasing of assets of any Loan Party or its Subsidiaries in the ordinary course of business,

(j) the sale or issuance of Equity Interests (other than Disqualified Equity Interests) of Parent,

(k) (i) the lapse of registered patents, trademarks, copyrights and other intellectual property of any Loan Party or any of its Subsidiaries to the extent not economically desirable in the conduct of its business, or (ii) the abandonment of patents, trademarks, copyrights, or other intellectual property rights in the ordinary course of business so long as (in each case under clauses (i) and (ii)), (A) with respect to copyrights, such copyrights are not material revenue generating copyrights, and (B) such lapse is not materially adverse to the interests of the Lender Group,

(l) the making of Restricted Payments that are expressly permitted to be made pursuant to this Agreement,

(m) the making of Permitted Investments,

(n) so long as no Event of Default would immediately result therefrom, transfers of assets (including Equity Interests) (i) from any US Loan Party or any of its Subsidiaries (other than any US Borrower) to a US Loan Party (other than Parent), (ii) from any Canadian Loan Party or any of its Subsidiaries (other than any Canadian Borrower) to a Canadian Loan Party<,> and (iii<) from any UK Loan Party or any of its Subsidiaries (other than any UK Borrower) to a UK Loan Party and (iv>) from any Subsidiary of any Loan Party that is not a Loan Party to a Loan Party or any other Subsidiary of any Loan Party,

 

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(o) transfers of properties that have been subject to a casualty event, to the insurer of such property or its designee as part of an insurance settlement,

(p) so long as no Event of Default has occurred and is continuing or would immediately result therefrom, sales, transfers or other dispositions by the Borrowers or any of their Subsidiaries of Equity Interest in joint ventures held by the Borrowers or any of their Subsidiaries,

(q) the Permitted Sale Leaseback,

(r) dispositions of Equipment or Real Property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property, or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property; provided, that to the extent the property being transferred constitutes Collateral, such replacement property shall constitute Collateral,

(s) dispositions of assets acquired by the Loan Parties and their Subsidiaries pursuant to a Permitted Acquisition consummated within 12 months of the date of the proposed disposition so long as (i) the consideration received for the assets to be so disposed is at least equal to the fair market value of such assets, (ii) the assets to be so disposed are not necessary or economically desirable in connection with the business of the Loan Parties and their Subsidiaries, and (iii) the assets to be so disposed are readily identifiable as assets acquired pursuant to the subject Permitted Acquisition,

(t) the disposition of Equity Interests in Dura Products, Inc., to another Loan Party; and

(u) sales or other dispositions of assets not otherwise permitted in clauses (a) through (t) above (other than sales or other dispositions of Accounts in connection with securitization or factoring arrangements), so long as (i) no Event of Default has occurred and is continuing or would immediately result therefrom, (ii) each such sale or disposition is in an arm’s-length transaction and the applicable Loan Party or its Subsidiary receives at least the fair market value of the assets so disposed, (iii) the consideration received by the applicable Loan Party or its Subsidiary consists of at least 75% cash and Cash Equivalents and is paid at the time of the closing of such sale or disposition, and (iv) the aggregate amount of the cash and non-cash proceeds received from all assets sold or disposed of pursuant to this clause (<t>u ) shall not exceed $<25,000,000>75,000,000 (or, so long as after giving effect to such proposed sale or other disposition, no Covenant Trigger Event shall have occurred and be continuing (and no Covenant Testing Period is otherwise then in effect), $<50,000,000>100,000,000 ) in any fiscal year of Parent (for this purpose, using the fair market value of property other than cash);

provided, that if, as of any date of determination, sales or dispositions by the Loan Parties during the period of time from the first day of the month in which such date of determination occurs until such date of determination, either individually or in the aggregate, involve $5,000,000 or more of assets included in the Borrowing Base (based on the fair market value of the assets so disposed) (the “Threshold Amount”), then Borrowers shall have, prior to consummation of the sale or disposition that causes the assets included in the Borrowing that are disposed of during such period to exceed the Threshold Amount, delivered to Agent an updated Borrowing Base Certificate that reflects the removal of the applicable assets from the Borrowing Base.

 

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Permitted Indebtedness” means:

(a) Indebtedness in respect of the Obligations other than Bank Product Obligations,

(b) Indebtedness as of the Closing Date set forth on Schedule 4.14 to this Agreement and any Refinancing Indebtedness in respect of such Indebtedness,

(c) Permitted Purchase Money Indebtedness and any Refinancing Indebtedness in respect of such Indebtedness,

(d) Indebtedness arising in connection with the endorsement of instruments or other payment items for deposit,

(e) Indebtedness consisting of (i) unsecured guarantees incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds, bid bonds, appeal bonds, completion guarantee and similar obligations; (ii) unsecured guarantees arising with respect to customary indemnification obligations to purchasers in connection with Permitted Dispositions; and (iii) unsecured guarantees with respect to Indebtedness of any Loan Party or one of its Subsidiaries, to the extent that the Person that is obligated under such guaranty could have incurred such underlying Indebtedness,

(f) unsecured Indebtedness of any Loan Party that is incurred on the date of the consummation of a Permitted Acquisition solely for the purpose of consummating such Permitted Acquisition so long as (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) such unsecured Indebtedness is not incurred for working capital purposes, (iii) such unsecured Indebtedness does not mature prior to the date that is 6 months after the Maturity Date, (iv) such unsecured Indebtedness does not amortize until 6 months after the Maturity Date, (v) such unsecured Indebtedness does not provide for the payment of interest thereon in cash or Cash Equivalents prior to the date that is 6 months after the Maturity Date, and (vi) such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably satisfactory to Agent and is otherwise on terms and conditions (including economic terms and absence of covenants) reasonably satisfactory to Agent,

(g) Acquired Indebtedness of any Person that becomes a Subsidiary after the date hereof, incurred prior to the time such Person becomes a Subsidiary, that is not created in contemplation of, or in connection with such Person becoming a Subsidiary, and that is not assumed or guaranteed by any other Subsidiary, in an amount not to exceed $<25,000,000>100,000,000 outstanding at any one time,

(h) Indebtedness incurred in the ordinary course of business under performance, surety, statutory, or appeal bonds,

(i) Indebtedness owed to any Person providing property, casualty, liability, or other insurance to any Loan Party or any of its Subsidiaries, so long as the amount of such

 

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Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year,

(j) the incurrence by any Loan Party or its Subsidiaries of Indebtedness under Hedge Agreements that is incurred for the bona fide purpose of hedging the interest rate, commodity, or foreign currency risks associated with such Loan Party’s or such Subsidiary’s operations and not for speculative purposes,

(k) Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, stored value cards, commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”), or Cash Management Services,

(l) unsecured Indebtedness of any Loan Party owing to employees, former employees, former officers, directors, or former directors (or any spouses, ex-spouses, or estates of any of the foregoing) incurred in connection with the repurchase or redemption by such Loan Party of the Equity Interests of Parent that has been issued to such Persons, so long as (i) no Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, (ii) the aggregate amount of all such Indebtedness outstanding at any one time does not exceed $10,000,000, and (iii) such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions reasonably acceptable to Agent,

(m) contingent liabilities in respect of any indemnification obligation, adjustment of purchase price, non-compete, or similar obligation of any Loan Party incurred in connection with the consummation of one or more Permitted Acquisitions,

(n) Indebtedness composing Permitted Investments, including Permitted Intercompany Advances,

(o) unsecured Indebtedness incurred in respect of netting services, overdraft protection, and other like services, in each case, incurred in the ordinary course of business,

(p) unsecured Indebtedness of any Loan Party or its Subsidiaries in respect of Earn-Outs owing to sellers of assets or Equity Interests to such Loan Party or its Subsidiaries that is incurred in connection with the consummation of one or more Permitted Acquisitions so long as such unsecured Indebtedness is on terms and conditions reasonably acceptable to Agent,

(q) Indebtedness in an aggregate outstanding principal amount not to exceed <$50,000,000>the greater of (i) $100,000,000 or (ii) 10% of the consolidated total assets (calculated in accordance with GAAP) of the Parent and its Subsidiaries, as reflected on the most recent financial statements the Agent has received pursuant to Section 5.1 of this Agreement, at the time that such Indebtedness is incurred, in either case at any time outstanding for all Subsidiaries of Parent that are not Loan Parties; provided, that such Indebtedness is not directly or indirectly recourse to any of the Loan Parties or of their respective assets,

 

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(r) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case, on Indebtedness that otherwise constitutes Permitted Indebtedness,

(s) Indebtedness of the Borrowers (and guarantees thereof by Guarantors) evidenced by term loans, bonds, debentures, notes or other similar instruments (including extensions, refinancings, refundings, replacements and renewals of thereof); provided that, (i) the scheduled maturity date of such Debt shall not be earlier than one hundred eighty days after the Maturity Date, (ii) no Event of Default shall have occurred and be continuing or shall result therefrom, (iii) at the time of incurrence thereof and after giving pro forma effect thereto and the use of proceeds thereof, the Leverage Ratio, calculated on a pro forma basis as of the most recently ended fiscal quarter or year, as applicable, for which Agent has received financial statements pursuant to Section 5.1 on or prior to the incurrence of such Indebtedness, is no greater than 4.00 to 1.00 (or 5.00 to 1.00, but only if at the time of incurrence thereof and after giving pro forma effect thereto and the use of proceeds thereof, the Fixed Charge Coverage Ratio of the Loan Parties and their Subsidiaries, calculated on a pro forma basis as of the most recently ended fiscal quarter or year, as applicable, for which Agent has received financial statements pursuant to Section 5.1 on or prior to the incurrence of such Indebtedness, is equal to or greater than <1.5>1.00:1.00), (iv) with respect to any secured Indebtedness incurred pursuant to this clause (s), the Liens securing such Indebtedness shall be subordinated and junior in priority to Agent’s Liens pursuant to an intercreditor agreement in form and substance reasonably satisfactory to Agent, (v) such Indebtedness shall not have any amortization or other requirement to purchase, redeem, retire, defease or otherwise make any payment in respect thereof, other than at scheduled maturity thereof and mandatory prepayments which are customary with respect to such type of Indebtedness and that are triggered upon change in control and sale of all or substantially all assets and certain other material asset sales, and (vi) the agreements and instruments governing such Indebtedness shall not contain (A) any affirmative or negative covenants that are, taken as a whole, materially more restrictive than those set forth in this Agreement; provided that the inclusion of any financial covenant that is customary with respect to such type of Indebtedness and that is not found in this Agreement shall not be deemed to be more restrictive for purposes of this clause (A), (B) any restrictions on the ability of Parent or any Subsidiary of the Parent to guarantee the Obligations, provided that a requirement that any such Subsidiary also guarantee such Indebtedness shall not be deemed to be a violation of this clause (B), (C) any restrictions on the ability of Parent or any Subsidiary of Parent to pledge Collateral as collateral security for the Obligations, or (D) any restrictions on the ability of Parent or any Subsidiary of Parent to incur Indebtedness under this Agreement or any other Loan Document other than a restriction as to the outstanding principal amount of such Indebtedness in excess of 110% of the sum of aggregate Maximum Revolver Amount plus the Available Increase Amount, in each case, as in effect on the initial issuance date of such Indebtedness,

(t) Indebtedness incurred in connection with Permitted Sale Leaseback transaction,

(u) Indebtedness consisting of deferred compensation, severance, pension or health and welfare retirement benefits for current and former employees incurred in the ordinary course of business and consistent with past practices,

 

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(v) indemnities given and warranties issued in the ordinary course of business and consistent with past practices, and

(w) any other Indebtedness incurred by any Loan Party or any of its Subsidiaries in an aggregate outstanding amount not to exceed the greater of (a) $50,000,000 at any one time, and (b) 1.5% of the consolidated total assets (calculated in accordance with GAAP) of the Parent and its Subsidiaries< at the time of the incurrence of>, as reflected on the most recent financial statements the Agent has received pursuant to Section 5.1 of this Agreement, at the time that such Indebtedness is incurred; provided, that any with respect to any secured Indebtedness incurred pursuant to this clause (w), the holder of such secured Indebtedness (or an agent or representative in respect thereof) shall have entered into an intercreditor agreement in form and substance reasonably satisfactory to Agent.

Permitted Intercompany Advances” means loans and other Investments made by (a) a Loan Party to another Loan Party (other than to Parent, and other than by a US Loan Party to a Canadian Loan Party< or a UK Loan Party>), (b) a Subsidiary of a Loan Party that is not a Loan Party to another Subsidiary of a Loan Party that is not a Loan Party, (c) a Subsidiary of a Loan Party that is not a Loan Party to a Loan Party, so long as the parties thereto are party to the Intercompany Subordination Agreement, (d) a US Loan Party to a Canadian Loan Party< or a UK Loan Party>, so long as the aggregate amount of all such loans and other Investments (by type, not by the borrower) does not exceed $15,000,000 outstanding at any one time, and (e) a Loan Party to a Subsidiary of a Loan Party that is not a Loan Party or a US Loan Party to a Canadian Loan Party <or a UK Loan Party >(in excess of the amount described in the foregoing clause (d)) so long as the Payment Conditions have been satisfied.

Permitted Investments” means:

(a) Investments in cash and Cash Equivalents,

(b) Investments in negotiable instruments deposited or to be deposited for collection in the ordinary course of business,

(c) advances made in connection with purchases of goods or services in the ordinary course of business,

(d) Investments received in settlement of amounts due to any Loan Party or any of its Subsidiaries effected in the ordinary course of business or owing to any Loan Party or any of its Subsidiaries as a result of Insolvency Proceedings involving an account debtor or upon the foreclosure or enforcement of any Lien in favor of a Loan Party or its Subsidiaries,

(e) Investments owned by any Loan Party or any of its Subsidiaries on the Closing Date and set forth on Schedule P-1 to this Agreement,

(f) guarantees permitted under the definition of Permitted Indebtedness,

(g) Permitted Intercompany Advances,

 

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(h) Equity Interests or other securities acquired in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to a Loan Party or its Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security for any such Indebtedness or claims,

(i) deposits of cash made in the ordinary course of business to secure performance of operating leases,

(j) (i) non-cash loans and advances to employees, officers, and directors of a Loan Party or any of its Subsidiaries for the purpose of purchasing Equity Interests in Parent so long as the proceeds of such loans are used in their entirety to purchase such Equity Interests in Parent, and (ii) loans and advances to employees and officers of a Loan Party or any of its Subsidiaries in the ordinary course of business for any other business purpose and in an aggregate amount not to exceed $10,000,000 at any one time,

(k) Permitted Acquisitions,

(l) Investments in the form of capital contributions and the acquisition of Equity Interests made by any US Loan Party in any other US Loan Party (other than capital contributions to or the acquisition of Equity Interests of Parent) or by any Canadian Loan Party in any other Canadian Loan Party< or by any UK Loan Party in any other UK Loan Party>,

(m) Investments resulting from entering into (i) Bank Product Agreements, or (ii) agreements relative to obligations permitted under clause (j) of the definition of Permitted Indebtedness,

(n) equity Investments by any Loan Party in any Subsidiary of such Loan Party which is required by law to maintain a minimum net capital requirement or as may be otherwise required by applicable law,

(o) Investments held by a Person acquired in a Permitted Acquisition to the extent that such Investments were not made in contemplation of or in connection with such Permitted Acquisition and were in existence on the date of such Permitted Acquisition,

(p) Investments in the form of Restricted Payments permitted by Section 6.7 of this Agreement,

(q) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposits and UCC Article 4 customary trade arrangements with customers consistent with past practices,

(r) so long as no Event of Default has occurred and is continuing or would result therefrom, any other Investments in an aggregate amount not to exceed $<15,000,000>30,000,000 (or, so long as after giving effect to such proposed Investment, no Covenant Trigger Event shall have occurred and be continuing (and no Covenant Testing Period is otherwise then in effect), $<25,000,000) during the term of this Agreement>50,000,000) from and after the First Amendment Effective Date,

 

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(s) other Investments (other than Acquisitions) so long as the Payment Conditions are satisfied, and

(t) Investments consisting of non-cash consideration received in connection with Permitted Dispositions, so long as the non-cash consideration received in connection with any Permitted Disposition does not exceed 25% of the total consideration received in connection with such Permitted Disposition.

