FIRST Amendment TO FIFTH amended and restated CREDIT AGREEMENT
Exhibit 10.1
EXECUTION VERSION
FIRST Amendment TO FIFTH amended and restated CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of April 17, 2023, by and among (A) PERFORMANCE FOOD GROUP, INC., a Colorado corporation (the “Lead Borrower”); (B) the other Borrowers identified on the signature pages hereto (together with the Lead Borrower, the “Borrowers”); (C) PFGC, INC., as a Guarantor (“Holdings”); (D) the Lenders signatory hereto; and (E) ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent for the Lenders (“Administrative Agent”).
RECITALS
WHEREAS, the Borrowers, Holdings, the Lenders party thereto, and the Administrative Agent are parties to that certain Fifth Amended and Restated Credit Agreement dated as of September 17, 2021 (as amended, restated, supplemented or otherwise modified from time to time before the date hereof, the “Credit Agreement”).
WHEREAS, the Borrowers have requested certain amendments to the Credit Agreement as more fully described herein; and
WHEREAS, the Administrative Agent and the Lenders party hereto have agreed, subject to the terms and conditions set forth herein, to such amendments to the Credit Agreement as provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Definitions. In addition to other terms which may be defined herein (including, without limitation, in the preamble and recitals to this Agreement), terms used, but not defined, herein shall have the meanings given such terms in the Credit Agreement (as amended hereby).
Amendments to Credit Agreement. The Credit Agreement is amended as follows:
Composite Credit Agreement. The Credit Agreement is amended by deleting the stricken text (indicated textually in the same manner as the following example: stricken text) and by adding the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the marked pages of the Credit Agreement attached as Annex A hereto.
SOFR Notice. The Exhibits to the Credit Agreement are hereby amended by adding Exhibit M attached as Annex B hereto.
Effectiveness. This Agreement shall become effective on the date upon which each of the following conditions precedent is satisfied (such date, the “First Amendment Effective Date”):
Execution of Counterparts of Agreement. The Administrative Agent shall have received counterparts of this Agreement duly executed by the Borrowers, Holdings, the Lenders, and the Administrative Agent, each of which shall be an original, facsimile, or in an electronic format acceptable to the Administrative Agent (followed promptly by an original).
Execution of Counterparts of Guarantor Acknowledgement. The Administrative Agent shall have received counterparts of the Guarantor Acknowledgement duly executed by the Guarantors (other than Holdings), each of which shall be an original, facsimile, or in an electronic format acceptable to the Administrative Agent (followed promptly by an original).
Fees and Expenses. The Administrative Agent shall have been paid all other fees owed to it and, to the extent required by the Credit Agreement, reimbursed for all reasonable, invoiced out-of-pocket costs and expenses incurred by the Administrative Agent in connection with this Agreement, including the reasonable, invoiced fees and disbursements of counsel for the Administrative Agent.
Limited Effect. Except as expressly provided herein, the Credit Agreement and the other Loan Documents shall remain unmodified and in full force and effect. This Agreement shall not be deemed (a) to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Credit Agreement or any other Loan Document or a waiver of any Default or Event of Default, (b) to prejudice any right or rights which Administrative Agent or Lenders may now have or may have in the future under or in connection with the Credit Agreement or the other Loan Documents or any of the instruments or agreements referred to therein, as the same may be amended, restated, supplemented or modified from time to time, or (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with any Borrower or any other Person with respect to any waiver, amendment, modification or any other change to the Credit Agreement or the Loan Documents or any rights or remedies arising in favor of Lenders or Administrative Agent, or any of them, under or with respect to any such documents.
Representations and Warranties.
General Representations and Warranties. Each Loan Party party hereto represents and warrants that (i) it has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, (ii) it has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Agreement, (iii) this Agreement has been duly executed and delivered on behalf of such Loan Party, and (iv) this Agreement constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms; provided, that the enforceability hereof is subject to general principles of equity, to a covenant of good faith and fair dealing and to bankruptcy, insolvency and similar laws affecting the enforcement of creditors’ rights generally.
Specific Representations and Warranties.
Each Loan Party party hereto represents and warrants that (A) the representations and warranties made by such Loan Party set forth in the Loan Documents are true and correct in all material respects on and as of the First Amendment Effective Date; provided, that any representation and warranty made as of an earlier date shall remain true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall remain true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (B) no Default or Event of Default has occurred and is continuing or will result after giving effect to this Agreement on and as of the First Amendment Effective Date; and
Holdings represents and warrants that on the First Amendment Effective Date, after giving effect to the transactions contemplated by this Agreement to occur on the First Amendment Effective Date, Holdings and its Subsidiaries, on a consolidated basis, are Solvent.
Execution in Counterparts; Loan Document. This Agreement is a Loan Document. This Agreement may be executed by means of (a) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and
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admissibility in evidence as an original manual signature. The Administrative Agent reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument. Delivery of an executed counterpart of a signature page of this Agreement as set forth herein will be as effective as delivery of a manually executed counterpart of the Agreement. Each of the parties hereto represents and warrants to the other parties that it has the corporate capacity and authority to execute the Agreement through electronic means and there are no restrictions for doing so in that party’s constitutive documents.
Governing Law; Waiver of Right to Trial by Jury. THIS AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING GOVERNING LAW AND WAIVER OF RIGHT TO TRIAL BY JURY SET FORTH IN SECTIONS 10.16 AND 10.17 OF THE CREDIT AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.
Entire Agreement. This Agreement is the entire agreement, and supersedes any prior agreements and contemporaneous oral agreements, of the parties concerning its subject matter. The recitals to this Agreement are incorporated herein by this reference.
Successors and Assigns. This Agreement shall be binding on and inure to the benefit of the parties and their respective heirs, beneficiaries, successors and permitted assigns.
Reaffirmation of Obligations. Immediately after giving effect to this Agreement, each of Holdings and each Borrower reaffirms each Lien granted by it to the Administrative Agent for the benefit of the Secured Parties under each of the Loan Documents to which it is a party, which Liens shall continue in full force and effect during the term of the Credit Agreement as amended by this Agreement, and shall continue to secure the Obligations (after giving effect to this Agreement), in each case, on and subject to the terms and conditions set forth in the Credit Agreement, as amended by this Agreement, and the other Loan Documents, and hereby restates, ratifies, and reaffirms each and every term and condition set forth in the Credit Agreement and the Loan Documents to which it is a party as such Loan Documents are effective as of the date hereof and as amended hereby on the First Amendment Effective Date. Each of Holdings and each Borrower hereby acknowledges and agrees that, immediately after giving effect to this Agreement, all of its respective obligations and liabilities under the Loan Documents to which it is a party, as such obligations and liabilities have been amended by this Agreement, are reaffirmed and remain in full force and effect.
[Continued on following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers, all as of the day and year first written above.
PERFORMANCE FOOD GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
PFGC, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
ADMINISTRATIVE AGENT: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
Atlantic Union Bank,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
BARCLAYS BANK PLC,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
Bank of Montreal, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
Bank of America, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Sr. Vice President
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
CAPITAL ONE, NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇
Title: Senior Director
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
Citizens Bank, National Association, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
Credit Suisse AG, Cayman Islands Branch,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
Fifth Third Bank, N.A.