Permitted Liens” means:

(a) Liens granted to, or for the benefit of, Agent to secure the Obligations,

(b) Liens for unpaid taxes, assessments, or other governmental charges or levies that either (i) are not yet delinquent, or (ii) do not have priority over Agent’s Liens and the underlying taxes, assessments, or charges or levies are the subject of Permitted Protests,

(c) judgment Liens arising solely as a result of the existence of judgments, orders, requirements to pay issued by a Canadian Governmental Authority or awards that do not constitute an Event of Default under Section 8.3 of this Agreement,

(d) Liens set forth on Schedule P-2 to this Agreement; provided, that to qualify as a Permitted Lien, any such Lien described on Schedule P-2 to this Agreement shall only secure the Indebtedness that it secures on the Closing Date and any Refinancing Indebtedness in respect thereof,

(e) the interests of lessors under operating leases and non-exclusive licensors under license agreements,

(f) purchase money Liens on fixed assets or the interests of lessors under Capital Leases to the extent that such Liens or interests secure Permitted Purchase Money Indebtedness and so long as (i) such Lien attaches only to the fixed asset purchased or acquired and the proceeds thereof, and (ii) such Lien only secures the Indebtedness that was incurred to acquire the fixed asset purchased or acquired or any Refinancing Indebtedness in respect thereof,

(g) Liens arising by operation of law in favor of warehousemen, landlords, carriers, mechanics, materialmen, laborers, or suppliers (or deposits made to obtain the release of such Liens), incurred or made in the ordinary course of business and not in connection with the borrowing of money, and which Liens either (i) are for sums not yet delinquent, or (ii) are the subject of Permitted Protests,

(h) Liens arising by operation of law in connection with Parent’s and its Subsidiaries obligations in connection with worker’s compensation or other unemployment insurance, old age benefits, social security obligations, taxes, assessments, statutory obligations or other like charges,

(i) Liens arising by operation of law in connection with Parent’s and its Subsidiaries obligations in connection with the making or entering into of bids, tenders, trade contracts, or leases in the ordinary course of business and not in connection with the borrowing of money,

 

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(j) Liens on amounts deposited to secure Parent’s and its Subsidiaries reimbursement obligations with respect to surety or appeal bonds obtained in the ordinary course of business,

(k) encumbrances, easements, restrictions, servitudes, permits, conditions, covenants, exceptions or reservations in any property or rights-of-way of a Person for the purpose of roads, pipelines, transmission lines, transportation lines, distribution lines, removal of gas, oil, coal, metals, steam, minerals, timber or other natural resources, and other like purposes, or for the joint or common use of real property, rights-of-way, facilities or equipment, or defects, irregularity and deficiencies in title of any property or rights-of-way; provided, that in each case the obligation secured is not Indebtedness and is not overdue or, if overdue, is being contested in good faith by appropriate proceedings and reserves in conformity with GAAP have been provided therefore,

(l) non-exclusive licenses of patents, trademarks, copyrights, and other intellectual property rights in the ordinary course of business,

(m) Liens that are replacements of Permitted Liens to the extent that the original Indebtedness is the subject of permitted Refinancing Indebtedness and so long as the replacement Liens only encumber those assets that secured the original Indebtedness,

(n) rights of setoff or bankers’ liens upon deposits of funds in favor of banks or other depository institutions, solely to the extent incurred in connection with the maintenance of such Deposit Accounts in the ordinary course of business,

(o) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under the definition of Permitted Indebtedness,

(p) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods,

(q) Liens solely on any cash earnest money deposits made by a Loan Party or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition,

(r) Liens assumed by any Loan Party or its Subsidiaries in connection with a Permitted Acquisition that secure Acquired Indebtedness that is Permitted Indebtedness,

(s) Liens securing Indebtedness permitted pursuant to clauses (s) and (t) of the definition of Permitted Indebtedness; provided, that any such Liens shall be subordinated and junior in priority to Agent’s Liens, pursuant to an intercreditor agreement in form and substance reasonably satisfactory to Agent,

 

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(t) good faith deposits, pledges or other Liens in connection with (or to obtain or support letters of credit in connection with) bids, performance bonds, contracts or leases to which the Borrowers or their Subsidiaries are a party in the ordinary course of business; provided, that in each case the obligation secured is not Indebtedness and is not overdue or, if overdue, is being contested in good faith by appropriate proceedings and reserves in conformity with GAAP have been provided therefor,

(u) rights reserved to or vested in any municipality or governmental, statutory or public authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to terminate such right, power, franchise, grant, license or permit or to purchase, condemn, expropriate or recapture or to designate a purchaser of any of the property of a Person,

(v) rights reserved to or vested in any municipality or governmental, statutory or public authority to control, regulate or use any property of a Person,

(w) zoning, planning and Environmental Laws and ordinances and municipal regulations, which do not, in any case, materially detract from the value of such property or impair the use thereof in the ordinary course of business, <and>

(x) Liens on Equity Interests in joint ventures held by any Loan Party provided such joint venture is not and is not required to be a Loan Party, and

(y) (x) other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $<10,000,000>50,000,000 .

Permitted Protest” means the right of any Loan Party or any of its Subsidiaries to protest any Lien (other than any Lien that secures the Obligations), taxes (other than payroll taxes or taxes that are the subject of a United States federal tax lien or Canadian equivalent, including a requirement to pay issued by a Canadian Governmental Authority), or rental payment; provided, that (a) a reserve with respect to such obligation is established on such Loan Party’s or its Subsidiaries’ books and records in such amount as is required under GAAP, and (b) any such protest is instituted promptly and prosecuted diligently by such Loan Party or its Subsidiary, as applicable, in good faith.

Permitted Purchase Money Indebtedness” means, as of any date of determination, Indebtedness (other than the Obligations, but including Capitalized Lease Obligations), incurred after the Closing Date and at the time of, or within 20 days after, the acquisition of any fixed assets for the purpose of financing all or any part of the acquisition cost thereof, in an aggregate principal amount outstanding at any one time not <in excess of $25,000,000.>to exceed the greater of (i) $50,000,000 or (ii) 1.5% of the consolidated total assets (calculated in accordance with GAAP) of the Parent and its Subsidiaries, as reflected on the most recent financial statements the Agent has received pursuant to Section 5.1 of this Agreement, at the time that such Indebtedness is incurred.

Permitted Sale Leaseback” means an arrangement, directly or indirectly, with any Person relating to the Real Estate located at 7402 North Eldridge Parkway, Houston, Texas

 

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77041, whereby the applicable Borrower sells or transfers such property to a Person and thereafter rents or leases such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred; provided that (a) no Event of Default shall have occurred or be continuing or would result therefrom, (b) no less than 75% of the aggregate consideration received in such Permitted Sale Leaseback shall be in cash and Cash Equivalents, and the Net Cash Proceeds therefrom shall be remitted to Agent in accordance with Section 2.4(e) hereof, (c) the applicable Borrower shall receive at least fair market value (as determined by such Borrower in good faith) for any property disposed of in such Permitted Sale Leaseback, (d) such transaction is pursuant to a bona-fide, arms-length transaction with a Person that is not an Affiliate of any Loan Party, and (e) the applicable Loan Party uses its commercially reasonable efforts to insure that the Agent obtains a Collateral Access Agreement with respect to such parcel of Real Property leased back; provided, that if such Collateral Access Agreement is not obtained, Agent may establish a Landlord Reserve with respect to such Real Property.

Person” means natural persons, corporations, limited liability companies, limited partnerships, general partnerships, limited liability partnerships, joint ventures, trusts, land trusts, business trusts, or other organizations, irrespective of whether they are legal entities, and governments and agencies and political subdivisions thereof.

Platform” has the meaning specified therefor in Section 17.9(c) of this Agreement.

Post-Increase Revolver Lenders” has the meaning specified therefor in Section 2.14 of this Agreement.

PPSA” means the Personal Property Security Act (Alberta) and any successor statutes, together with regulations thereunder, as in effect from time to time; provided that, if attachment, perfection or priority of Agent’s Liens in any Collateral are governed by the personal property security laws of any jurisdiction in Canada other than Alberta (including the Civil Code of Québec), PPSA shall mean those personal property security laws in such other jurisdiction for the purposes of the provisions hereof relating to such attachment, perfection or priority and for definitions related to such provision, and any successor statutes thereto, together with any regulations thereunder, in each case as in effect from time to time. References to sections of the PPSA shall be construed to also refer to any successor sections.

Pre-Increase Revolver Lenders” has the meaning specified therefor in Section 2.14 of this Agreement.

Projections” means Parent’s forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared on a basis consistent with Parent’s historical financial statements, together with appropriate supporting details and a statement of underlying assumptions.

<“Protected Party” means a Lender which is or will be subject to any liability or required to make any payment for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Loan Document.>

 

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Pro Rata Share” means, as of any date of determination:

(a) with respect to a Lender’s obligation to make all or a portion of the US Revolving Loans, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect to the US Revolving Loans, and with respect to all other computations and other matters related to the US Revolver Commitments or the US Revolving Loans, the percentage obtained by dividing (i) the US Revolving Loan Exposure of such Lender, by (ii) the aggregate US Revolving Loan Exposure of all Lenders,

(b) with respect to a Lender’s obligation to make all or a portion of the Canadian Revolving Loans, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect to the Canadian Revolving Loans, and with respect to all other computations and other matters related to the Canadian Revolver Commitments or the Canadian Revolving Loans, the Dollar Equivalent of the percentage obtained by dividing (i) the Canadian Revolving Loan Exposure of such Lender by (ii) the aggregate Canadian Revolving Loan Exposure of all Lenders,

(c) <with respect to a Lender’s obligation to make all or a portion of the UK Revolving Loans, with respect to such Lender’s right to receive payments of interest, fees, and principal with respect to the UK Revolving Loans, and with respect to all other computations and other matters related to the UK Revolver Commitments or the UK Revolving Loans, the Dollar Equivalent of the percentage obtained by dividing (i) the UK Revolving Loan Exposure of such Lender by (ii) the aggregate UK Revolving Loan Exposure of all Lenders,>[reserved],

(d) with respect to a Lender’s obligation to participate in the US Letters of Credit, with respect to such Lender’s obligation to reimburse US Issuing Lenders, and with respect to such Lender’s right to receive payments of the applicable Letter of Credit Fees, and with respect to all other computations and other matters related to the US Letters of Credit, the percentage obtained by dividing (i) the US Revolving Loan Exposure of such Lender, by (ii) the aggregate US Revolving Loan Exposure of all Lenders; provided, that if all of the US Revolving Loans have been repaid in full and all US Revolver Commitments have been terminated, but US Letters of Credit remain outstanding, Pro Rata Share under this clause shall be the percentage obtained by dividing (A) the US Letter of Credit Exposure of such Lender, by (B) the US Letter of Credit Exposure of all Lenders,

(e) with respect to a Lender’s obligation to participate in the Canadian Letters of Credit, with respect to such Lender’s obligation to reimburse Canadian Issuing Lender, and with respect to such Lender’s right to receive payments of the applicable Letter of Credit Fees, and with respect to all other computations and other matters related to the Canadian Letters of Credit, the Dollar Equivalent of the percentage obtained by dividing (i) the Canadian Revolving Loan Exposure of such Lender by (ii) the aggregate Canadian Revolving Loan Exposure of all Lenders; provided, that if all of the Canadian Revolving Loans have been repaid in full and all Canadian Revolver Commitments have been terminated, but Canadian Letters of Credit remain outstanding, Pro Rata Share under this clause shall be the percentage obtained by dividing (A) the Canadian Letter of Credit Exposure of such Lender, by (B) the Canadian Letter of Credit Exposure of all Lenders,

 

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(f) <with respect to a Lender’s obligation to participate in the UK Letters of Credit, with respect to such Lender’s obligation to reimburse UK Issuing Lender, and with respect to such Lender’s right to receive payments of the applicable Letter of Credit Fees, and with respect to all other computations and other matters related to the UK Letters of Credit, the Dollar Equivalent of the percentage obtained by dividing (i) the UK Revolving Loan Exposure of such Lender by (ii) the aggregate UK Revolving Loan Exposure of all Lenders; provided, that if all of the UK Revolving Loans have been repaid in full and all UK Revolver Commitments have been terminated, but UK Letters of Credit remain outstanding, Pro Rata Share under this clause shall be the percentage obtained by dividing (A) the UK Letter of Credit Exposure of such Lender, by (B) the UK Letter of Credit Exposure of all Lenders, and>

(f) [reserved], and

(g) with respect to all other matters and for all other matters as to a particular Lender (including the indemnification obligations arising under Section 15.7 of this Agreement), the Dollar Equivalent of the percentage obtained by dividing (i) the Revolving Loan Exposure of such Lender, by (ii) the aggregate Revolving Loan Exposure of all Lenders, in any such case as the applicable percentage may be adjusted by assignments permitted pursuant to Section 13.1; provided, that if all of the Loans have been repaid in full and all Commitments have been terminated, Pro Rata Share under this clause shall be the percentage obtained by dividing (A) the Letter of Credit Exposure of such Lender, by (B) the Letter of Credit Exposure of all Lenders.

“Projections” means Parent’s forecasted (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared on a basis consistent with Parent’s historical financial statements, together with appropriate supporting details and a statement of underlying assumptions.

Protective Advances” means the US Protective Advances<, UK Protective Advances> and/or the Canadian Protective Advances, as the context requires.

Public Lender” has the meaning specified therefor in Section 17.9(c) of this Agreement.

“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).

“QFC Credit Support” has the meaning specified therefor in Section 17.18 of this Agreement.

Qualified Equity Interests” means and refers to any Equity Interests issued by Parent (and not by one or more of its Subsidiaries) that is not a Disqualified Equity Interest.

 

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<“Qualifying Lender” means:>

(a) <a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is:>

(i) <a Lender:>

(A) <which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Loan Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or>

(B) <in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made, and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or>

(ii) <a Lender which is:>

(A) <a company resident in the United Kingdom for United Kingdom tax purposes;>

(B) <a partnership, each member of which is:>

i. <a company so resident in the United Kingdom; or>

ii. <a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or>

(C) <a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or>

(iii) <a Treaty Lender; or>

(b) <a Lender which is a building society (as defined for the purposes of section 880 of the ITA) making an advance under a Loan Document.>

Real Property” means any estates or interests in real <or Scottish heritable >property now owned or hereafter acquired by any Loan Party or one of its Subsidiaries and the improvements thereto.

Real Property Collateral” means (a) the Real Property identified on Schedule R-1 to this Agreement, and (b) any Real Property hereafter acquired by any Loan Party or one of its Subsidiaries with a fair market value in excess of $12,500,000.

 

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Receivable Reserves” means, as of any date of determination, without duplication, those reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(e), to establish and maintain (including Landlord Reserves for books and records locations and reserves for rebates, discounts, warranty claims, and returns) with respect to the Eligible Accounts, the Maximum Revolver Amount<, the UK Maximum Revolver Amount> or the Canadian Maximum Revolver Amount.

Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

Reference Period” has the meaning set forth in the definition of EBITDA.

“Reference Time” with respect to any setting of the then-current Benchmark means (a) if such Benchmark is USD LIBOR, 11:00 a.m., London time, on the day that is two (2) Business Days preceding the date of such setting, and (b) if such Benchmark is not USD LIBOR, the time determined by Agent in its reasonable discretion.

Refinancing Indebtedness” means refinancings, renewals, or extensions of Indebtedness so long as:

(a) such refinancings, renewals, or extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed, or extended, other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto,

(b) such refinancings, renewals, or extensions do not result in a shortening of the final stated maturity or the average weighted maturity (measured as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or extended, nor are they on terms or conditions that, taken as a whole, are or could reasonably be expected to be materially adverse to the interests of the Lenders,

(c) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension must include subordination terms and conditions that are at least as favorable to the Lender Group as those that were applicable to the refinanced, renewed, or extended Indebtedness,

(d) the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person that is liable on account of the Obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended,

(e) if the Indebtedness that is refinanced, renewed or extended was unsecured, such refinancing, renewal or extension shall be unsecured, and

(f) if the Indebtedness that is refinanced, renewed, or extended was secured (i) such refinancing, renewal, or extension shall be secured by substantially the same or less collateral as secured such refinanced, renewed or extended Indebtedness on terms no less favorable to Agent or the Lender Group and (ii) the Liens securing such refinancing, renewal or extension shall not have a priority more senior than the Liens securing such Indebtedness that is refinanced, renewed or extended.

 

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Register” has the meaning set forth in Section 13.1(h) of this Agreement.

Registered Loan” has the meaning set forth in Section 13.1(h) of this Agreement.

Related Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered, advised or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers, advises or manages a Lender.

“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.

Remedial Action” means all actions required by Environmental Laws taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate, or in any way address Hazardous Materials in the indoor or outdoor environment, (b) prevent or minimize a release or threatened release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (c) restore or reclaim natural resources or the environment, (d) perform any pre-remedial studies, investigations, or post-remedial operation and maintenance activities, or (e) conduct any other actions with respect to Hazardous Materials required by Environmental Laws.

Replacement Lender” has the meaning specified therefor in Section 2.13(b) of this Agreement.

Report” has the meaning specified therefor in Section 15.16 of this Agreement. “Required Lenders” means, at any time, Lenders having or holding more than 50% of the sum of the aggregate Dollar Equivalent Revolving Loan Exposure of all Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Required Lenders, and (ii) at any time there are two or more Lenders (who are not Affiliates of one another or Defaulting Lenders), “Required Lenders” must include at least two Lenders (who are not Affiliates of one another).

Reserves” means, as of any date of determination, Inventory Reserves, Receivables Reserves, Bank Product Reserves, Canadian Priority Payables Reserves and those other reserves that Agent deems necessary or appropriate, in its Permitted Discretion and subject to Section 2.1(e), to establish and maintain (including reserves with respect to (a) sums that any Loan Party or its Subsidiaries are required to pay under any Section of this Agreement or any other Loan Document (such as taxes, assessments, insurance premiums, or, in the case of leased assets, rents or other amounts payable under such leases) and has failed to pay, (b) currency fluctuations, and (c) amounts owing by any Loan Party or its Subsidiaries to any Person to the extent secured by a Lien on, or trust or deemed trust over, any of the Collateral (other than a Permitted Lien), which Lien, trust or deemed trust, in the Permitted Discretion of Agent likely

 

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would have a priority superior to the Agent’s Liens (such as Liens, trusts or deemed trusts in favor of landlords, warehousemen, carriers, mechanics, materialmen, laborers, or suppliers, or Liens or trusts or deemed trusts for ad valorem, excise, sales, or other taxes where given priority under applicable law) in and to such item of the Collateral<, (d) amounts that could become due to the administrator of any Insolvency Proceeding of a UK Loan Party which would have priority over Agent’s fixed or floating charge on Collateral, and (e) amounts that could become due to any unsecured creditors in any Insolvency Proceeding of a UK Loan Party which would have priority over Agent’s fixed or floating charge on the Collateral but in any event not to exceed any statutory maximum prescribed amount from time to time)> with respect to the US <Borrowing Base, the UK >Borrowing Base, the Canadian Borrowing Base, the Maximum Revolver Amount<, the UK Maximum Revolver Amount> or the Canadian Maximum Revolver Amount.

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

Restricted Payment” means (a) any declaration or payment of any dividend or the making of any other payment or distribution, directly or indirectly, on account of Equity Interests issued by Parent or any of its Subsidiaries (including any payment in connection with any merger, amalgamation or consolidation involving Parent) or to the direct or indirect holders of Equity Interests issued by Parent or any of its Subsidiaries in their capacity as such (other than dividends or distributions payable in Qualified Equity Interests issued by Parent or any of its Subsidiaries), or (b) any purchase, redemption, making of any sinking fund or similar payment, or other acquisition or retirement for value (including in connection with any merger, amalgamation or consolidation involving Parent) any Equity Interests issued by Parent or any of its Subsidiaries, or (c) any making of any payment to retire, or to obtain the surrender of, any outstanding warrants, options, or other rights to acquire Equity Interests of Parent now or hereafter outstanding.

Revaluation Date” means (a) with respect to any Revolving Loan denominated in Canadian Dollars< or Sterling>, each of the following: (i) each date of a Borrowing of such Revolving Loan, (ii) each date of a continuation of such Revolving Loan pursuant to Section 2.12, and (iii) such additional dates as Agent shall determine or the Required Lenders shall require, (b) with respect to any Letter of Credit denominated in Canadian Dollars< or Sterling>, each of the following: (i) each date of issuance of such Letter of Credit, (ii) each date of an amendment of such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by an Issuing Lender under such Letter of Credit, and (iv) such additional dates as Agent or an Issuing Lender shall determine or the Required Lenders shall require, and (c) with respect to any other Obligations denominated in Canadian Dollars< or Sterling>, each date as Agent shall determine unless otherwise prescribed in this Agreement or any other Loan Documents.

Revolver Commitment” means the US <Revolver Commitments, the UK >Revolver Commitments and/or the Canadian Revolver Commitments, as the context requires.

Revolver Usage” means the US Revolver Usage<, the UK Revolver Usage> and/or the Canadian Revolver Usage, as the context requires.

 

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Revolving Lender” means a Lender that has a Revolving Loan Exposure or Letter of Credit Exposure.

Revolving Loan Exposure” means the US Revolving Loan Exposure<, the UK Revolver Exposure> and/or the Canadian Revolving Loan Exposure, as the context requires.

Revolving Loans” means a US <Revolving Loan, a UK >Revolving Loan and/or a Canadian Revolving Loan, as the context requires.

Sanctioned Entity” means (a) a country or territory or a government of a country or territory, (b) an agency of the government of a country or territory, (c) an organization directly or indirectly controlled by a country or territory or its government, or (d) a Person resident in or determined to be resident in a country or territory, in each case of clauses (a) through (d) that is a target of Sanctions, including a target of any country or territory sanctions program administered and enforced by OFAC or other relevant Governmental Authority.

Sanctioned Person” means, at any time (a) any Person named on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC, OFAC’s consolidated Non-SDN list or any other Sanctions-related list maintained by any Governmental Authority, (b) a Person or legal entity that is a target of Sanctions, (c) any Person operating, organized or resident in a Sanctioned Entity, or (d) any Person directly or indirectly owned or controlled (individually or in the aggregate) by or acting on behalf of any such Person or Persons described in clauses (a) through (c) above.

Sanctions” means individually and collectively, respectively, any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing or future executive order, (b) the United Nations Security Council, (c) the Government of Canada, (d) the European Union or any European Union member state, (e) Her Majesty’s Treasury of the United Kingdom, or (f) any other Governmental Authority with jurisdiction over any Loan Party or any of their respective Subsidiaries or Affiliates.

S&P” has the meaning specified therefor in the definition of Domestic Cash Equivalents.

SEC” means the United States Securities and Exchange Commission and any successor thereto.

Securities Account” means a securities account (as that term is defined in the Code).

Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

 

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Security Agreement” means the US Security Agreement<, one of the UK Security Documents> and/or the Canadian Security Agreement.

Settlement” has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.

Settlement Date” has the meaning specified therefor in Section 2.3(e)(i) of this Agreement.

“SOFR ” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“SOFR Average” means the compounded average of SOFR over a rolling calendar day period of thirty (30) days published by the Federal Reserve Bank of New York (or a successor administrator of the SOFR Average).

Solvent” means, with respect to any Person as of any date of determination, that (a) at fair valuations, the sum of such Person’s debts (including contingent liabilities) is less than all of such Person’s assets, (b) such Person is not engaged or about to engage in a transaction for which the remaining assets of such Person are unreasonably small in relation to the transaction or for which the property remaining with such Person is an unreasonably small capital, (c) such Person has not incurred and does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise), and (d) such Person is “solvent” or not “insolvent” or “deemed unable to pay its debts”, as applicable within the meaning given those terms and similar terms under applicable laws relating to bankruptcy, insolvency, fraudulent transfers and conveyances. For purposes of subclauses (a) to (c) of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).

Specified Event of Default” means an Event of Default under any of Sections 8.1, 8.2(a)(i) (solely as the result of a failure to deliver any of the items described in, and in accordance with, clauses (a), (b), (c) or (d) of Schedule 5.1), 8.2(a)(iii), 8.4<,> or 8.5< or 8.12>.

Specified State” means any one of (a) the United States<,> and (b) Canada< and (c) the United Kingdom>.

 

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Specified Transaction” means, any Permitted Acquisition, prepayment of Indebtedness, Permitted Intercompany Advance of the type described in clause (e) of the definition thereof, Permitted Investment of the type described in clause (s) of the definition thereof or Restricted Payment (or declaration of any prepayment or Restricted Payment).

Spot Rate” means, for a currency, the rate determined by Agent to be the rate quoted by Wells Fargo acting in such capacity as the spot rate for the purchase by Wells Fargo of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. (New York time) on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided, that Agent may obtain such spot rate from another financial institution designated by Agent if Wells Fargo acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.

Standard Letter of Credit Practice” means, for each Issuing Lender, any domestic or foreign law or letter of credit practices applicable in the city in which such Issuing Lender issued the applicable Letter of Credit or, for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Letter of Credit, as the case may be, in each case, (a) which letter of credit practices are of banks that regularly issue letters of credit in the particular city, and (b) which laws or letter of credit practices are required or permitted under ISP or UCP, as chosen in the applicable Letter of Credit.

<“Sterling” or “£” means the lawful currency of the United Kingdom.>

<“Sterling Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in Sterling as determined by Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date or such other date as determined by Agent) for the purchase of Sterling with Dollars.>

Subsidiary” of a Person means a corporation, company, partnership, limited liability company, unlimited liability company or other entity in which that Person directly or indirectly owns or controls the Equity Interests having ordinary voting power to elect a majority of the Board of Directors of such corporation, partnership, limited liability company, or other entity.

Supermajority Lenders” means, at any time, Revolving Lenders having or holding more than 66 2/3% of the aggregate Dollar Equivalent of Revolving Loan Exposure of all Revolving Lenders; provided, that (i) the Revolving Loan Exposure of any Defaulting Lender shall be disregarded in the determination of the Supermajority Lenders, and (ii) at any time there are two or more Revolving Lenders (who are not Affiliates of one another), “Supermajority Lenders” must include at least two Revolving Lenders (who are not Affiliates of one another or Defaulting Lenders).

“Supported QFC” has the meaning specified therefor in Section 17.18 of this Agreement.

 

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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 1a(47) of the Commodity Exchange Act.

Swing Lender” means the US Swing Lender<, the UK Swing Lender> and/or the Canadian Swing Lender, as the context requires.

Swing Loan” means the US Swing Loan<, the UK Swing Loan> and/or the Canadian Swing Loan, as the context requires.

Swing Loan Exposure” means the US Swing Exposure<, the UK Swing Loan Exposure> and/or the Canadian Swing Exposure, as the context requires.

“Tax Lender” has the meaning specified therefor in Section 14.2(a) of this Agreement.

Taxes” means any taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect thereto.

“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Term SOFR Notice” means a notification by Agent to the Lenders and Administrative Borrower of the occurrence of a Term SOFR Transition Event.

“Term SOFR Transition Event” means the determination by Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as applicable, has previously occurred resulting in the replacement of the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12(d)(iii) with a Benchmark Replacement the Unadjusted Benchmark Replacement component of which is not Term SOFR.

<“Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document is either:>

(a) <a company resident in the United Kingdom for United Kingdom tax purposes; or>

(b) <a partnership each member of which is:>

(i) <a company so resident in the United Kingdom; or>

 

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(ii) <a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or>

(c) <a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.>

<“Tax Credit” means a credit against, relief or remission for, or repayment of, any Taxes.>

<“Tax Deduction” means a deduction or withholding for or on account of Taxes from a payment under a Loan Document.>

Tax Lender” has the meaning specified therefor in Section 14.2(a) of this Agreement.