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
JPMorgan Chase Bank, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, N.A.,
as a Lender
By: /s/ ▇▇▇ ▇▇▇
Name: ▇▇▇ ▇▇▇
Title: Authorized Signatory
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
PNC Bank, National Association,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Title: Vice President
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
Regions Bank, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
TD Bank, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
Truist Bank, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: VP
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
U.S. BANK NATIONAL ASSOCATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
Guarantor Acknowledgement
Each of the undersigned, in its capacity as a Guarantor, acknowledges that its consent to the foregoing Agreement is not required, but each of the undersigned nevertheless does hereby consent to the foregoing Agreement and to the documents and agreements referred to therein. Nothing herein shall in any way limit any of the terms or provisions of the Guaranty of the undersigned or the Collateral Documents executed by the undersigned in the Administrative Agent’s and the Lenders’ favor, or any other Loan Document executed by the undersigned (as the same may be amended from time to time), all of which are hereby ratified and affirmed in all respects, and remain in full force and effect.
Immediately after giving effect to the foregoing Agreement, each Guarantor reaffirms each Lien granted by it to the Administrative Agent for the benefit of the Secured Parties under each of the Loan Documents to which it is a party, which Liens shall continue in full force and effect during the term of the Credit Agreement as amended by this Agreement, and shall continue to secure the Obligations (after giving effect to this Agreement), in each case, on and subject to the terms and conditions set forth in the Credit Agreement, as amended by this Agreement, and the other Loan Documents, and hereby restates, ratifies and reaffirms each and every term and condition set forth in the Credit Agreement and the Loan Documents to which it is a party as such Loan Documents are effective as of the date hereof and as amended hereby on the First Amendment Effective Date. Each Guarantor hereby acknowledges and agrees that, immediately after giving effect to this Agreement, all of its respective obligations and liabilities under the Loan Documents to which it is a party, as such obligations and liabilities have been amended by this Agreement, are reaffirmed, and remain in full force and effect.
[Continued on following page.]
GUARANTORS: AFFLINK, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
AFFLINK HOLDING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
CME TRANSCO, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
CODA COFFEE, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
CONTINENTAL CONCESSION SUPPLIES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
CORE-MARK DISTRIBUTORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
CORE-MARK HOLDING COMPANY, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
CORE-MARK INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
CORE-MARK INTERRELATED COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
CORE-MARK MIDCONTINENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
▇▇▇-▇▇▇▇▇ COMPANY, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
▇▇▇-▇▇▇▇▇ FLORIDA, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
FOODSERVICE PURCHASING GROUP, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
FOX RIVER FOODS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
INSTITUTION FOOD HOUSE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
LIBERTY DISTRIBUTION COMPANY, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
THE MERCHANTS COMPANY, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
MISSISSIPPI VALLEY FREIGHT SERVICE, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
NDA MARKETING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
OHIO PIZZA PRODUCTS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
OLD HICKORY LOGISTICS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
PERFORMANCE MANUFACTURING, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
PERFORMANCE TRANSPORTATION, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
PFG SPECIALTY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
PFG TRANSCO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
PFST HOLDING CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
PREFERRED POPCORM, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
PREFERRED SNACKS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
▇▇▇▇▇▇▇▇ FOODSERVICE, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
▇▇▇▇▇▇▇▇ FOODSERVICE LOUISIANA, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
▇▇▇▇▇▇▇▇ LOUISIANA HOLDINGS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
▇▇▇▇▇▇▇▇ TRANSPORTATION, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
SUNRISE FRESH PRODUCE, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
SOURCES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
▇. ▇. ▇▇▇▇▇▇▇▇▇ & CO., INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
VISTAR TRANSPORTATION, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
[PFG—FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
ANNEX A
[See attached.]
U.S. $4,000,000,000
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 17, 2021
among
PERFORMANCE FOOD GROUP, INC.,
as Lead Borrower for the Borrowers named herein,
PFGC, INC.,
as Holdings,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and Collateral Agent,
and
THE OTHER LENDERS PARTY HERETO
________________
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
BANK OF AMERICA, N.A.,
BMO CAPITAL MARKETS,
COӦPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
JPMORGAN CHASE BANK, N.A.,
U.S. BANK, NATIONAL ASSOCIATION,
CAPITAL ONE, NATIONAL ASSOCIATION,
PNC BANK, NATIONAL ASSOCIATION,
TRUIST SECURITIES, INC.,
as Joint Lead Arrangers and Joint Bookrunners
BANK OF AMERICA, N.A.,
BMO CAPITAL MARKETS,
JPMORGAN CHASE BANK, N.A.,
CAPITAL ONE, NATIONAL ASSOCIATION,
COӦPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
as Syndication Agents
U.S. BANK, NATIONAL ASSOCIATION,
PNC BANK, NATIONAL ASSOCIATION,
TRUIST BANK,
as Documentation Agents
ARTICLE I
Definitions and Accounting Terms
Section 1.01 Defined Terms 1
Section 1.02 Other Interpretive Provisions 9493
Section 1.03 Accounting Terms 9594
Section 1.04 Rounding 9594
Section 1.05 References to Agreements, Laws, Etc 95
Section 1.06 Times of Day 9695
Section 1.07 Timing of Payment or Performance 9695
Section 1.08 Currency Equivalents Generally 9695
Section 1.09 Letter of Credit Amounts 9796
Section 1.10 Divisions 9796
Section 1.11 Limited Condition Acquisitions 9796
Section 1.12 Rates 9897
Section 1.13 Quebec Interpretation 9998
ARTICLE II
The Commitments and Credit Extensions
Section 2.01 Commitment of the Lenders 9998
Section 2.02 Reserves; Changes to Reserves 10199
Section 2.03 Borrowings, Conversions and Continuations of Revolving Loans 102100
Section 2.04 Overadvances 104102
Section 2.05 Swingline Loans 104103
Section 2.06 Letters of Credit 105104
Section 2.07 Optional Termination or Reduction of Commitments 115114
Section 2.08 Optional Prepayment of Loans; Reimbursement of Lenders 117116
iii
Section 2.09 Mandatory Prepayment; Commitment Termination; Cash Collateral 119117
Section 2.10 Interest 120118
Section 2.11 Fees 120119
Section 2.12 Computation of Interest and Fees 122120
Section 2.13 Evidence of Indebtedness 122121
Section 2.14 Payments Generally 123121
Section 2.15 Sharing of Payments 125123
Section 2.16 Settlement Among Lenders 126124
Section 2.17 Additional Commitments 127125
Section 2.18 Designation of Lead Borrower as Borrowers’ Agent 132131
Section 2.19 Cash Management 133132
Section 2.20 Maintenance of Loan Account; Statements of Account 136135
Section 2.21 Additional Borrowers 137135
Section 2.22 Additional Caribbean Parties 137136
Section 2.23 Extension Amendments 139137
Section 2.24 Defaulting Lenders 142141
Section 2.25 SOFR Option. 144
ARTICLE III
Taxes, Increased Costs Protection and Illegality
Section 3.01 Taxes 145148
Section 3.02 Illegality 149[Reserved] 151
Section 3.03 Inability to Determine Rates 149[Reserved] 151
Section 3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on LIBOR Loans 149Requirements 151
Section 3.05 Funding Losses 151[Reserved] 153
iv
Section 3.06 Matters Applicable to All Requests for Compensation 151153
Section 3.07 Replacement of Lenders under Certain Circumstances 152153
Section 3.08 Survival 154155
Section 3.09 Benchmark Replacement Setting 154
ARTICLE IV
Conditions Precedent to Credit Extensions
Section 4.01 Conditions of Initial Credit Extension 156155
Section 4.02 Conditions to All Credit Extensions 159158
ARTICLE V
Representations and Warranties
Section 5.01 Existence, Qualification and Power; Compliance with Laws 160159
Section 5.02 Authorization; No Contravention 160159
Section 5.03 Governmental Authorization; Other Consents 160159
Section 5.04 Binding Effect 161160
Section 5.05 Financial Statements; No Material Adverse Effect 161160
Section 5.06 Litigation 161160
Section 5.07 No Default 161160
Section 5.08 Ownership of Property; Liens 162161
Section 5.09 Environmental Compliance 162161
Section 5.10 Taxes 163162
Section 5.11 ERISA Compliance; Canadian Pension Matters 163162
Section 5.12 Subsidiaries; Equity Interests 164163
Section 5.13 Margin Regulations; Investment Company Act 164163
Section 5.14 Disclosure 165164
Section 5.15 Solvency 165164
v
Section 5.16 Subordination of Junior Financing 165164
Section 5.17 Collateral Documents 165164
Section 5.18 Senior Indebtedness 165164
Section 5.19 Anti-Corruption Laws and Sanctions 166165
Section 5.20 Certain Licenses 166165
Section 5.21 Representations as to Caribbean Parties 166165
ARTICLE VI
Affirmative Covenants
Section 6.01 Financial Statements 168167
Section 6.02 Certificates; Other Information 170169
Section 6.03 Notices 173172
Section 6.04 Payment of Obligations 173172
Section 6.05 Preservation of Existence, Etc 174173
Section 6.06 Maintenance of Properties 174173
Section 6.07 Maintenance of Insurance 174173
Section 6.08 Compliance with Laws 175174
Section 6.09 Books and Records 175174
Section 6.10 Inspection Rights 175174
Section 6.11 Covenant to Guarantee Obligations and Give Security 177176
Section 6.12 Compliance with Environmental Laws 178177
Section 6.13 Further Assurances and Post Closing Conditions 179178
Section 6.14 Information Regarding Collateral 179178
Section 6.15 Physical Inventories 180179
Section 6.16 Corporate Separateness 180179
Section 6.17 Consolidated Fixed Charge Coverage Ratio 180179
vi
Section 6.18 Additional Real Property and Rolling Stock; Term Collateral Release; Term Collateral Subordination 181180
Section 6.19 OFAC; Sanctions; Anti-Corruption Laws; Anti-Money Laundering Laws. 183182
ARTICLE VII
Negative Covenants
Section 7.01 Liens 184183
Section 7.02 Investments 188187
Section 7.03 Indebtedness 193192
Section 7.04 Fundamental Changes 196195
Section 7.05 Dispositions 198197
Section 7.06 Restricted Payments 201200
Section 7.07 Change in Nature of Business 206205
Section 7.08 Transactions with Affiliates 206205
Section 7.09 Burdensome Agreements 207206
Section 7.10 Use of Proceeds 208207
Section 7.11 Accounting Changes 208207
Section 7.12 Prepayments, Etc. of Indebtedness 208207
Section 7.13 Permitted Activities of Holdings 210209
Section 7.14 Designated Account 211210
Section 7.15 Designation of Subsidiaries 211210
ARTICLE VIII
Events of Default and Remedies
Section 8.01 Events of Default 211210
Section 8.02 Remedies Upon Event of Default 214213
Section 8.03 Exclusion of Immaterial Subsidiaries 215214
vii
Section 8.04 Application of Funds 215214
ARTICLE IX
Agents
Section 9.01 Appointment and Authorization of Agents 217216
Section 9.02 Delegation of Duties 218217
Section 9.03 Liability of Agents 218217
Section 9.04 Reliance by Agents 218217
Section 9.05 Notice of Default 219218
Section 9.06 Credit Decision; Disclosure of Information by Agents 219218
Section 9.07 Indemnification of Agents 220219
Section 9.08 Agents in their Individual Capacities 220219
Section 9.09 Successor Agents 220219
Section 9.10 Administrative Agent May File Proofs of Claim 221220
Section 9.11 Collateral and Guaranty Matters 222221
Section 9.12 Other Agents; Arranger and Managers 224223
Section 9.13 Appointment of Supplemental Administrative Agents 224223
Section 9.14 Withholding Tax 225224
Section 9.15 Reports and Financial Statements 225224
Section 9.16 Acceptable Intercreditor Agreements 226225
Section 9.17 Erroneous Payments 227226
ARTICLE X
Miscellaneous
Section 10.01 Amendments, Etc. 229228
Section 10.02 Notices and Other Communications; Facsimile Copies 232231
Section 10.03 Joint and Several Obligations; No Waiver; Cumulative Remedies 233232
viii
Section 10.04 Attorney Costs and Expenses 233232
Section 10.05 Indemnification by the Borrowers 234233
Section 10.06 Payments Set Aside 235234
Section 10.07 Successors and Assigns. 235234
Section 10.08 Confidentiality 239238
Section 10.09 Setoff 241240
Section 10.10 Interest Rate Limitation 241240
Section 10.11 Counterparts 242241
Section 10.12 Integration 242241
Section 10.13 Survival of Representations and Warranties 242241
Section 10.14 Severability 242241
Section 10.15 Tax Forms 243242
Section 10.16 GOVERNING LAW 245244
Section 10.17 WAIVER OF RIGHT TO TRIAL BY JURY 245244
Section 10.18 Binding Effect 246245
Section 10.19 Judgment Currency 246245
Section 10.20 Lender Action 246245
Section 10.21 USA PATRIOT Act; CAML 247246
Section 10.22 Agent for Service of Process 247246
Section 10.23 Amendment and Restatement; No Novation 248247
Section 10.24 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 248247
Section 10.25 Certain Real Property Matters. 249248
Section 10.26 Certain ERISA Matters 249
Section 10.27 Acknowledgement Regarding Any Supported QFCs 251250
Section 10.28 Appointment for the Province of Quebec 252251
ix
SCHEDULES
A Authorized Persons
I Commitments
1.01A Guarantors
1.01B Certain Security Interests and Guarantees
1.01C Unrestricted Subsidiaries
1.01D Excluded Subsidiaries
1.01E Eligible Real Property
1.01F Existing Letters of Credit
1.01G Approved Caribbean Jurisdictions
2.19 Loan Disbursement Account
2.19(b) Bank Accounts
5.06 Litigation
5.11(a) ERISA Compliance
5.12 Subsidiaries and Other Equity Investments
6.02(f) Financial and Collateral Reports
6.13(c) Post-Closing Matters
7.01(b) Existing Liens
7.02(g) Existing Investments
7.03(b) Existing Indebtedness
7.08 Transactions with Affiliates
7.09 Existing Restrictions
10.02 Administrative Agent’s Office, Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan NoticeReserved
B-1 Revolving Credit Note
B-2 Swingline Note
C Compliance Certificate
D Assignment and Assumption
E Reserved
F Reserved
G Reserved
H Reserved
I Customs Broker Agreement
J Borrowing Base Certificate
K Borrower Request and Assumption Agreement
L Borrower Notice
M SOFR Notice
x
xi
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
This FIFTH AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of September 17, 2021, among PERFORMANCE FOOD GROUP, INC. (f/k/a Vistar Corporation), a Colorado corporation (the “Lead Borrower”), the other Borrowers from time to time party hereto, PFGC, INC. (f/k/a Vistar Management, Inc.), a Delaware corporation (“Holdings”), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION (as successor by merger to Wachovia Bank, National Association), as Administrative Agent and Collateral Agent and each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”).