<“Tax Payment” means either the increase in a payment made by a Loan Party to a Lender under Section 16.5 or a payment under Section 16.6.>

<“Treaty” has the meaning specified therefore in the definition of “Treaty State”.>

<“Treaty Lender” means a Lender which:>

(a) <is treated as a resident of a Treaty State for the purposes of the Treaty; >

(b) <does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loans is effectively connected; and>

 

(c) <qualifies for full exemption from UK income tax on payments of interest to or for the account of the Lender or Participant pursuant to any Loan Document, subject to the completion of necessary procedural formalities.>

<“Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.>

UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any version or revision thereof accepted by an Issuing Lender for use.

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 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.

 

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“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

<“UK Availability” means, as of any date of determination, the Dollar Equivalent amount that UK Borrowers are entitled to borrow as UK Revolving Loans under Section 2.1(c) of the Agreement (after giving effect to the then outstanding UK Revolver Usage, Canadian Revolver Usage and US Revolver Usage).>

<“UK Bank Product” means any >one or more of the following <financial products or accommodations extended to a UK Loan Party by a Bank Product Provider: (a) credit cards (including commercial credit cards (including so-called “purchase cards”, “procurement cards” or “P-cards”)), (b) credit card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.>

<“UK Bank Product Agreements” means those agreements entered into >from time to time by <a UK Loan Party with a Bank Product Provider in connection with the obtaining of any of the UK Bank Products.>

<“UK Bank Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by UK Loan Parties to any Bank Product Provider pursuant to or evidenced by a UK Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all UK Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the UK Bank Products provided by such Bank Product Provider to UK Loan Parties; provided, in order for any item described in clauses (a), (b), or (c) above, as applicable, to constitute “UK Bank Product Obligations”, if the applicable Bank Product Provider is any Person other than Wells Fargo or its Affiliates, then the applicable UK Bank Product must have been provided on or after the Closing Date and Agent shall have received a Bank Product Provider Agreement within 10 days after the date of the provision of the applicable UK Bank Product to a UK Loan Party.>

<“UK Bank Product Reserves>” means, as of any date of determination<, those reserves, without duplication of any other reserve, that Agent deems necessary or appropriate in its Permitted Discretion to establish (based upon the Bank Product Providers’ reasonable determination of the liabilities and obligations of UK Loan Parties in respect of UK Bank Product Obligations) in respect of UK Bank Products then provided or outstanding.>

<“UK Borrowers” has the meaning specified therefor in the preamble to the Agreement.>

 

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<“UK Borrowing” means a borrowing consisting of UK Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by UK Swing Lender in the case of a UK Swing Loan, or by Agent in the case of a UK Extraordinary Advance.>

<“UK Borrowing Base” means, as of any date of determination, the Dollar Equivalent amount of:>

(a) <90% of the amount of Eligible Accounts of each UK Loan Party owing by Account Debtors that are rated (or whose parent is rated) Baa3 or higher from Moody’s or BBB- or higher from S&P, less the amount, if any, of the UK Dilution Reserve attributable to such Eligible Accounts, plus>

(b) <85% of the amount of Eligible Accounts of each UK Loan Party owing by Account Debtors other than those described in the foregoing clause (a), less the amount, if any, of the UK Dilution Reserve attributable to such Eligible Accounts, plus >

(c) <the lesser of (i) the product of 70% multiplied by the value (calculated at the lower of cost or market on a basis consistent with UK Loan Parties’ historical accounting practices) of Eligible Finished Goods Inventory of each UK Loan Party at such time, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent Acceptable Appraisal of Inventory, multiplied by the value (calculated at the lower of cost or market on a basis consistent with UK Loan Parties’ historical accounting practices) of Eligible Finished Goods Inventory of each UK Loan Party (such determination may be made as to different categories of Eligible Finished Goods Inventory based upon the Net Recovery Percentage applicable to such categories) at such time, plus>

(d) <the amount by which the US Borrowing Base at such time exceeds the sum of US Revolver Usage plus Canadian Revolver Usage predicated on >clause (d) of the definition of Canadian Borrowing Base <at such time,  minus>

(e) <without duplication, the aggregate amount of Receivables Reserves, Bank Product Reserves, Inventory Reserves, and other Reserves, in each case if any, established >by Agent from time to time <under Section 2.1(e) of this Agreement.>

<“UK Designated Account” means the UK Deposit Account of a UK Borrower identified on Schedule D-2 to the Agreement (or such other Deposit Account of a UK Borrower located at UK Designated Account Bank that has been designated as such, in writing, by a UK Borrower to Agent).>

<“UK Designated Account Bank” has the meaning specified therefor in Schedule D-2 to the Agreement (or such other bank that is located within the United Kingdom that has been designated as such, in writing, by a UK Borrower to Agent).>

<“UK 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 (a) the Dollar Equivalent amount of bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to UK Borrowers’ Accounts during such period, by (b) the Dollar Equivalent amount of UK Borrowers’ billings with respect to Accounts during such period.>

 

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<“UK Dilution Reserve” means, as of any date of determination, an amount, without duplication of any other reserve, sufficient to reduce the advance rate against Eligible Accounts of UK Loan Parties by 1 percentage point for each percentage point by which Dilution is in excess of 5%.>

<“UK Extraordinary Advances>” has the meaning specified therefor in Section <2.3><(d)(iii) of the Agreement.>

<“UK Floating Rate” means, for any day, the rate of interest equal to the LIBOR Rate then in effect for delivery for a one month period, plus 1.00 percentage point. >

<“UK Guarantor” means (a) each Subsidiary of Parent (other than an Immaterial Subsidiary) organized under the laws of or incorporated in any jurisdiction in the United Kingdom, that is or becomes a guarantor of all or any part of the Foreign Obligations and (b) each other Person that guaranties all or a part of the Foreign Obligations pursuant to the UK Security Documents.>

<“UK Hedge Obligations” means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of any UK Loan Party arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.>

<“UK Issuing Lender” means Wells Fargo and up to three other Lenders designated in writing to, and consented to by, the Agent (such consent not to be unreasonably withheld, conditioned or delayed) by the Administrative Borrower that agree, in such Lender’s sole discretion, to become a UK Issuing Lender for the purpose of issuing UK Letters of Credit. >

<“UK Letter of Credit” means a letter of credit (>as that term is defined in <the Code) issued by UK Issuing Lender for the account of a UK Borrower.>

<“UK Letter of Credit Disbursement” means a payment made by UK Issuing Lender pursuant to a UK Letter of Credit.>

<“UK Letter of Credit Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the UK Letter of Credit Usage on such date.>

<“UK Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn amount of all outstanding UK Letters of Credit.>

<“UK Loan Account>” has the meaning specified therefor in Section <2.9 ><of the Agreement.>

 

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<“UK Loan Party” means any UK Borrower or any UK Guarantor organized under the laws of the United Kingdom.>

<“UK Maximum Revolver Amount” means $40,000,000, decreased by the amount of reductions in the UK Revolver Commitments made in accordance with Sections 2.4(c) of the Agreement.>

<“UK Non-Bank Lender” means where a Lender becomes a party after the Closing Date, an assignee which gives a Tax Confirmation in the Assignment and Acceptance which it executes on becoming a party.>

<“UK Obligations” means (a) all loans (including UK Revolving Loans (inclusive of UK Extraordinary Advances and UK Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), premiums, liabilities (including all amounts charged to the UK Loan Account pursuant to the Agreement), obligations (including indemnification obligations) of any UK Loan Party, fees (including the fees provided for in the Fee Letter) of any UK Loan Party, Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding) of any UK Loan Party, guaranties of any UK Loan Party, and all covenants and duties of any other kind and description owing by any UK Loan Party arising out of, under, pursuant to, in connection with, or evidenced by the Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any UK Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, (b) all debts, liabilities, or obligations (including reimbursement and indemnification obligations, irrespective of whether contingent) owing by any UK Borrower or any other UK Loan Party to UK Issuing Lender now or hereafter arising from or in respect of a UK Letters of Credit, and (c) all UK Bank Product Obligations; provided, that UK Obligations shall not include Excluded Swap Obligations. Without limiting the generality of the foregoing, the UK Obligations under the Loan Documents include the obligation to pay (i) the principal of the UK Revolving Loans, (ii) interest accrued on the UK Revolving Loans, (iii) the amount necessary to reimburse UK Issuing Lender for amounts paid or payable pursuant to UK Letters of Credit, (iv) Letter of Credit commissions, charges, expenses, and fees, in each case in respect of UK Letters of Credit, (v) Lender Group Expenses of any UK Loan Party, (vi) fees payable by any UK Loan Party under the Agreement or any of the other Loan Documents, and (vii) indemnities and other amounts payable by any UK Loan Party under any Loan Document (excluding Excluded Swap Obligations). Any reference in the Agreement or in the Loan Documents to the UK Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.>

<“UK Overadvance” means, as of any date of determination, that the UK Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11C.>

 

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<“UK Protective Advances” has the meaning specified therefor in Section 2.3(d)(i) of the Agreement.>

<“UK Revolver Commitment” means, with respect to each Revolving Lender, its UK Revolver Commitment, and, with respect to all Revolving Lenders, their UK Revolver Commitments, in each case as set forth beside such Revolving Lender’s name under the applicable heading on Schedule C-1 to the Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving Lender under the Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement.>

<“UK Revolver Usage” means, as of any date of determination, the sum of (a) the amount of outstanding UK Revolving Loans (inclusive of UK Swing Loans and UK Protective Advances), plus (b) the amount of the UK Letter of Credit Usage.>

<“UK Revolving Loan Exposure” means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the UK Revolver Commitments, the amount of such Lender’s UK Revolver Commitment, and (b) after the termination of the UK Revolver Commitments, the aggregate outstanding principal amount of the UK Revolving Loans of such Lender.>

<“UK Revolving Loans” has the meaning specified therefor in Section 2.1(c) of the Agreement.>

<“UK Security Documents” means (i) one or more guarantees and debentures in favor of Agent charging all present and after-acquired property and proceeds thereof of the UK Loan Parties, (ii) one or more standard securities, assignations and/or charges in favor of Agent securing property and proceeds thereof as are located in Scotland or otherwise governed by Scots law, of the UK Loan Parties (iii) one or more share pledges in favor of Agent over Scottish shares of UK Loan Parties, (iv) one or more share mortgages in favor of Agent over shares of the UK Loan Parties, and (v) all other agreements, instruments and documents granting charges or security interests in or upon the assets of the UK Loan Parties to secure all or any portion of the Obligations.>

<“UK Swing Lender” means Wells Fargo or any other Lender that, at the request of a UK Borrower and >with the consent of Agent <agrees, in such Lender’s sole discretion, to become the UK Swing Lender under Section 2.3(b) of the Agreement.>

<“UK Swing Loan” has the meaning specified therefor in Section 2.3(b) of the Agreement.>

<“UK Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the UK Swing Loans on such date.>

Unfinanced Capital Expenditures” means Capital Expenditures (a) not financed with the proceeds of any incurrence of Indebtedness (other than the incurrence of any Revolving Loans), the proceeds of any sale or issuance of Equity Interests or equity contributions, the proceeds of any asset sale (other than the sale of Inventory in the ordinary course of business) or any insurance proceeds, and (b) that are not reimbursed by a third person (excluding any Loan Party or any of its Affiliates) in the period such expenditures are made pursuant to a written agreement.

 

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United Arab Emirates Dirham” means the legal tender of the United Arab Emirates.

<“United Kingdom” and “UK” means the United Kingdom of Great Britain and Northern Ireland, but>, for the avoidance of doubt, <excluding the Channel Islands and the Isle of Man.>

United States” means the United States of America.

Unused Line Fee” has the meaning specified therefor in Section 2.10(b) of this Agreement.

US Availability” means, as of any date of determination, the amount that US Borrowers are entitled to borrow as US Revolving Loans under Section 2.1(a) of the Agreement (after giving effect to the then outstanding US Revolver Usage<, UK Revolver Usage> and Canadian Revolver Usage).

US Bank Product” means any one or more of the following financial products or accommodations extended to a Parent or its Subsidiaries (other than a Canadian <Loan Party or a UK >Loan Party) by a Bank Product Provider: (a) credit cards (including commercial credit cards (including so-called “purchase cards”, “procurement cards” or “P-cards”)), (b) credit card processing services, (c) debit cards, (d) stored value cards, (e) Cash Management Services, or (f) transactions under Hedge Agreements.

US Bank Product Agreements” means those agreements entered into from time to time by a Parent or its Subsidiaries (other than a Canadian Loan Party< or a UK Loan Party>) with a Bank Product Provider in connection with the obtaining of any of the US Bank Products.

US Bank Product Obligations” means (a) all obligations, liabilities, reimbursement obligations, fees, or expenses owing by a Parent or its Subsidiaries (other than a Canadian <Loan Party or a UK >Loan Party) to any Bank Product Provider pursuant to or evidenced by a US Bank Product Agreement and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, (b) all US Hedge Obligations, and (c) all amounts that Agent or any Lender is obligated to pay to a Bank Product Provider as a result of Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the US Bank Products provided by such Bank Product Provider to a Parent or its Subsidiaries (other than a Canadian Loan Party< or a UK Loan Party>); provided, in order for any item described in clauses (a), (b) or (c) above, as applicable, to constitute “US Bank Product Obligations”, if the applicable Bank Product Provider is any Person other than Wells Fargo or its Affiliates, then the applicable US Bank Product must have been provided on or after the Closing Date and Agent shall have received a Bank Product Provider Agreement within 10 days after the date of the provision of the applicable US Bank Product to a Parent or its Subsidiaries (other than a Canadian Loan Party< or a UK Loan Party>).

 

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US Bank Product Reserves” means, as of any date of determination, those reserves, without duplication of any other reserve, that Agent deems necessary or appropriate in its Permitted Discretion to establish (based upon the Bank Product Providers’ reasonable determination of the liabilities and obligations of Parents and their Subsidiaries (other than any Canadian Loan Party< or a UK Loan Party>) in respect of US Bank Product Obligations) in respect of US Bank Products then provided or outstanding.

US Base Rate” means the greatest of (a) the Federal Funds Rate plus 12%, (b) the LIBOR Rate (which rate shall be calculated based upon an Interest Period of 1 month and shall be determined on a daily basis), plus 1 percentage point, and (c) the rate of interest announced, from time to time, within Wells Fargo at its principal office in San Francisco as its “prime rate”, with the understanding that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as Wells Fargo may designate.

US Borrower” and “US Borrowers” have the meaning specified therefor in the preamble to the Agreement.

US Borrowing” means a borrowing consisting of US Revolving Loans made on the same day by the Lenders (or Agent on behalf thereof), or by US Swing Lender in the case of a US Swing Loan, or by Agent in the case of an US Extraordinary Advance.