PRELIMINARY STATEMENTS
The Lead Borrower, Holdings and the other Borrowers party thereto have entered into that certain Amended and Restated Credit Agreement dated as of December 30, 2019, as amended by that certain First Amendment to Fourth Amended and Restated Credit Agreement dated as of April 29, 2020, and as further amended by that certain Second Amendment to Fourth Amended and Restated Credit Agreement dated as of May 15, 2020 (such agreement, as so amended and as the same may have been otherwise amended, supplemented or modified from time to time prior to the date hereof, the “Existing Credit Agreement”) with ▇▇▇▇▇ Fargo, as Administrative Agent and Collateral Agent thereunder, and each lender from time to time party thereto.
The Borrowers and Holdings have requested that the Administrative Agent and the Lenders amend and restate the Existing Credit Agreement, which shall continue the senior revolving credit and letter of credit facilities to the Borrowers on the terms set forth herein.
The Lenders and the Issuing Bank have indicated their willingness to amend and restate the Existing Credit Agreement and make the Loans and issue the Letters of Credit on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
Definitions and Accounting Terms
. As used in this Agreement, the following terms shall have the meanings set forth below:
“2025 Senior Notes” means the Lead Borrower’s 6.875% Senior Notes due 2025 in the aggregate principal amount of $275,000,000, issued pursuant to the 2025 Senior Notes Indenture.
“2025 Senior Notes Indenture” means that certain Indenture dated as of April 24, 2020, by and among the Lead Borrower and U.S. Bank National Association, as trustee, transfer agent,
registrar, and paying agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“2027 Senior Notes” means the Lead Borrower’s 5.50% Senior Notes due 2027 in the aggregate principal amount of $1,060,000,000, issued pursuant to that certain Indenture dated as of September 27, 2019, by and among the 2027 Senior Notes Issuer and U.S. Bank National Association, as trustee, registrar, and paying agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“2027 Senior Notes Issuer” means (a) before the 2027 Escrow Merger, PFG Escrow Corporation, as “Escrow Issuer” thereunder, and (b) at and after the 2027 Escrow Merger, the Lead Borrower, as “Issuer” thereunder.
“2029 Senior Notes” means the Lead Borrower’s 4.250% Senior Notes due 2029 in the aggregate principal amount of $1,000,000,000, issued pursuant to the 2029 Senior Notes Indenture.
“2029 Senior Notes Indenture” means that certain Indenture dated as of July 26, 2021, by and among the Lead Borrower and U.S. Bank National Association, as trustee, transfer agent, registrar, and paying agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“Acceptable Intercreditor Agreement” means, with respect to any Additional Permitted Debt and any Liens on Term Collateral securing such Additional Permitted Debt in accordance with Section 7.01(ee), any intercreditor or subordination agreement which (i) is by and among or between the Collateral Agent and all other Persons in whose favor any of such Liens are or are to be granted (or a trustee, agent, or other representative on their behalf); (ii) provides for, among other things, (A) the subordination of the Collateral Agent’s Liens on such Term Collateral to such Liens (to the extent such Liens are intended to be senior to the Collateral Agent’s Liens on such Term Collateral, as contemplated in Section 6.18(c)) or (B) the subordination of such Liens to the Collateral Agent’s Liens on such Term Collateral (to the extent such Liens are intended to be junior to the Collateral Agent’s Liens on such Term Collateral, as contemplated in Section 6.18(c)); and (iii) is in form and substance reasonably satisfactory to the Administrative Agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“Account Party” has the meaning specified therefor in Section 2.06(h) of this Agreement.
“Account(s)” means “accounts” as defined in the Uniform Commercial Code (or the PPSA to the extent applicable) and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of or (b) for services rendered or to be rendered. The term “Account” does not include (a) rights to payment evidenced by chattel paper or an instrument, (b) commercial tort claims, (c) deposit accounts, (d) investment property, or (e) letter-of-credit rights or letters of credit, except to the extent they evidence or arise from an Account or constitute proceeds of an Account.
“Account Debtor” means a Person who is obligated under an Account, Chattel Paper or General Intangible.
2
“Accounts Advance Rate” means (a) for Tranche A Loans, 90%, and (b) for Tranche A-1 Loans, 95%.
“ACH” means automated clearing house transfers.
“Acquired Accounts” means Accounts owing to a Person that becomes a Borrower Party after the Fifth Restatement Effective Date (or, in the case of the Core-Mark Acquired Companies, on the Fifth Restatement Effective Date) or acquired in a Permitted Acquisition or any other acquisition; provided, however, that such Accounts shall cease to be Acquired Accounts upon the Administrative Agent’s receipt or completion of (a) a field audit of such Accounts and (b) such other customary due diligence as the Administrative Agent may reasonably require, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent.
“Acquired Accounts (CM)” means Acquired Accounts owned by any Core-Mark Acquired Company or any of its Subsidiaries.
“Acquired Borrowing Base Assets” means Acquired Accounts and Acquired Inventory (including Acquired Accounts (CM) and Acquired Inventory (CM)).
“Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Converted Restricted Subsidiary for any Test Period, the amount for such Test Period of Consolidated EBITDA of such Acquired Entity or Business, all as determined on a consolidated basis for such Acquired Entity or Business.
“Acquired Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA”.
“Acquired Inventory” means Inventory (including affixed or unaffixed Tax Stamps) owned by a Person that becomes a Borrower Party after the Fifth Restatement Effective Date (or, in the case of the Core-Mark Acquired Companies, on the Fifth Restatement Effective Date) or Inventory acquired in a Permitted Acquisition or any other acquisition; provided, however, that such Inventory shall cease to be Acquired Inventory upon the Administrative Agent’s receipt or completion of (a) appraisals, from appraisers reasonably satisfactory to the Administrative Agent, of such Inventory, (b) a field audit of such Inventory, and (c) such other due diligence as the Administrative Agent may reasonably require, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent.
“Acquired Inventory (CM)” means Acquired Inventory which is owned by any Core-Mark Acquired Company or any of its Subsidiaries.
“Add-Back Cushion Amount” means $10,000,000 for any Test Period and shall include the first incurred add-backs added back pursuant to clauses (a)(v) and (a)(vi) of the definition of Consolidated EBITDA and the third proviso of the definition of Pro Forma Adjustment prior to calculating the 15% and 20% limitations on add-backs set forth in such clauses and proviso, respectively.
“Additional Commitments” has the meaning specified in Section 2.17(a).
3
“Additional Committing Lender” has the meaning specified in Section 2.17(d).
“Additional Credit Amendment” has the meaning specified in Section 2.17(d).
“Additional Credit Closing Date” has the meaning specified in Section 2.17(d).
“Additional Extension Amendment” has the meaning specified in Section 2.23(c).
“Additional Issuing Banks” means those Lenders which have been approved by the Administrative Agent (such approval not to be unreasonably withheld) and the Lead Borrower and that have agreed (each in its sole discretion) to act as an “Issuing Bank” hereunder, as provided in Section 2.06(t). Any of the foregoing to contrary notwithstanding, each of JPMorgan Chase Bank, N.A., and BMO ▇▇▇▇▇▇ Bank, N.A., respectively, shall be deemed to be an Additional Issuing Bank solely with respect to those Existing Letters of Credit identified on Schedule 1.01F as having been issued by it (along with any amendments, extensions, or renewals thereof).
“Additional Junior Term Loans” has the meaning specified in Section 2.17(b).
“Additional Lender” has the meaning specified in Section 2.17(d).
“Additional Loans” has the meaning specified in Section 2.17(a).
“Additional Pari Passu Term Loans” has the meaning specified in Section 2.17(b).
“Additional Permitted Debt” means:
(a) the Senior Notes;
(b) additional term Indebtedness; provided that (i) such Indebtedness is incurred on terms and conditions (other than pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption provisions) that, in the good faith determination of the Lead Borrower, are not materially less favorable (when taken as a whole) to the Borrowers than the terms and conditions of this Agreement and the other Loan Documents (when taken as a whole) (provided that a certificate of the Lead Borrower as to the satisfaction of the conditions described in this clause (i) delivered at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of documentation relating thereto, stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirements of this clause (i), shall be conclusive unless the Administrative Agent notifies the Lead Borrower within such five Business Day period that it disagrees with such determination (including a description of the basis upon which it disagrees)); (ii) such Indebtedness is unsecured or secured pursuant to Section 7.01(ee); (iii) such Indebtedness has a final maturity date which is at least 91 days after the later of the Maturity Date and any Extended Maturity Date existing at the time such Indebtedness is incurred (other than an earlier maturity date for customary fundamental change, make-whole fundamental change, change of control or other similar event risk provisions or customary bridge financings which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for a maturity date earlier than 91 days after such Maturity Date or any Extended Maturity Date); (iv)
4
such Indebtedness does not amortize or has a per annum rate of amortization not to exceed 1.00% of the original principal amount thereof (or such other rate or schedule of amortization or mandatory payments acceptable to the Administrative Agent in its reasonable discretion); (v) immediately after giving effect thereto the Consolidated Secured Net Leverage Ratio determined on a Pro Forma Basis for the Test Period would be less than or equal to 5.50 to 1.00; (vi) immediately after giving effect thereto the Consolidated Total Leverage Ratio determined on a Pro Forma Basis for the Test Period would be less than or equal to 6.25 to 1.00; and (vii) at the time such Indebtedness is incurred and immediately after giving effect thereto, no Default shall have occurred and be continuing; and
(c) any Permitted Refinancing of any of the foregoing Indebtedness.
“Additional Permitted Debt Documents” means all loan agreements, indentures, note purchase agreements, promissory notes, guarantees, any related Acceptable Intercreditor Agreement, and other instruments and agreements evidencing the terms of the Additional Permitted Debt.
“Additional Real Property” has the meaning provided in Section 6.18(a).
“Additional Revolving Commitments” has the meaning specified in Section 2.17(a).
“Additional Rolling Stock” has the meaning provided in Section 6.18(b).
“Additional Term Loan Commitments” has the meaning specified in Section 2.17(a).
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Adjustment Date” has the meaning provided in clause (a)(iii) of the definition of “Applicable Rate.”
“Administrative Agent” means ▇▇▇▇▇ Fargo, in its capacity as administrative agent under the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account as the Administrative Agent may from time to time notify the Lead Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
5
“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Agent-Related Persons” means the Agents, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
“Agents” means, collectively, the Administrative Agent and the Collateral Agent and the Supplemental Administrative Agents (if any).
“Aggregate Commitments” means the Commitments of all the Lenders.
“Aggregate Pro Rata Share” means, at any time of determination and with respect to any Lender, the percentage of the sum of such ▇▇▇▇▇▇’s Revolving Credit Extensions in relation to the sum of all Revolving Credit Extensions.
“Aggregate Revolving Commitments” means the Revolving Commitments of all the Revolving Lenders.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“Agreement Currency” has the meaning specified in Section 10.19.
“Alternate Availability” means, on any date of determination, Suppressed Excess Availability; provided, however, that at all times that Excess Availability is less than 10% of the Revolving Credit Amount, “Alternate Availability” shall mean Excess Availability.
“Announcements” has the meaning specified therefor in Section 1.12 of this Agreement.
“Anti-Corruption Laws” means the FCPA, the U.K. Bribery Act of 2010, as amended, the Corruption of Foreign Public Officials Act (Canada) and all other applicable laws and regulations or ordinances concerning or relating to bribery or corruption in any jurisdiction in which any Loan Party or any of its Subsidiaries or Affiliates is located or is doing business.
“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.
“Applicable Caribbean Party Documents” has the meaning specified in Section 5.21(a).
“Applicable Rate” means:
(a) With respect to the Tranche A Loans:
6
(i) at all times before the Fifth Restatement Effective Date, a percentage per annum determined by reference to the Credit Agreement before giving effect to the amendment to the Credit Agreement effected on the Fifth Restatement Effective Date;
(ii) on and after the Fifth Restatement Effective Date until the first Adjustment Date after the Fifth Restatement Effective Date, a percentage per annum equal to the applicable percentage set forth in Level II of the pricing grid below; and
(iii) on the first day of each calendar quarter (each, an “Adjustment Date”), commencing with the first calendar quarter beginning after the Fifth Restatement Effective Date, a percentage per annum equal to the applicable percentage determined from the following pricing grid and based upon average daily Excess Availability for the most recently ended calendar quarter immediately preceding such Adjustment Date:
Level |
Average Daily |
Tranche A |
Tranche A |
I |
Greater than or equal to the Level I Amount |
1.00% |
0.00% |
II |
Greater than or equal to the Level II Amount, but less than the Level I Amount |
1.25% |
0.25% |
III |
Greater than or equal to the Level III Amount, but less than the Level II Amount |
1.50% |
0.50% |
IV |
Less than the Level III Amount |
1.75% |
0.75% |
As used in this clause (a):
(A) “Level I Amount” means, at any time of determination, 60% of the Loan Cap;
(B) “Level II Amount” means, at any time of determination, 25% of the Loan Cap; and
(C) “Level III Amount” means, at any time of determination, 15% of the Loan Cap.
(b) With respect to the Tranche A-1 Loans:
(i) at all times before the Fifth Restatement Effective Date, a percentage per annum determined by reference to the Credit
7
Agreement before giving effect to the amendment to the Credit Agreement effected on the Fifth Restatement Effective Date;
(ii) on and after the Fifth Restatement Effective Date, (A) 2.25% per annum with respect to any such Loan which is a LIBORSOFR Loan and (B) 1.25% per annum with respect to any such Loan which is a Base Rate Loan; provided, however, that, at all times that the Applicable Rate with respect to Tranche A Loans is, in fact, determined by reference to Level I of the table in the immediately preceding clause (a)(iii), the Applicable Rate for Tranche A-1 Loans shall be (X) 2.00% per annum with respect to any such Loan which is a LIBORSOFR Loan and (Y) 1.00% per annum with respect to any such Loan which is a Base Rate Loan.