US Borrowing Base” means, as of any date of determination, the Dollar Equivalent amount of:

(a) 90% of the amount of Eligible Accounts of each US Loan Party owing by Account Debtors that are rated (or whose parent is rated) Baa3 or higher from Moody’s or BBB- or higher from S&P, less the amount, if any, of the US Dilution Reserve attributable to such Eligible Accounts, plus

(b) 85% of the amount of Eligible Accounts of each US Loan Party owing by Account Debtors other than those described in the foregoing clause (a), less the amount, if any, of the US Dilution Reserve attributable to such Eligible Accounts, plus

(c) the lesser of (i) the product of 70% multiplied by the value (calculated at the lower of cost or market on a basis consistent with US Loan Parties’ historical accounting practices) of Eligible Finished Goods Inventory of each US Loan Party at such time, and (ii) the product of 85% multiplied by the Net Recovery Percentage identified in the most recent Acceptable Appraisal of Inventory, multiplied by the value (calculated at the lower of cost or market on a basis consistent with US Loan Parties’ historical accounting practices) of Eligible Finished Goods Inventory of each US Loan Party (such determination may be made as to different categories of Eligible Finished Goods Inventory based upon the Net Recovery Percentage applicable to such categories) at such time, <minus>plus

 

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(d) at the option of Administrative Borrower, 100% of the amount of unrestricted cash of the US Loan Parties held in one or more deposit accounts maintained in the United States with Agent, and in which Agent has a first priority perfected security interest and which is subject to a Control Agreement, as such amount may be updated by Agent between Borrowing Base Certificate delivery dates from time to time, including as frequently as daily, in its Permitted Discretion, minus

(e) (d) without duplication, the aggregate amount of Receivables Reserves, Bank Product Reserves, Inventory Reserves and other Reserves, in each case if any, established by Agent from time to time under Section 2.1(e) of this Agreement.

US Copyright Security Agreement” has the meaning specified therefor in the US Security Agreement.

US Designated Account” means the US Deposit Account identified on Schedule D-3 to the Agreement (or such other Deposit Account located at US Designated Account Bank that has been designated as such, in writing, by Administrative Borrower to Agent).

US Designated Account Bank” has the meaning specified therefor in Schedule D-3 to the Agreement (or such other bank that is located within the United States that has been designated as such, in writing, by Administrative Borrower to Agent).

US 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 amount of (a) bad debt write-downs, discounts, advertising allowances, credits, or other dilutive items with respect to US Loan Parties’ Accounts during such period, by (b) US Loan Parties’ billings with respect to Accounts during such period.

US Dilution Reserve” means, as of any date of determination, an amount, without duplication of any other reserve, sufficient to reduce the advance rate against Eligible Accounts of US Loan Parties by 1 percentage point for each percentage point by which US Dilution is in excess of 5%.

US Extraordinary Advances” has the meaning specified therefor in Section 2.3(d)(iii) of the Agreement.

US Guarantor” means (a) each Subsidiary of a US Borrower organized under the laws of a state of the United States or the District of Columbia (other than a US Borrower, an Excluded Subsidiary or an Immaterial Subsidiary) and (b) each other Person that guaranties all or a portion of the US Obligations pursuant to the US Security Agreement.

US Hedge Obligations” means any and all obligations or liabilities, whether absolute or contingent, due or to become due, now existing or hereafter arising, of Parents or their Subsidiaries (other than any Canadian Loan Party< or any UK Loan Party>) arising under, owing pursuant to, or existing in respect of Hedge Agreements entered into with one or more of the Hedge Providers.

 

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US Issuing Lender” means Wells Fargo and up to three other Lenders designated in writing to, and consented to by, the Agent (such consent not to be unreasonably withheld, conditioned or delayed) by the Administrative Borrower that agree, in such Lender’s sole discretion, to become a US Issuing Lender for the purpose of issuing US Letters of Credit pursuant to Section 2.11A of the Agreement and US Issuing Lender shall be a Lender.

US Letter of Credit” means a letter of credit (as that term is defined in the Code) issued by US Issuing Lender for the account of a US Borrower.

US Letter of Credit Disbursement” means a payment made by US Issuing Lender pursuant to a US Letter of Credit and calculated, with respect to US Letters of Credit where payment was not made in Dollars, as of such date of determination at the Exchange Rate in effect on the date of such payment.

US Letter of Credit Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the US Letter of Credit Usage on such date.

US Letter of Credit Usage” means, as of any date of determination, the aggregate undrawn amount of all outstanding US Letters of Credit and calculated, with respect to US Letters of Credit where demand for payment will not or may not be made in Dollars, as of such date of determination at the Exchange Rate in effect on such date.

US Loan Account” has the meaning specified therefor in Section 2.9 of the Agreement.

US Loan Party” means any US Borrower or any US Guarantor.

US Obligations” means (a) all loans (including the US Revolving Loans (inclusive of US Extraordinary Advances and US Swing Loans)), debts, principal, interest (including any interest that accrues after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding), premiums, liabilities (including all amounts charged to the US Loan Account pursuant to the Agreement), obligations (including indemnification obligations) of any US Loan Party, fees (including the fees provided for in the Fee Letter) of any US Loan Party, Lender Group Expenses (including any fees or expenses that accrue after the commencement of an Insolvency Proceeding, regardless of whether allowed or allowable in whole or in part as a claim in any such Insolvency Proceeding) of any US Loan Party, guaranties of any US Loan Party, and all covenants and duties of any other kind and description owing by any US Loan Party arising out of, under, pursuant to, in connection with, or evidenced by the Agreement or any of the other Loan Documents and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all interest not paid when due and all other expenses or other amounts that any US Loan Party is required to pay or reimburse by the Loan Documents or by law or otherwise in connection with the Loan Documents, (b) all debts, liabilities, or obligations (including reimbursement and indemnification obligations, irrespective of whether contingent) owing by any US Borrower or any other US Loan Party to US Issuing Lender now or hereafter arising from

 

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or in respect of a US Letters of Credit, and (c) all US Bank Product Obligations; provided, that US Obligations shall not include Excluded Swap Obligations. Without limiting the generality of the foregoing, the US Obligations under the Loan Documents include the obligation to pay (i) the principal of the US Revolving Loans, (ii) interest accrued on the US Revolving Loans, (iii) the amount necessary to reimburse US Issuing Lender for amounts paid or payable pursuant to US Letters of Credit, (iv) Letter of Credit commissions, charges, expenses, and fees, in each case in respect of US Letters of Credit, (v) Lender Group Expenses of any US Loan Party, (vi) fees payable by any US Loan Party under the Agreement or any of the other Loan Documents, (vii) indemnities and other amounts payable by any US Loan Party under any Loan Document (excluding Excluded Swap Obligations)<,> and (viii) any guaranties by any US Loan Party of all or any part of the Canadian Obligations< and (ix) any guaranties by any US Loan Party of all or any part of the UK Obligations>. Any reference in the Agreement or in the Loan Documents to the Obligations shall include all or any portion thereof and any extensions, modifications, renewals, or alterations thereof, both prior and subsequent to any Insolvency Proceeding.

US Overadvance” means, as of any date of determination, that the US Revolver Usage is greater than any of the limitations set forth in Section 2.1 or Section 2.11A.

US Patent Security Agreement” has the meaning specified therefor in the US Security Agreement.

US Protective Advances” has the meaning specified therefor in Section 2.3(d)(i) of the Agreement.

US Revolver Commitment” means, with respect to each Revolving Lender, its US Revolver Commitment, and, with respect to all Revolving Lenders, their US Revolver Commitments, in each case as set forth beside such Revolving Lender’s name under the applicable heading on Schedule C-1 to the Agreement or in the Assignment and Acceptance pursuant to which such Revolving Lender became a Revolving Lender under the Agreement, as such amounts may be reduced or increased from time to time pursuant to assignments made in accordance with the provisions of Section 13.1 of the Agreement.

US Revolver Usage” means, as of any date of determination, the sum of (a) the amount of outstanding US Revolving Loans (inclusive of US Swing Loans and US Protective Advances), plus (b) the amount of the US Letter of Credit Usage.

US Revolving Loan Exposure” means, with respect to any Revolving Lender, as of any date of determination (a) prior to the termination of the US Revolver Commitments, the amount of such Lender’s US Revolver Commitment, and (b) after the termination of the US Revolver Commitments, the aggregate outstanding principal amount of the US Revolving Loans of such Lender.

US Revolving Loans” has the meaning specified therefor in Section 2.1(a) of the Agreement.

US Security Agreement” means a Guaranty and Security Agreement, dated as of even date with the Agreement, by and among each US Loan Party and Agent.

 

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“U.S. Special Resolution Regimes” has the meaning specified therefor in Section 17.18 of this Agreement.

US Swing Lender” means Wells Fargo or any other Lender that, at the request of US Administrative Borrower and with the consent of Agent agrees, in such Lender’s sole discretion, to become the US Swing Lender under Section 2.3(b) of the Agreement.

US Swing Loan” has the meaning specified therefor in Section 2.3(b) of the Agreement.

US Swing Loan Exposure” means, as of any date of determination with respect to any Lender, such Lender’s Pro Rata Share of the US Swing Loans on such date.

US Trademark Security Agreement” has the meaning specified therefor in the US Security Agreement.

<“VAT” means (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.> Agreement. association.

“USD LIBOR” means the London interbank offered rate for Dollars.

Voidable Transfer” has the meaning specified therefor in Section 17.8 of this Agreement.

Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.

WF Canada” means Wells Fargo Capital Finance Corporation Canada.

Withdrawal Liability” means liability with respect to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

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.

 

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1.2. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with GAAP; provided, that if Administrative Borrower notifies Agent that Borrowers request an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date or in the application thereof on the operation of such provision (or if Agent notifies Administrative Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such Accounting Change or in the application thereof, then Agent and Borrowers agree that they will negotiate in good faith amendments to the provisions of this Agreement that are directly affected by such Accounting Change with the intent of having the respective positions of the Lenders and Borrowers after such Accounting Change conform as nearly as possible to their respective positions immediately before such Accounting Change took effect and, until any such amendments have been agreed upon and agreed to by the Required Lenders, the provisions in this Agreement shall be calculated as if no such Accounting Change had occurred. When used herein, the term “financial statements” shall include the notes and schedules thereto, and financial statements shall be prepared in accordance with GAAP. Whenever the term “Parent” is used in respect of a financial covenant or a related definition, it shall be understood to mean the Loan Parties and their Subsidiaries on a consolidated basis, unless the context clearly requires otherwise. Notwithstanding anything to the contrary contained herein, (a) all financial statements delivered hereunder shall be prepared, and all financial covenants contained herein shall be calculated, without giving effect to any election under the Statement of Financial Accounting Standards Board’s Accounting Standards Codification Topic 825 (or any similar accounting principle) permitting a Person to value its financial liabilities or Indebtedness at the fair value thereof, and (b) the term “unqualified opinion” as used herein to refer to opinions or reports provided by accountants shall mean an opinion or report that is (i) unqualified, and (ii) does not include any explanation, supplemental comment, or other comment concerning the ability of the applicable Person to continue as a going concern or concerning the scope of the audit.

1.3. Code; PPSA. Any terms used in this Agreement that are defined in (a) the Code shall be construed and defined as set forth in the Code unless otherwise defined herein; provided, that to the extent that the Code is used to define any term herein and such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of the Code shall govern, and (b) the PPSA (but not the Code) shall be construed and defined as set forth in the PPSA unless otherwise defined herein. Notwithstanding the foregoing, and where the context so requires, (i) any term defined in this Agreement by reference to the “Code”, the “UCC” or the “Uniform Commercial Code” shall also have any extended, alternative or analogous meaning given to such term in applicable Canadian personal property security and other laws (including, without limitation, the PPSA of each applicable province of Canada, the Bills of Exchange Act (Canada) and the Depository Bills and Notes Act (Canada)), to the extent that the context requires and in all cases for the extension, preservation or betterment of the security and rights of the Collateral, (ii) all references in this Agreement to “Article 8” shall be deemed to refer also to applicable Canadian securities transfer laws (including, without limitation, the Securities Transfer Act of each applicable province of Canada (the “STA”)), (iii) all references in this Agreement to a financing statement, continuation statement, amendment or termination statement shall be deemed to refer also to the analogous documents used under applicable Canadian personal property security laws, (iv) all references to the United States of America, or to any subdivision, department, agency or instrumentality thereof shall be

 

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deemed to refer, where the context requires with respect to Canadian Loan Parties, in lieu thereof to Canada, or to any subdivision, department, agency or instrumentality thereof, and (v) all references to federal or state securities law of the United States shall be deemed to refer, where the context requires with respect to Canadian Loan Parties, in lieu thereof to analogous federal (where applicable) and provincial securities laws in Canada.

1.4. Construction. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement or any other Loan Document refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, references to “law” means all international, foreign, federal, state, provincial and local statutes, treaties, common law, rules, guidelines, regulations, by-laws, ordinances, decrees, codes and administrative or judicial or arbitral or administrative or ministerial or departmental or regulatory precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority. Section, subsection, clause, schedule, and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement or in any other Loan Document to any agreement, instrument, or document shall include all alterations, amendments, changes, variations, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, variations, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. All references to “province” or like terms shall include “territory” and like terms. Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean (a) the payment or repayment in full in immediately available funds in the Applicable Currency of (i) the principal amount of, and interest accrued and unpaid with respect to, all outstanding Loans, (ii) all Lender Group Expenses that have accrued and are unpaid regardless of whether demand has been made therefor, and (iii) all fees or charges that have accrued hereunder or under any other Loan Document (including the Letter of Credit Fee and the Unused Line Fee) and are unpaid, (b) in the case of contingent reimbursement obligations with respect to Letters of Credit, providing Letter of Credit Collateralization in the Applicable Currency, (c) in the case of obligations with respect to Bank Products (other than Hedge Obligations), providing Bank Product Collateralization in the Applicable Currency, (d) the receipt by Agent of cash collateral in the Applicable Currency in order to secure any other contingent Obligations for which a claim or demand for payment has been made on or prior to such time or in respect of matters or circumstances known to Agent or a Lender at such time that are reasonably expected to result in any loss, cost, damage, or expense (including reasonable and documented outside counsel attorneys’ fees and legal expenses), such cash collateral to be in such amount as Agent reasonably determines is appropriate to secure such contingent Obligations, (e) the payment or

 

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repayment in full in immediately available funds in the Applicable Currency of all other outstanding Obligations (including the payment of any termination amount then applicable (or which would or could become applicable as a result of the repayment of the other Obligations) under Hedge Agreements provided by Hedge Providers) other than (i) unasserted contingent indemnification Obligations, (ii) any Bank Product Obligations (other than Hedge Obligations) that, at such time, are allowed by the applicable Bank Product Provider to remain outstanding without being required to be repaid or cash collateralized, and (iii) any Hedge Obligations that, at such time, are allowed by the applicable Hedge Provider to remain outstanding without being required to be repaid, and (f) the termination of all of the Commitments of the Lenders. Any reference herein to any Person shall be construed to include such Person’s successors and assigns. Any requirement of a writing contained herein or in any other Loan Document shall be satisfied by the transmission of a Record.