“Applicant Borrower” has the meaning provided in Section 2.21(a).
“Applicant Caribbean Party” has the meaning provided in Section 2.22(a).
“Appraised Value” means, on any date of determination, (a) with respect to any Eligible Real Property, the fair market value of such Eligible Real Property as of such date pursuant to the applicable Real Property Appraisal received by, and reasonably acceptable to, the Administrative Agent and (b) with respect to any Eligible Rolling Stock, the NOLV Percentage of such Eligible Rolling Stock as of such date pursuant to the applicable Rolling Stock Appraisal received by, and reasonably acceptable to, the Administrative Agent.
“Approved Caribbean Jurisdictions” means (a) those jurisdictions identified on Schedule 1.01G, (b) in the case of an Applicant Caribbean Party seeking to become a Borrower, such other jurisdictions in the Caribbean basin as are approved by each of the Lenders and (c) in the case of an Applicant Caribbean Party seeking to become a Guarantor, such other jurisdictions in the Caribbean basin as are approved by a Super Majority of Revolving Lenders.
“Approved Fund” means, with respect to any Lender, any Fund that is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.
“Assignees” has the meaning specified in Section 10.07(b)(i).
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit D.
“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external legal counsel.
“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP. Further to Section 1.03 and for the avoidance of doubt, the definition of “Attributable Indebtedness” shall not include any obligations of a Person under a lease of (or other arrangement conveying the right-to-use or right-of-use with
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respect to) real or personal property, or a combination thereof, which are not required to be classified and accounted for as “finance lease obligations” on the balance sheet of such Person in accordance with GAAP, including, without limitation, Accounting Standards Codification 842 and related accounting rules and regulations, as such may be amended or re-codified from time to time, notwithstanding that GAAP and such accounting rules and regulations (including Accounting Standards Codification 842) may require such lease obligations to be recognized on the balance sheet of such Person as a lease liability (along with the related right-of-use asset).
“Authorized Person” means any one of the individuals identified as an officer of a Borrower on Schedule A to this Agreement, or any other individual identified by Lead Borrower as an authorized person and authenticated through Administrative Agent’s electronic platform or portal in accordance with its procedures for such authentication.
“Availability Reserves” means, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria, such reserves as the Administrative Agent, from time to time determines in its reasonable commercial discretion exercised in good faith as being appropriate (a) to reflect any impediments to the realization upon the Collateral subject to the Borrowing Base (including, without limitation, claims that the Administrative Agent determines will need to be satisfied in connection with the realization upon such Collateral), and (b) to reflect any restrictions in any Additional Permitted Debt Documents on the incurrence of Indebtedness by the Loan Parties, but only to the extent that such restrictions reduce, or with the passage of time could reduce, the amounts available to be borrowed hereunder (including, without limitation as a result of the Loan Parties’ receipt of net proceeds from asset sales) in order for the Loan Parties to comply with such Additional Permitted Debt Documents. Availability Reserves shall include, without limitation, the Priority Payable Reserves, Bank Product Reserves, the Cash Management Reserves, Tax Stamp Reserves, and Inventory Reserves.
“Available Amount” means, at any time (the “Reference Date”), an amount equal to the sum of (a) the greater of (i) $250,000,000 and (ii) the Available Amount Percentage of Consolidated Net Income for the Available Amount Reference Period (or in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit); plus (b) to the extent not utilized in connection with other transactions permitted pursuant to Section 7.12, the aggregate amount of Net Cash Proceeds of the type set forth in clause (a) thereof retained by the Lead Borrower during the period from and including the Business Day immediately following the Original Closing Date through and including the Reference Date (but excluding therefrom the amount of any Designated Funds (so long as such funds remain Designated Funds)); plus (c) the amount of any capital contributions or Net Cash Proceeds from Permitted Equity Issuances (or issuance of debt securities that have been converted or exchanged into Qualified Equity Interests) (other than Specified Equity Contributions or any other capital contributions or equity or debt issuances to the extent utilized in connection with other transactions permitted pursuant to Section 7.02, 7.06 or 7.12) received or made by the Lead Borrower (or any direct or indirect parent thereof and contributed by such parent to the Lead Borrower) during the period from and including the Business Day immediately following the Original Closing Date through and including the Reference Date (but excluding therefrom the amount of any Designated Funds (so long as such funds remain Designated Funds)); minus (d) the aggregate amount of any Investments made pursuant to Section 7.02(n) (net of any return of capital in respect of such Investment or deemed reduction in the amount of such Investment including, without limitation, upon the re-designation
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of any Unrestricted Subsidiary as a Restricted Subsidiary or the Disposition of any such Investment), any Restricted Payment made pursuant to Section 7.06(k)(i), or any payment of Indebtedness made pursuant to Section 7.12(a)(iii) or Section 7.12(a)(vi)(A) during the period commencing on the Original Closing Date and ending on or before the Reference Date (and, for purposes of this clause (d), without taking account of the intended usage of the Available Amount on such Reference Date).
“Available Amount Percentage” means 50%.
“Available Amount Reference Period” means, with respect to any Reference Date, the period commencing at the beginning of the fiscal quarter in which the Original Closing Date occurred and ending on the last day of the most recent fiscal quarter or fiscal year, as applicable, for which financial statements are required to be delivered pursuant to Section 6.01(a) or Section 6.01(b), and the related Compliance Certificate required to be delivered pursuant to Section 6.02(a), have been received by the Administrative Agent.
“Available Incremental Amount” means, on any date of determination and without duplication, the positive amount, if any, by which (a) $800,000,000 exceeds (b) the sum of (i) the aggregate principal amount of all Additional Term Loans made after the Fifth Restatement Effective Date pursuant to Section 2.17 and which remain outstanding as of such date of determination plus (ii) all Additional Revolving Commitments established after the Fifth Restatement Effective Date pursuant to Section 2.17 and which remain in effect as of such date of determination (in each case, after giving pro forma effect to the repayment of any Additional Term Loans and the termination of any Additional Revolving Commitments, in each case, in connection with the making of any proposed Additional Term Loans or the establishment or funding of any Additional Revolving Commitments).
(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
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(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 resolutions 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 Provider” means any Lender or any Affiliate of a Lender (and with respect to Swap Contracts, any Lender or Affiliate of a Lender who (x) was a Lender or an Affiliate of a Lender at the time such Swap Contract was entered into and who is no longer a Lender or an Affiliate of a Lender, and (y) is, and at all times remains, in compliance with the provisions of Section 9.15(a) and (z) agrees in writing that the Agents and the other Secured Parties shall have no duty to such Person (other than the payment of any amounts to which such Person may be entitled under Section 8.04) and acknowledges that the Agents and the other Secured Parties may deal with the Loan Parties and the Collateral as they deem appropriate (including the release of any Loan Party or all or any portion of the Collateral) without notice or consent from such Person, whether or not such action impairs the ability of such Person to be repaid its Other Liabilities). For purposes hereof, the Administrative Agent and/or its Affiliates shall be Bank Product Providers with respect to the Swap Contracts provided by them and in effect on the Fifth Restatement Effective Date.
“Bank Product Reserves” means such reserves as the Administrative Agent, from time to time after the occurrence and during the continuation of a Trigger Event (Cash Dominion) (except as provided in Section 2.02), determines in its reasonable commercial discretion exercised in good faith as being appropriate to reflect the reasonably anticipated liabilities and obligations of the Loan Parties with respect to Bank Products then provided or outstanding.
“Bank Products” means any services or facilities (other than Cash Management Services) provided to any Loan Party by any Bank Product Provider on account of (a) credit cards, debit cards, or stored value cards, (b) so-called “purchase cards,” “p-cards,” or “procurement cards,” (c) payment card processing services, (d) merchant services constituting a line of credit, and (e) Swap Contracts, in each case which has been designated to the Administrative Agent by the Lead Borrower or such Bank Product Provider at the time such Bank Product is entered into (or, in the case of any of the foregoing which are in effect on the Fifth Restatement Effective Date, on the Fifth Restatement Effective Date) as being Obligations under this Agreement.
“Base Rate” means, for any day, the greatest of (a) the Floor, (b) the Federal Funds Rate in effect on such day plus ½%, (bc) LIBOR (which rate shall be calculated based upon an Interest Period of one month and shall be determined on a daily basis), plus one percentage pointTerm SOFR for a one month tenor in effect on such day, plus 1%, provided that this clause (c) shall not be applicable during any period in which Term SOFR is unavailable or unascertainable, and (cd) the rate of interest announced, from time to time, within ▇▇▇▇▇ Fargo at its principal office in San Francisco as its “prime rate” in effect on such day, with the understanding that the “prime rate” is one of ▇▇▇▇▇ 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 ▇▇▇▇▇ Fargo may designate (and, if any such announced rate is below zero, then the rate determined pursuant to this clause (c) shall be deemed to be zero).
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“Base Rate Loan” means a Loan that bears interest at a rate based on the Base Rate.
“Benchmark” means, initially, USD LIBORthe Term SOFR Reference Rate; 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 has occurred with respect to USD LIBORthe Term SOFR Reference Rate 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 3.09(a2.25(d)(iii)(A).
“Benchmark Replacement” means, for any Available Tenor,
(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 Administrative Agent for the applicable Benchmark Replacement Date:
(i) the sum of: (A) Term SOFR and (B) the related Benchmark Replacement Adjustment;
(ii) the sum of: (A) Daily Simple SOFR and (B) the related Benchmark Replacement Adjustment;
(iii) the sum of: (Aa) the alternate benchmark rate that has been selected by the Administrative Agent and the Lead Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (1i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (2ii) 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 Administrative Agent decides that Term SOFR is not administratively feasible for Administrative 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 Administrative Agent in its reasonable discretion. If the if such Benchmark Replacement as so determined pursuant to clause (a)(i), (a)(ii) or (a)(iii) or clause (b) of this definition would be less than the Floor, thesuch Benchmark Replacement willshall 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
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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 Administrative Agent and Lead Borrower giving due consideration to (ia) 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 (iib) 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.
“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 Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents) at such time.
“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); or
(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;
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(c) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after Administrative Agent has provided the Term SOFR Notice to the Lenders and Lead Borrower pursuant to Section 3.09(a)(ii); or
(d) in the case of an Early Opt-in Election, the sixth Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as Administrative Agent has not received,first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by 5:00 p.m. on the fifth Business Day afterregulatory supervisor for the date noticeadministrator 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 forBenchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such determinationclause (c) and (B)even if the then-current Benchmark has any Available Tenors, the “Tenor of such 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)such component thereof) continues to be provided on such date.
“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 of Governors, 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
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(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 longernot, or as of a specified future date will not be, 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 Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means the period (if any) (ax) 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 3.092.25(d)(iii) and (by) 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 3.092.25(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.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”
“Blocked Account” has the meaning provided in Section 2.19(b).
“Blocked Account Agreement” has the meaning provided in Section 2.19(b).
“Blocked Account Banks” means the banks with whom deposit accounts are maintained in which material amounts (as reasonably determined by the Administrative Agent) of funds of any of the Loan Parties from one or more DDAs are concentrated and with whom a Blocked Account Agreement has been, or is required to be, executed in accordance with the terms hereof.
“Board of Governors” means the Board of Governors of the Federal Reserve System of the United States (or any successor).
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“Borrower Materials” has the meaning given such term in Section 10.08.
“Borrower Notice” means a notice in substantially the form of Exhibit L.
“Borrower Party” means, collectively (a) the Lead Borrower, (b) each other Loan Party that is a Domestic Subsidiary of the Lead Borrower, (c) each other Loan Party that is a Canadian Subsidiary of the Lead Borrower, and (d) each Caribbean Party.
“Borrower Request and Assumption Agreement” means a notice and agreement in substantially the form of Exhibit K.
“Borrowers” means, collectively, (a) the Lead Borrower, (b) the Borrowers identified on the signature pages hereto, (c) each other Domestic Subsidiary of the Lead Borrower who owns assets of the type subject to the Borrowing Base and becomes a Borrower hereunder in accordance with the terms of this Agreement, and (d) each Caribbean Borrower.
“Borrowing” means (a) a borrowing consisting of Loans of one Class of the same Type and, in the case of LIBORSOFR Loans, having the same Interest Period, made by each of the Lenders pursuant to Section 2.01 or (b) a Swingline Loan.
“Borrowing Base” means the Tranche A-1 Borrowing Base or, if the Tranche A-1 Commitments have been terminated, the Tranche A Borrowing Base.
“Borrowing Base Certificate” has the meaning provided in Section 6.01(e).
“Breakage Costs” has the meaning provided in Section 3.05.
“Business Day” means any day other thanthat is not a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located; provided that if such day relates to any interest rate settings as to an LIBOR Loan, any fundings, disbursements, settlements and payments in respect of any such LIBOR Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such LIBOR Loan, means any such day on which dealings in deposits are conducted by and between banks in the London interbank eurodollar marketthe Federal Reserve Bank of New York is closed.
“CAML” shall mean the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and other anti-terrorism laws and “know your client” policies, regulations, laws or rules applicable in Canada, including any guidelines or orders thereunder.
“Canadian Defined Benefit Plan” means any Canadian Pension Plan that contains a “defined benefit provision” as defined in subsection 147.1(1) of the Income Tax Act (Canada).
“Canadian Dollars” and “CAD$” each means the lawful currency of Canada.
“Canadian Guarantor” means a Guarantor that is (i) organized under the laws of Canada or any province or territory thereof, and (ii) not a non-resident of Canada for purposes of the Income Tax Act (Canada).
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“Canadian Multi-Employer Plan” shall mean any “multi-employer pension plan” as defined in the Pension Benefits Act (Ontario), or any similar plan subject to any other applicable federal or provincial pension standards legislation in Canada, to which a Loan Party is required to contribute or participate.
“Canadian Pension Event” shall mean the occurrence of any of the following: (a) Holdings, the Lead Borrower or any Subsidiary initiates any action or filing to voluntarily terminate or wind up (in whole or in part) any Canadian Defined Benefit Plan; (b) the institution of proceedings by a Governmental Authority to terminate or wind-up (in whole or in part) any Canadian Defined Benefit Plan; (c) the termination or wind-up (in whole or in part) of any Canadian Defined Benefit Plan; or (d) the withdrawal of any Loan Party or any Subsidiary from any Canadian Multi-Employer Plan where such withdrawal would give rise to an obligation on the part of Holdings, the Lead Borrower or any Subsidiary to contribute to any unfunded liability in respect thereof.