1.5. Time References. Unless the context of this Agreement or any other Loan Document clearly requires otherwise, all references to time of day refer to Eastern standard time or Eastern daylight saving time, as in effect in Atlanta, Georgia on such day. For purposes of the computation of a period of time from a specified date to a later specified date, unless otherwise expressly provided, the word “from” means “from and including” and the words “to” and “until” each means “to and including”; provided, that with respect to a computation of fees or interest payable to Agent or any Lender, such period shall in any event consist of at least one full day.

1.6. Schedules and Exhibits. All of the schedules and exhibits attached to this Agreement shall be deemed incorporated herein by reference.

1.7. Exchange Rates; Currency Equivalents; Applicable Currency.

(a) For purposes of this Agreement and the other Loan Documents, the Dollar Equivalent of any Revolving Loans, Letters of Credit, other Obligations and other references to amounts denominated in a currency other than Dollars shall be determined in accordance with the terms of this Agreement. Such Dollar Equivalent shall become effective as of such Revaluation Date for such Revolving Loans, Letters of Credit and other Obligations and shall be the Dollar Equivalent employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur for such Revolving Loans, Letters of Credit and other Obligations. Except as otherwise expressly provided herein, the applicable amount of any currency for purposes of the Loan Documents (including for purposes of financial statements and all calculations in connection with the covenants, including the financial covenants) shall be the Dollar Equivalent thereof.

(b) Wherever in this Agreement and the other Loan Documents in connection with a borrowing, conversion, continuation or prepayment of a Revolving Loan or 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 Revolving Loan or Letter of Credit is denominated in Canadian Dollars< or Sterling>, such amount shall be the same dollar figure but denominated in Canadian Dollars< or Sterling (as applicable)>.

1.8. Quebec Interpretation. For all purposes of any assets, liabilities or entities located in the Province of Quebec and for all purposes pursuant to which the interpretation or

 

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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, (a) “personal property” shall include “movable property”, (b) “real property” shall include “immovable property”, (c) “tangible property” shall include “corporeal property”, (d) “intangible property” shall include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall include a “hypothec”, “prior claim” and a “resolutory clause”, (f) all references to filing, registering or recording under the Code or PPSA shall include publication under the Civil Code of Quebec, (g) all references to “perfection” of or “perfected” liens or security interest shall include a reference to an “opposable” or “set up” lien or security interest as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall include a “right of compensation”, (i) “goods” shall include corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall include a “mandatary”, (k) “construction liens” shall include “legal hypothecs”, (l) “joint and several” shall include “solidary”, (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall include “ownership on behalf of another as mandatary”, (o) “easement” shall include “servitude”, (p) “priority” shall include “prior claim”, (q) “survey” shall include “certificate of location and plan”, and (r) “fee simple title” shall include “absolute ownership”. The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only (except if another language is required under any applicable Law) and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement (sauf si une autre langue est requise en vertu d’une loi applicable).

1.9. <Scottish Interpretation. For all purposes of any assets, liabilities or entities located in Scotland or otherwise governed by Scots law and for all purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of Scotland or a court or tribunal exercising jurisdiction in Scotland, (a) “personal property” shall include “movable property”, (b) “real property” shall include “heritable property” and “long leasehold”, (c) “mortgage” shall include “standard security”, (d) “recordation” includes “registrations” and “recording”, (e) “security interest” and “lien” shall include a “hypothec”, “standard security”, “charge”, “pledge”, and “assignation”, (f) “judgment” shall include a “decree”, (g) “tort” includes “delict”, (h) “easements” includes “servitudes”, “burdens”, and “wayleaves”, and (i) “peaceful and undisturbed” includes “open and peaceable”. >

1.9. [Reserved].

1.10. 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.

 

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1.11. Rates. The interest rate on Loans denominated in Dollars or Canadian Dollars may be determined by reference to a benchmark rate that is, or may in the future become, the subject to regulatory reform or cessation. Regulators have signaled the need to use alternative reference rates for some of these benchmark rates and, as a result, such benchmark rates may cease to comply with applicable laws and regulations, may be permanently discontinued or the basis on which they are calculated may change. The London interbank offered rate, which may be one of the benchmark rates with reference to which the interest rate on Loans may be determined, is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. On March 5, 2021, the ICE Benchmark Administration (“IBA”), the administrator of the London interbank offered rate, and the Financial Conduct Authority (the “FCA”), the regulatory supervisor of IBA, announced in public statements (the “Announcements”) that the final publication or representativeness date for the London interbank offered rate for: (a) Dollars for 1-week and 2-month tenor settings will be December 31, 2021 and (b) Dollars for overnight, 1-month, 3-month, 6-month and 12-month tenor settings will be June 30, 2023. No successor administrator for IBA was identified in such Announcements. As a result, it is possible that commencing immediately after such dates, the London interbank offered rate for such currencies and tenors may no longer be available or may no longer be deemed a representative reference rate upon which to determine the interest rate on applicable Loans. There is no assurance that the dates set forth in the Announcements will not change or that IBA or the FCA will not take further action that could impact the availability, composition or characteristics of any London interbank offered rate. Public and private sector industry initiatives have been and continue, as of the date hereof, to be underway to implement new or alternative reference rates to be used in place of London interbank offered rates. In the event that the London interbank offered rate or any other then-current Benchmark is no longer available or in certain other circumstances set forth in Section 2.12(d)(iii), such Section 2.12(d)(iii) provides a mechanism for determining an alternative rate of interest. The Administrative Agent will notify the Borrower, pursuant to Section 2.12(d)(iii), of any change to the reference rate upon which the interest rate on Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (i) the continuation of, administration of, submission of, calculation of or any other matter related to the London interbank offered rate or other rates in the definition of “LIBOR Rate” or with respect to any alternative, successor or replacement rate thereto (including any then-current Benchmark or any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to Section 2.12(d)(iii), will be similar to, or produce the same value or economic equivalence of, the LIBOR Rate or any other Benchmark, or have the same volume or liquidity as did the London interbank offered rate or any other Benchmark prior to its discontinuance or unavailability, or (ii) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of a Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to a Borrower. Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark, any component definition thereof or rates referenced in the definition thereof, in each case

 

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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 calculation of any such rate (or component thereof) provided by any such information source or service.

 

2.

LOANS AND TERMS OF PAYMENT.

 

  2.1.

Revolving Loans.

(a) Subject to the terms and conditions of this Agreement, and during the term of this Agreement, each Revolving Lender with a US Revolver Commitment agrees (severally, not jointly or jointly and severally) to make revolving loans in Dollars (“US Revolving Loans”) to US Borrowers in an amount at any one time outstanding not to exceed the lesser of:

(i) such Lender’s US Revolver Commitment, and

(ii) such Lender’s Pro Rata Share of an amount equal to the lesser of:

(A) the amount equal to (1) the Maximum Revolver Amount, less (2) the sum of (w) the US Letter of Credit Usage at such time, plus (x) the principal amount of US Swing Loans outstanding at such time, plus (y) the Dollar Equivalent of the Canadian Revolver Usage at such time, <plus (z) the Dollar Equivalent of the UK Revolver Usage at such time, >and

(B) the amount equal to (1) the US Borrowing Base as of such date (based upon the US Borrowing Base set forth in the most recent Borrowing Base Certificate delivered by Borrowers to Agent, as adjusted for Reserves established by Agent in accordance with Section 2.1(e)), less (2) the sum of (x) the US Letter of Credit Usage at such time, plus (y) the principal amount of US Swing Loans outstanding at such time.

(b) Subject to the terms and conditions of this Agreement, and during the term of this Agreement, each Revolving Lender with a Canadian Revolver Commitment agrees (severally, not jointly or jointly and severally) to make revolving loans in Dollars or Canadian Dollars, as selected by Administrative Borrower (“Canadian Revolving Loans”) to Canadian Borrowers in an amount at any one time outstanding not to exceed the Dollar Equivalent of the lesser of:

(i) such Lender’s Canadian Revolver Commitment, and

(ii) such Lender’s Pro Rata Share of an amount equal to the least of:

(A) the amount equal to (1) the Canadian Maximum Revolver Amount, less (2) the sum of (x) the Canadian Letter of Credit Usage at such time, plus (y) the principal amount of Canadian Swing Loans outstanding at such time, and

(B) the amount equal to (1) the Canadian Borrowing Base as of such date (based upon the Canadian Borrowing Base set forth in the most recent Borrowing Base

 

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Certificate delivered by Borrowers to Agent, as adjusted for Reserves established by Agent in accordance with Section 2.1(e)), less (2) the sum of (x) the Canadian Letter of Credit Usage at such time, plus (y) the principal amount of Canadian Swing Loans outstanding at such time, and

(C) the amount equal to (1) the Maximum Revolver Amount less (2) the sum of (w) the Canadian Letter of Credit Usage at such time plus (x) the principal amount of Canadian Swing Loans outstanding at such time, plus (y) the US Revolver Usage at such time<, plus (z) the Dollar Equivalent of the UK Revolver Usage at such time>.

(c) <Subject to the terms and conditions of this Agreement (including without limitation the conditions to the initial extensions of credit to the UK Borrowers under Section 3.1), and during the term of this Agreement, each Revolving Lender with a UK Revolver Commitment agrees (severally, not jointly or jointly and severally) to make revolving loans in Dollars or Sterling, as selected by Administrative Borrower (“UK Revolving Loans”) to UK Borrowers in an amount at any one time outstanding not to exceed the Dollar Equivalent of the lesser of:>

(c) (i) <such Lender’s UK Revolver Commitment, and>[reserved]

    (ii) <such Lender’s Pro Rata Share of an amount equal to the least of:>

(A) <the amount equal to (1) the UK Maximum Revolver Amount, less (2) the sum of (x) the UK Letter of Credit Usage at such time, plus (y) the principal amount of UK Swing Loans outstanding at such time, and>

(B) <the amount equal to (1) the UK Borrowing Base as of such date (based upon the UK Borrowing Base set forth in the most recent Borrowing Base Certificate delivered by Borrowers to Agent, as adjusted for Reserves established by Agent in accordance with Section 2.1(e)), less (2) the sum of (x) the UK Letter of Credit Usage at such time, plus (y) the principal amount of UK Swing Loans outstanding at such time, and>

(C) <the amount equal to (1) the Maximum Revolver Amount less (2) the sum of (w) the UK Letter of Credit Usage at such time plus (x) the principal amount of UK Swing Loans outstanding at such time, plus (y) the US Revolver Usage at such time, plus (z) the Dollar Equivalent of the Canadian Revolver Usage at such time.>

(d) Amounts borrowed pursuant to this Section 2.1 may be repaid and, subject to the terms and conditions of this Agreement, reborrowed at any time during the term of this Agreement. The outstanding principal amount of the Revolving Loans, together with interest accrued and unpaid thereon, shall constitute Obligations and shall be due and payable on the Maturity Date or, if earlier, on the date on which they otherwise become due and payable pursuant to the terms of this Agreement.

(e) Anything to the contrary in this Section 2.1 notwithstanding, Agent shall have the right (but not the obligation) at any time, in the exercise of its Permitted Discretion, to establish and increase or decrease Reserves against the US Borrowing Base, the Canadian Borrowing Base, the <UK Borrowing Base, the >Maximum Revolver Amount<,> or the Canadian Maximum Revolver <Amount or the UK Maximum Revolver >Amount. The amount

 

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of any Reserve established by Agent, and any changes to the eligibility criteria set forth in the definitions of Eligible Accounts and Eligible Inventory shall have a reasonable relationship to the event, condition, other circumstance, or fact that is the basis for such reserve or change in eligibility and shall not be duplicative of any other reserve established and currently maintained or eligibility criteria.

(f) Anything to the contrary in this Section 2.1 notwithstanding, (i) at no time shall the sum of the US Revolver Usage<,> and the Dollar Equivalent of the Canadian Revolver Usage <and the Dollar Equivalent of the UK Revolver Usage >exceed the Maximum Revolver Amount<,> and (ii) at no time shall the Dollar Equivalent of the Canadian Revolver Usage exceed the Canadian Maximum Revolver Amount< and (iii) at no time shall the Dollar Equivalent of the UK Revolver Usage exceed the UK Maximum Revolver Amount>.

2.2. [Reserved].

2.3. Borrowing Procedures and Settlements.

(a) Procedure for Borrowing Revolving Loans. Each Borrowing shall be made by a written request by an Authorized Person delivered to Agent (which may be delivered through Agent’s electronic platform or portal) and received by Agent no later than 2:00 p.m. (i) on the Business Day that is the requested Funding Date in the case of a request for a Swing Loan, (ii) on the Business Day that is one Business Day prior to the requested Funding Date in the case of a request for a Base Rate Loan, and (iii) on the Business Day that is three Business Days prior to the requested Funding Date in the case of all other requests, specifying (A) the amount of such Borrowing and whether such Borrowing is for the account of US Borrowers<, UK Borrowers> or Canadian Borrowers (and <(x) >if for the Canadian Borrowers, whether in Dollars or Canadian Dollars< and (y) if for the UK Borrowers whether in Dollars or Sterling>), and (B) the requested Funding Date (which shall be a Business Day); provided, that Agent may, in its sole discretion, elect to accept as timely requests that are received later than 2:00 p.m. on the applicable Business Day. All Borrowing requests which are not made on-line via Agent’s electronic platform or portal shall be subject to (and unless Agent elects otherwise in the exercise of its sole discretion, such Borrowings shall not be made until the completion of) Agent’s authentication process (with results satisfactory to Agent) prior to the funding of any such requested Revolving Loan. Borrowings for the account of US Borrowers shall be denominated in Dollars<,> and Borrowings for the account of Canadian Borrowers shall be denominated in Dollars or Canadian Dollars (as selected by Administrative Borrower)<, and Borrowings for the account of UK Borrowers shall be denominated in Dollars or Sterling (as selected by Administrative Borrower)>.

(b) Making of Swing Loans. In the case of a US Swing Loan by US Borrowers<,> or a Canadian Swing Loan by Canadian <Borrowers or a UK Swing Loan by UK >Borrowers and so long as any of (i) the aggregate Dollar Equivalent amount of Swing Loans made since the last Settlement Date, minus all payments or other amounts applied to Swing Loans since the last Settlement Date, plus the amount of the Swing Loan does not exceed 10% of the Maximum Revolver Amount, or (ii) the applicable Swing Lender, in its sole discretion, agrees to make such Swing Loan notwithstanding the foregoing limitation, the US Swing Lender (in the case of a US Swing Loan)<,> or the Canadian Swing Lender (in the case of a Canadian

 

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<Swing Loan) or the UK Swing Lender (in the case of a UK >Swing Loan), as applicable, shall make a Revolving Loan (any such Revolving Loan for the account of US Borrowers made by US Swing Lender pursuant to this Section 2.3(b) being referred to as a “US Swing Loan” and all such Revolving Loans for the account of US Borrowers by US Swing Lender being referred to as “US Swing Loans<,> and such Revolving Loan for the account of Canadian Borrowers made by Canadian Swing Lender pursuant to this Section 2.3(b) being referred to as a “Canadian Swing Loan” and all such Revolving Loans for the account of Canadian Borrowers by Canadian Swing Lender being referred to as “Canadian Swing Loans<, and such Revolving Loan for the account of UK Borrowers made by UK Swing Lender pursuant to this Section 2.3(b) being referred to as a “UK Swing Loan” and all such Revolving Loans for the account of UK Borrowers by UK Swing Lender being referred to as “UK Swing Loans”>) available to the applicable Borrower on the Funding Date applicable thereto by transferring immediately available funds in the Applicable Currency in the amount of such Borrowing to the US Designated Account (in the case of a US Swing Loan)<,> or the Canadian Designated Account (in the case of Canadian Swing Loan<) or the UK Designated Account (in the case of UK Swing Loan>). Each Swing Loan shall be deemed to be a Revolving Loan hereunder and shall be subject to all the terms and conditions (including Section 3) applicable to other Revolving Loans, except that all payments (including interest) on any Swing Loan shall be payable to the applicable Swing Lender solely for its own account. Subject to the provisions of Section 2.3(d)(ii), no Swing Lender shall make or be obligated to make any Swing Loan if such Swing Lender has actual knowledge that (i) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing, or (ii) the requested Borrowing would exceed US Availability (if a US Borrowing)<,> or Canadian Availability (if a Canadian <Borrowing) or UK Availability (if a UK >Borrowing) on such Funding Date. No Swing Lender shall otherwise be required to determine whether the applicable conditions precedent set forth in Section 3 have been satisfied on the Funding Date applicable thereto prior to making any Swing Loan. The US Swing Loans shall constitute US Revolving Loans and US Obligations, and bear interest at the rate applicable from time to time to US Revolving Loans that are Base Rate Loans. The Canadian Swing Loans shall constitute Canadian Revolving Loans and Canadian Obligations, and bear interest at the rate applicable from time to time to Canadian Revolving Loans that are Base Rate Loans. <The UK Swing Loans shall constitute UK Revolving Loans and UK Obligations, and bear interest at the rate applicable from time to time to UK Revolving Loans that are Base Rate Loans.>

(c) Making of Revolving Loans.

(i) In the event that the applicable Swing Lender is not obligated to make a Swing Loan, then after receipt of a request for a Borrowing pursuant to Section 2.3(a)(i), Agent shall notify the applicable Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Borrowing (and whether such borrowing is for the account of US Borrowers<,> or Canadian <Borrowers or UK >Borrowers); such notification to be sent on the Business Day that is (A) in the case of a Base Rate Loan at least one Business Day prior to the requested Funding Date or (B) in the case of a Non-Base Rate Loan, prior to 11:00 a.m. at least three Business Days prior to the requested Funding Date. If Agent has notified the applicable Lenders of a requested Borrowing on the Business Day that is one Business Day prior to the Funding Date, then each Lender with the applicable Revolving Commitment shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in

 

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immediately available funds in the Applicable Currency, to Agent’s US Account<,> or Agent’s Canadian Account< or Agent’s UK Account>, as applicable, not later than 10:00 a.m. on the Business Day that is the requested Funding Date. After Agent’s receipt of the proceeds of such Revolving Loans from the applicable Lenders, Agent shall make the proceeds thereof available to the applicable Borrower on the applicable Funding Date by transferring immediately available funds in the Applicable Currency equal to such proceeds received by Agent to the US Designated Account<,> or Canadian Designated <Account or UK Designated >Account, as applicable; provided, that subject to the provisions of Section 2.3(d)(ii), no Lender shall have an obligation to make any Revolving Loan, if (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the US Availability (in the case of a US Borrowing)<,> or Canadian Availability (in the case of a Canadian Borrowing) <or UK Availability (in the case of a UK Borrowing)>on such Funding Date.

(ii) Unless Agent receives notice from a Lender prior to 9:30 a.m. on the Business Day that is the requested Funding Date relative to a requested Borrowing as to which Agent has notified the Lenders of a requested Borrowing that such Lender will not make available as and when required hereunder to Agent for the account of US Borrowers<, UK Borrowers> or Canadian Borrowers, as applicable, the amount of that Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds in the Applicable Currency on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to US Borrowers<, UK Borrowers> or Canadian Borrowers, as applicable, a corresponding amount. If, on the requested Funding Date, any Lender shall not have remitted the full amount that it is required to make available to Agent in immediately available funds in the Applicable Currency and if Agent has made available to US Borrowers<, UK Borrowers> or Canadian Borrowers, as applicable, such amount on the requested Funding Date, then such Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds in the Applicable Currency, to Agent’s Applicable Account, no later than 10:00 a.m. on the Business Day that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such Lender’s portion of such Borrowing for the Funding Date shall be for Agent’s separate account). If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds in the Applicable Currency as and when required hereby and if Agent has made available to US Borrowers<, UK Borrowers> or Canadian Borrowers, as applicable, such amount, then that Lender shall be obligated to immediately remit such amount to Agent, together with interest at the applicable Defaulting Lender Rate for each day until the date on which such amount is so remitted. A notice submitted by Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error. If the amount that a Lender is required to remit is made available to Agent, then such payment to Agent shall constitute such Lender’s US Revolving Loans (in the case of Revolving Loans for the account of US Borrowers)<, UK Revolving Loans (in the case of Revolving Loans for the account of UK Borrowers)> or Canadian Revolving Loans (in the case of Revolving Loans for the account of Canadian Borrowers) for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, US Borrowers (in the case of US

 

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Revolving Loans)<, UK Borrowers (in the case of UK Revolving Loans)> and Canadian Borrowers (in the case of Canadian Revolving Loans) shall pay such amount in the Applicable Currency to Agent, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the applicable Revolving Loans composing such Borrowing.

(d) Protective Advances and Optional Overadvances.

(i) Any contrary provision of this Agreement or any other Loan Document notwithstanding (but subject to Section 2.3(d)(iv)) at any time (A) after the occurrence and during the continuance of an Event of Default, or (B) that any of the other applicable conditions precedent set forth in Section 3 are not satisfied, Agent hereby is authorized by Borrowers and the Lenders, from time to time, in Agent’s sole discretion, to make US Revolving Loans to, or for the benefit of, US Borrowers<, UK Revolving Loans to, or for the benefit of, UK Borrowers,> and/or Canadian Revolving Loans to, or for the benefit of, Canadian Borrowers, in each case, on behalf of the applicable Revolving Lenders, that Agent, in its Permitted Discretion, deems necessary or desirable (1) to preserve or protect the Collateral, or any portion thereof, or (2) to enhance the likelihood of repayment of the Obligations (other than the Bank Product Obligations) (the US Revolving Loans described in this Section 2.3(d)(i) shall be referred to as “US Protective Advances<, the UK Revolving Loans described in this Section 2.3(d)(i) shall be referred to as “UK Protective Advances”> and the Canadian Revolving Loans described in this Section 2.3(d)(i) shall be referred to as “Canadian Protective Advances”). Notwithstanding the foregoing, the aggregate Dollar Equivalent principal amount of all Protective Advances outstanding at any one time shall not exceed 10% of the Maximum Revolver Amount. Agent’s authorization to make Protective Advances may be revoked at any time by the Required Lenders delivering written notice of such revocation to Agent. Any such revocation shall become effective prospectively upon Agent’s receipt thereof.

(ii) Any contrary provision of this Agreement or any other Loan Document notwithstanding, the Lenders hereby authorize Agent or the applicable Swing Lender, as applicable, and either Agent or the applicable Swing Lender, as applicable, may, but is not obligated to, knowingly and intentionally, continue to make US Revolving Loans (including US Swing Loans) to US Borrowers<, UK Revolving Loans (including UK Swing Loans) to UK Borrowers> and Canadian Revolving Loans (including Canadian Swing Loans) to Canadian Borrowers notwithstanding that an Overadvance exists or would be created thereby, so long as (A) with respect to any such US Revolving Loans, (i) after giving effect to any such US Revolving Loans, the outstanding US Revolver Usage does not exceed the US Borrowing Base (based upon the most recent Borrowing Base Certificate delivered by Borrowers to Agent) by more than 10% of the Maximum Revolver Amount, and (ii) subject to Section 2.3(d)(iv) below, after giving effect to such US Revolving Loans, the sum of the outstanding US Revolver Usage (except for and excluding amounts charged to the US Loan Account for interest, fees, or Lender Group Expenses)<, the Dollar Equivalent of the UK Revolver Usage (except for and excluding amount charged to the UK Loan Account for interest, fees and Lender Group Expenses),> and the Dollar Equivalent of the Canadian Revolver Usage (except for and excluding amount charged to the Canadian Loan Account for interest, fees and Lender Group Expenses) does not exceed the Maximum Revolver Amount<,> and (B) with respect to any such Canadian Revolving Loans, (i) after giving effect to such Canadian Revolving Loans, the outstanding

 

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Dollar Equivalent of the Canadian Revolver Usage does not exceed the Canadian Borrowing Base (based upon the most recent Borrowing Base Certificate delivered by Borrowers to Agent) by more than 10% of the Canadian Maximum Revolver Amount, and (ii) subject to Section 2.3(d)(iv) below, after giving effect to such Canadian Revolving Loans, the sum of the outstanding Dollar Equivalent of the Canadian Revolver Usage (except for and excluding amounts charged to the Canadian Loan Account for interest, fees, or Lender Group Expenses)<, UK Revolver Usage and US Revolver Usage does not exceed the Maximum Revolver Amount and (C) with respect to any such UK Revolving Loans, (i) after giving effect to such UK Revolving Loans, the outstanding Dollar Equivalent of the UK Revolver Usage does not exceed the UK Borrowing Base (based upon the most recent Borrowing Base Certificate delivered by Borrowers to Agent) by more than 10% of the UK Maximum Revolver Amount, and (ii) subject to Section 2.3(d)(iv) below, after giving effect to such UK Revolving Loans, the sum of the outstanding Dollar Equivalent of the UK Revolver Usage (except for and excluding amounts charged to the UK Loan Account for interest, fees, or Lender Group Expenses), Canadian Revolver Usage> and US Revolver Usage does not exceed the Maximum Revolver Amount. In the event Agent obtains actual knowledge that the applicable US Revolver <Usage, UK Revolver >Usage or Canadian Revolver Usage exceeds the amounts permitted by this Section 2.3(d), regardless of the amount of, or reason for, such excess, Agent shall notify the Lenders as soon as practicable (and prior to making any (or any additional) intentional Overadvances (except for and excluding amounts charged to the applicable Loan Account for interest, fees, or Lender Group Expenses) unless Agent determines that prior notice would result in imminent harm to the Collateral or its value, in which case Agent may make such Overadvances and provide notice as promptly as practicable thereafter), and the Lenders with applicable Revolver Commitments thereupon shall, together with Agent, jointly determine the terms of arrangements that shall be implemented with the applicable Borrowers intended to reduce, within a reasonable time, the outstanding principal amount of the applicable Revolving Loans to such Borrowers to an amount permitted by the preceding sentence. In such circumstances, if any Lender with a Revolver Commitment objects to the proposed terms of reduction or repayment of any Overadvance, the terms of reduction or repayment thereof shall be implemented according to the determination of the Required Lenders. The foregoing provisions are meant for the benefit of the Lenders and Agent and are not meant for the benefit of Borrowers, which shall continue to be bound by the provisions of Section 2.4(e). Agent’s and Swing Lender’s authorization to make intentional Overadvances may be revoked at any time by the Required Lenders delivering written notice of such revocation to Agent. Any such revocation shall become effective prospectively upon Agent’s receipt thereof.

(iii) Each US Protective Advance and each US Overadvance (each, “US Extraordinary Advance”) shall be deemed to be a US <Revolving Loan hereunder, each UK Protective Advance and each UK Overadvance (each, “UK Extraordinary Advance”) shall >be deemed to be a <UK >Revolving Loan hereunder and each Canadian Protective Advance and Canadian Overadvance (each, a “Canadian Extraordinary Advance”) shall be deemed a Canadian Revolving Loan hereunder. No Extraordinary Advance shall be eligible to be a Non-Base Rate Loan. Prior to Settlement of any Extraordinary Advances, all payments with respect thereto, including interest thereon, shall be payable to Agent solely for its own account. Each Revolving Lender shall be obligated to settle with Agent as provided in Section 2.3(e) or Section 2.3(g), as applicable, for the amount of such Lender’s Pro Rata Share of any Extraordinary Advance. The US Extraordinary Advances shall be repayable on demand, constitute US Obligations hereunder,

 

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and bear interest at the rate applicable from time to time to US Revolving Loans that are Base Rate Loans<, the UK Extraordinary Advances shall be repayable on demand, constitute UK Obligations hereunder, and bear interest at the rate applicable from time to time to UK Revolving Loans that are Base Rate Loans> and the Canadian Extraordinary Advances shall be repayable on demand, constitute Canadian Obligations hereunder, and bear interest at the rate applicable from time to time to Canadian Revolving Loans that are Base Rate Loans. The provisions of this Section 2.3(d) are for the exclusive benefit of Agent, Swing Lender, and the Lenders and are not intended to benefit Borrowers (or any other Loan Party) in any way.

(iv) Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, no Extraordinary Advance may be made by Agent if such Extraordinary Advance would cause the aggregate Dollar Equivalent of the Revolver Usage to exceed the Maximum Revolver Amount or any Lender’s Pro Rata Share of the Dollar Equivalent of the Revolver Usage to exceed such Lender’s Revolver Commitments.

(e) Settlement. It is agreed that each Lender’s funded portion of (i) the US Revolving Loans is intended by the Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding US Revolving Loans<,> and (ii<) the UK Revolving Loans is intended by the Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding UK Revolving Loans and (iii>) Canadian Revolving Loans is intended by the Lenders to equal, at all times, such Lender’s Pro Rata Share of the outstanding Canadian Revolving Loans. Such agreement notwithstanding, Agent, Swing Lenders, and the other Lenders agree (which agreement shall not be for the benefit of Borrowers) that in order to facilitate the administration of this Agreement and the other Loan Documents, settlement among the Lenders as to the Revolving Loans (including Swing Loans and Extraordinary Advances) shall take place on a periodic basis in accordance with the following provisions:

(i) Agent shall request settlement (“Settlement”) with the Lenders on a weekly basis, or on a more frequent basis if so determined by Agent in its sole discretion (1) on behalf of US Swing Lender, with respect to the outstanding US Swing Loans, (2) on behalf of Canadian Swing Lender, with respect to the outstanding Canadian Swing Loans, (3) <on behalf of UK Swing Lender, with respect to the outstanding UK Swing Loans,>[reserved], (4) for itself, with respect to the outstanding Extraordinary Advances, and (5) with respect to Loan Parties’ or any of their Subsidiaries’ payments or other amounts received, as to each by notifying the Lenders by telecopy, telephone, or other similar form of transmission, of such requested Settlement, no later than 2:00 p.m. on the Business Day immediately prior to the date of such requested Settlement (the date of such requested Settlement being the “Settlement Date”). Such notice of a Settlement Date shall include a summary statement of the amount of outstanding US Revolving Loans (including US Swing Loans and US Extraordinary <Advances), UK Revolving Loans (including UK Swing Loans and UK Extraordinary >Advances) and Canadian Revolving Loans (including Canadian Swing Loans and Canadian Extraordinary Advances) for the period since the prior Settlement Date. Subject to the terms and conditions contained herein (including Section 2.3(g)): (y) if the amount of the applicable Revolving Loans (including applicable Swing Loans and applicable Extraordinary Advances) made by a Lender that is not a Defaulting Lender exceeds such Lender’s Pro Rata Share of the Revolving Loans (including Swing Loans and Extraordinary Advances) as of a Settlement Date, then Agent shall, by no later than 12:00 p.m. on the Settlement Date, transfer in immediately available funds in the Applicable Currency

 

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to a Deposit Account of such Lender (as such Lender may designate), an amount such that each such Lender shall, upon receipt of such amount, have as of the Settlement Date, its Pro Rata Share of the US Revolving Loans (including US Swing Loans and US Extraordinary Advances)<, the UK Revolving Loans (including UK Swing Loans and UK Extraordinary Advances) and> and the Canadian Revolving Loans (including Canadian Swing Loans and Canadian Extraordinary Advances), as applicable, and (z) if the amount of the applicable Revolving Loans (including the applicable Swing Loans and applicable Extraordinary Advances) made by a Lender is less than such Lender’s Pro Rata Share of the applicable Revolving Loans (including applicable Swing Loans and applicable Extraordinary Advances) as of a Settlement Date, such Lender shall no later than 12:00 p.m. on the Settlement Date transfer in immediately available funds in the Applicable Currency to Agent’s Applicable Account, an amount such that each such Lender shall, upon transfer of such amount, have as of the Settlement Date, its Pro Rata Share of the US Revolving Loans (including US Swing Loans and US Extraordinary Advances)<, the UK Revolving Loans (including UK Swing Loans and UK Extraordinary Advances)> and Canadian Revolving Loans (including Canadian Swing Loans and Canadian Extraordinary Advances). Such amounts made available to Agent under clause (z) of the immediately preceding sentence shall be applied against the amounts of the applicable Swing Loans or Extraordinary Advances and, together with the portion of such Sing Loans or Extraordinary Advances representing the applicable Swing Lender’s Pro Rata Share thereof, shall constitute US Revolving Loans<, UK Revolving Loans> or Canadian Revolving Loans, as applicable, of such Lenders. If any such amount is not made available to Agent by any Lender on the Settlement Date applicable thereto to the extent required by the terms hereof, Agent shall be entitled to recover for its account such amount on demand from such Lender together with interest thereon at the Defaulting Lender Rate.

(ii) In determining whether a Lender’s balance of the applicable Revolving Loans (including Swing Loans and Extraordinary Advances) is less than, equal to, or greater than such Lender’s Pro Rata Share of the applicable Revolving Loans (including Swing Loans and Extraordinary Advances) as of a Settlement Date, Agent shall, as part of the relevant Settlement, apply to such balance the portion of payments applicable to such Obligations actually received in good funds by Agent with respect to principal, interest, fees payable by Borrowers and allocable to the Lenders hereunder, and proceeds of Collateral.

(iii) Between Settlement Dates, Agent, to the extent Extraordinary Advances for the account of Agent or Swing Loans for the account of a Swing Lender are outstanding, may pay over to Agent or such Swing Lender, as applicable, any payments or other amounts received by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Loans, for application to the Extraordinary Advances or Swing Loans. Between Settlement Dates, Agent, to the extent no Extraordinary Advances or Swing Loans are outstanding, may pay over to the applicable Swing Lender any payments or other amounts received by Agent, that in accordance with the terms of this Agreement would be applied to the reduction of the Revolving Loans, for application to the applicable Swing Lender’s Pro Rata Share of the applicable Revolving Loans. If, as of any Settlement Date, payments or other amounts of Loan Parties or their Subsidiaries received since the then immediately preceding Settlement Date have been applied to a Swing Lender’s Pro Rata Share of the applicable Revolving Loans other than to its Swing Loans, as provided for in the previous sentence, such Swing Lender shall pay to Agent for the accounts of the Lenders, and Agent shall

 

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pay to the Lenders (other than a Defaulting Lender if Agent has implemented the provisions of Section 2.3(g)), to be applied to the outstanding applicable Revolving Loans of such Lenders, an amount such that each such Lender shall, upon receipt of such amount, have, as of such Settlement Date, its Pro Rata Share of the applicable Revolving Loans. During the period between Settlement Dates, a Swing Lender with respect to its Swing Loans, Agent with respect to Extraordinary Advances, and each Lender with respect to the Revolving Loans other than Swing Loans and Extraordinary Advances, shall be entitled to interest at the applicable rate or rates payable under this Agreement on the daily amount of funds employed by such Swing Lender, Agent, or the Lenders, as applicable.

(iv) Anything in this Section 2.3(e) to the contrary notwithstanding, in the event that a Lender is a Defaulting Lender, Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 2.3(g).

(f) Notation. Consistent with Section 13.1(h), Agent, as a non-fiduciary agent for Borrowers, shall maintain a register showing in the Applicable Currency the principal amount and stated interest of the Revolving Loans owing to each Lender, including the Swing Loans owing to the applicable Swing Lender, and Extraordinary Advances owing to Agent, and the interests therein of each Lender, from time to time and such register shall, absent manifest error, conclusively be presumed to be correct and accurate.

(g) Defaulting Lenders.

(i) Notwithstanding the provisions of Section 2.4(b)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by or on behalf of any Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such proceeds of Collateral or payments (A) pertaining to or securing US Obligations, (i) first, to Agent, to the extent of any US Extraordinary Advances that were made by Agent and that were required to be, but were not, paid by the Defaulting Lender, (ii) second, to US Swing Lender to the extent of any US Swing Loans that were made by US Swing Lender and that were required to be, but were not, paid by the Defaulting Lender, (iii) third, to US Issuing Lender, to the extent of the portion of a US Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender, (iv) fourth, to each Non-Defaulting Lender ratably in accordance with their US Revolver Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a US Revolving Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (v) fifth, in Agent’s sole discretion, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of US Borrowers (upon the request of Borrowers and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of US Revolving Loans (or other funding obligations) hereunder, (vi) sixth, to the extent such Collateral also secures any Foreign Obligations, in accordance with Section 2.3(g)(i)(B), and (vii) seventh, from and after the date on which all other US Obligations have been paid in full, to such Defaulting Lender in accordance with tier (A)(xiii) of Section 2.4(b)(ii), and (B) pertaining to or securing any Foreign Obligations, (i) first, to Agent to the extent of any Canadian Extraordinary Advances <and UK Extraordinary

 

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Advances >that were made by Agent and that were required to be, but were not, paid by Defaulting Lender, (ii) second, <on a pro rata basis, >to Canadian Swing Lender to the extent of any Canadian Swing Loans that were made by Canadian Swing Lender and that were required to be, but were not, paid by the Defaulting Lender< and to UK Swing Lender to the extent of any UK Swing Loans that were made by UK Swing Lender and that were required to be, but were not, paid by the Defaulting Lender>, (iii) third<, on a pro rata basis>, to Canadian Issuing Lender, to the extent of the portion of a Canadian Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender< and UK Issuing Lender, to the extent of the portion of a UK Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender>, (iv) fourth, <on a pro rata basis >to each Non-Defaulting Lender ratably in accordance with their Canadian <Revolver Commitments and UK >Revolver Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Canadian <Revolving Loan, UK >Revolving Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (v) fifth, in Agent’s sole discretion, to a suspense account maintained by Agent, the proceeds of which may be retained by Agent and may be made available to be re-advanced to or for the benefit of Canadian Borrowers <or UK Borrowers >(upon the request of Borrowers and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Canadian Revolving Loans<, UK Revolving Loans> (or other funding obligations) hereunder, and (vi) sixth, from and after the date on which all other Foreign Obligations have been paid in full, to such Defaulting Lender in accordance with tier (B)(xii) of Section 2.4(b)(ii). Subject to the foregoing, Agent may hold and, in its discretion, re-lend to the applicable Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fees payable under Section 2.10(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 14.1(a)(i) through (iii). The provisions of this Section 2.3(g) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, Issuing Lenders, and Borrowers shall have waived, in writing, the application of this Section 2.3(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.3(g)(ii) shall be released to the applicable Borrower). The operation of this Section 2.3(g) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to Agent, Issuing Lenders, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrowers, at their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitments of such Defaulting Lender and the Commitments of any Affiliate of such Defaulting Lender, such

 

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substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lenders shall have no right to refuse to be replaced hereunder, and agree to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agree that they shall be deemed to have executed and delivered such document if they fail to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Commitments of such Defaulting Lenders shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.3(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.3(g) shall control and govern.

(ii) If any applicable Swing Loan or Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:

(A) such Defaulting Lender’s Swing Loan Exposure and Letter of Credit Exposure shall be reallocated among the applicable Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (w) the sum of all Non- Defaulting Lenders’ Pro Rata Share of US Revolver Usage plus such Defaulting Lender’s US Swing Loan Exposure and US Letter of Credit Exposure does not exceed the amount by which the total of all Non-Defaulting Lenders’ US Revolver Commitments exceed the US Revolver Usage, (x) the sum of the Dollar Equivalent of all Non-Defaulting Lenders’ Pro Rata Share of Canadian Revolver Usage plus such Defaulting Lender’s Canadian Swing Loan Exposure and Canadian Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders’ Canadian Revolver Commitments, (y) <the sum of the Dollar Equivalent of all Non-Defaulting Lenders’ Pro Rata Share of UK Revolver Usage plus such Defaulting Lender’s UK Swing Loan Exposure and UK Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders’ UK Revolver Commitments>[reserved] and (z) the conditions set forth in Section 3.2 are satisfied at such time;

(B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, the applicable Borrower shall within two Business Days following written notice by Agent (x) first, prepay such Defaulting Lender’s applicable Swing Loan Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), and (y) second, cash collateralize such Defaulting Lender’s applicable Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to Agent and the applicable Borrower, for so long as such Letter of Credit Exposure is outstanding; provided, that Borrowers shall not be obligated to cash collateralize any Defaulting Lender’s Letter of Credit Exposure if such Defaulting Lender is also an Issuing Lender;

 

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(C) if the applicable Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.3(g)(ii), such Borrower shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section 2.6(b) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;

(D) to the extent the Letter of Credit Exposure of the Non- Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance with such Non-Defaulting Lenders’ Letter of Credit Exposure;

(E) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.3(g)(ii), then, without prejudice to any rights or remedies of any Issuing Lender or any Lender hereunder, all Letter of Credit Fees that would have otherwise been payable to such Defaulting Lender under Section 2.6(b) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the applicable Issuing Lender until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized or reallocated;

(F) so long as any Lender is a Defaulting Lender, no Swing Lender shall be required to make any Swing Loan and no Issuing Lender shall be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender’s Pro Rata Share of such Swing Loans or Letter of Credit cannot be reallocated pursuant to this Section 2.3(g)(ii) or (y) the applicable Swing Lender or Issuing Lender, as applicable, has not otherwise entered into arrangements reasonably satisfactory to the applicable Swing Lender or Issuing Lender, as applicable, and the applicable Borrowers to eliminate such Swing Lender’s or Issuing Lender’s risk with respect to the Defaulting Lender’s participation in such Swing Loans or Letters of Credit; and

(G) Agent may release any cash collateral provided by Borrowers pursuant to this Section 2.3(g)(ii) to the applicable Issuing Lender and such Issuing Lender may apply any such cash collateral to the payment of such Defaulting Lender’s Pro Rata Share of any Letter of Credit Disbursement that is not reimbursed by the applicable Borrowers pursuant to Sections 2.11A(d) and 2.11B(d), as applicable. Subject to Section 17.14, 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) If any Lender with a US <Revolver Commitment, UK >Revolver Commitment or Canadian Revolver Commitment is a Defaulting Lender, then any Affiliate of such Lender with a US Revolver Commitment<, UK Revolver Commitment> or Canadian Revolver Commitment shall be deemed to be a Defaulting Lender.

(h) Independent Obligations. All Revolving Loans (other than Swing Loans and Extraordinary Advances) shall be made by the Lenders contemporaneously and in

 

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accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Revolving Loan (or other extension of credit) hereunder, nor shall any Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.

2.4. Payments; Reductions of Commitments; Prepayments.

(a) Payments by Borrowers.

(i) Except as otherwise expressly provided herein, all payments by Borrowers shall be made to Agent’s Applicable Account for the account of the Lender Group and shall be made in immediately available funds in the Applicable Currency, no later than 4:30 p.m. on the date specified herein. Any payment received by Agent later than 4:30 p.m. shall be deemed to have been received (unless Agent, in its sole discretion, elects to credit it on the date received) on the following Business Day and any applicable interest or fee shall continue to accrue until such following Business Day.

(ii) Unless Agent receives notice from Borrowers prior to the date on which any payment is due to the Lenders that Borrowers will not make such payment in full as and when required, Agent may assume that Borrowers have made (or will make) such payment in full to Agent on such date in immediately available funds and Agent may (but shall not be so required), in reliance upon such assumption, distribute to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent Borrowers do not make such payment in full to Agent on the date when due, each Lender severally shall repay to Agent on demand such amount distributed to such Lender, together with interest thereon at the Defaulting Lender Rate for each day from the date such amount is distributed to such Lender until the date repaid.

(b) Apportionment and Application.

(i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of an Issuing Lender) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates. Subject to Section 2.4(b)(iv) and Section 2.4(e), all payments to be made hereunder by US Borrowers shall be remitted to Agent and all such payments, and all proceeds of Collateral securing US Obligations received by Agent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, to reduce the balance of the US Revolving Loans outstanding and, thereafter, to US Borrowers (to be wired to the US Designated Account) or such other Person entitled thereto under applicable law. Subject to Section 2.4(b)(iv) and Section 2.4(e), all payments in respect of Canadian Obligations to be made

 

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hereunder by Canadian Borrowers shall be remitted to Agent and all such payments, and all proceeds of Collateral securing Canadian Obligations (other than <(x) >Collateral also securing US Obligations, which shall be applied first to the US Obligations< and (y) Collateral also securing UK Obligations, which shall be applied pro rata to UK Obligations and Canadian Obligations>) received by Agent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, to reduce the balance of the Canadian Revolving Loans outstanding and, thereafter, to a Canadian Borrower (to be wired to the Canadian Designated Account) or such other Person entitled thereto under applicable law. <Subject to