“Canadian Pension Plan” means a 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 Pension Benefits Act (Ontario) or other Canadian federal or provincial law with respect to pension benefits standards and that is maintained or contributed to by a Loan Party or any of its Subsidiaries for its Canadian 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, without duplication, such reserves as may be established from time to time by the Administrative Agent in its reasonable commercial discretion exercised in good faith with respect to any Borrower Party organized under the laws of Canada or any province or territory thereof, representing: (a) the amount past due and owing by such Borrower Party, or the accrued amount for which such Borrower 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, sales taxes, employee income taxes, municipal taxes and other taxes payable or to be remitted or withheld; (ii) workers’ compensation or employment insurance; (iii) vacation or holiday pay; (iv) federal Canada Pension Plan or other statutory pension plan contributions; and (v) other like charges and demands 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 (such as certain claims by employees for unpaid wages and other amounts payable under the Wage Earner Protection Program Act (Canada)); and (b) the aggregate amount of any other liabilities of such Borrower Party (i) in respect of which a trust or deemed trust has been or may be imposed on any Collateral of such Borrower Party to provide for payment, or (ii) in respect of unpaid or unremitted pension plan contributions, normal cost contributions or special payments under Canadian Pension Plans, and (iii) representing any unfunded liability, solvency deficiency or wind-up deficiency with respect to a Canadian Pension Plan that is a Canadian Defined Benefit Plan, or (iv) which are secured by a Lien, right or claim on any Collateral; in all cases, pursuant to any applicable law, rule or regulation only to the extent such Lien, trust, deemed trust, right or claim ranks or, in the reasonable commercial 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.
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“Canadian Security Agreement” means the Canadian Security Agreement executed by the Canadian Subsidiaries on the Fifth Restatement Effective Date, together with each other security agreement supplement executed and delivered pursuant to Sections 6.11, 6.13 or 6.18.
“Canadian Subsidiary” means any Subsidiary that is organized under the Laws of Canada or any of its provinces or territories.
“Capital Asset” means, with respect to any Person, any asset that should, in accordance with GAAP, be classified and accounted for as a capital asset on a consolidated balance sheet of such Person, including, without limitation, all assets represented by Capitalized Software Expenditures.
“Capital Expenditures” means with respect to any Person for any period, the aggregate cost of all Capital Assets acquired by such Person and its Subsidiaries during such period, as determined in accordance with GAAP, including, without limitation, all Capitalized Software Expenditures.
“Capitalized Lease Obligation” means, at any time of determination, the amount of the liability in respect of a Capitalized Lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet prepared in accordance with GAAP (but subject to Section 1.03 and the definition of “Capitalized Lease”).
“Capitalized Leases” means (a) at all times before Holdings implements Account Standards Codification 842, all leases that are required to be, in accordance with GAAP as in effect at such time, recorded as capitalized leases and (b) thereafter, any lease of (or other arrangement conveying the right-to-use or right-of-use with respect to) real or personal property, or a combination thereof, which obligations effectively transfer control of the underlying asset and constitute an in-substance financed purchase of an asset and as to which the amount of the obligations related thereto are required to be classified and accounted for as “finance leases” on the balance sheet of such Person, in accordance with GAAP, including, without limitation, Accounting Standards Codification 842 and related accounting rules and regulations, as such may be amended or re-codified from time to time; provided that for all purposes hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted for as a liability in accordance with GAAP; provided, further and for avoidance of doubt, the term “Capitalized Lease” does not include any operating leases entered into in the ordinary course of business that do not effectively transfer control of the underlying asset and do not represent an in-substance financed purchase of an asset under GAAP, including, without limitation, Accounting Standards Codification 842 and related accounting rules and regulations, as such may be amended or re-codified from time to time, notwithstanding that GAAP and such accounting rules and regulations, such as Accounting Standards Codification 842, may require that such obligations be recognized on the balance sheet of such Person as a lease liability (along with the related right-of-use asset).
“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by Holdings, the Lead Borrower and the Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or
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are required to be reflected as capitalized costs on the consolidated balance sheet of Holdings, the Borrowers and the Restricted Subsidiaries.
“Captive Insurance Subsidiary” means PICL Insurance Co. (f/k/a Performance Insurance Company Limited) and any other Subsidiary of Holdings (including, for the avoidance of doubt, PICL Investments Inc.), in each case, that is a Restricted Subsidiary established and operating solely for the purpose of (a) insuring the business operations or properties owned or operated by Holdings or any of its Subsidiaries, including their employees and related benefits, and/or (b) conducting any activities or business incidental thereto (it being understood and agreed that activities which are relevant or appropriate to qualify as an insurance company for U.S. federal or state tax purposes shall be considered “activities or business incidental thereto”).
“Caribbean Borrower” means a Caribbean Subsidiary that is a Borrower pursuant to Section 2.22.
“Caribbean Guarantor” means a Caribbean Subsidiary that is a Guarantor pursuant to Section 2.22.
“Caribbean Parties” means, collectively, (a) the Caribbean Borrowers and (b) the Caribbean Guarantors.
“Caribbean Subsidiary” means a Restricted Subsidiary of the Lead Borrower that is organized in an Approved Caribbean Jurisdiction.
“Cash Collateral Account” means an interest-bearing account established by the Loan Parties with the Collateral Agent, for its own benefit and the benefit of the other Secured Parties, under the sole and exclusive dominion and control of the Collateral Agent, in the name of the Collateral Agent or as the Collateral Agent shall otherwise direct, in which deposits are required to be made in accordance with this Agreement.
“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Lead Borrower or any Restricted Subsidiary:
(1) Dollars;
(2) (a) Sterling, Euros or any national currency of any Participating Member State of the EMU or (b) in the case of any Foreign Subsidiary or Canadian Subsidiary that is a Restricted Subsidiary, such local currencies held by it from time to time in the ordinary course of business;
(3) securities issued or directly and fully and unconditionally guaranteed or insured by the United States government or the government of Canada or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24 months or less from the date of acquisition;
(4) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with
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maturities not exceeding one year and overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000 in the case of U.S. banks and $100,000,000 (or the Dollar Equivalent as of the date of determination) in the case of non-U.S. banks;
(5) repurchase obligations for underlying securities of the types described in clauses (3), (4) and (8) entered into with any financial institution meeting the qualifications specified in clause (4) above;
(6) commercial paper rated at least P-1 by ▇▇▇▇▇’▇ or at least A-1 by S&P and in each case maturing within 24 months after the date of creation thereof and Indebtedness or Preferred Stock issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from ▇▇▇▇▇’▇ with maturities of 24 months or less from the date of acquisition;
(7) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either ▇▇▇▇▇’▇ or S&P, respectively (or, if at any time neither ▇▇▇▇▇’▇ nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Borrower) and in each case maturing within 24 months after the date of creation or acquisition thereof;
(8) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either ▇▇▇▇▇’▇ or S&P with maturities of 24 months or less from the date of acquisition;
(9) readily marketable direct obligations issued by any foreign government or any political subdivision or public instrumentality thereof, in each case having an Investment Grade Rating from either ▇▇▇▇▇’▇ or S&P with maturities of 24 months or less from the date of acquisition;
(10) Investments with average maturities of 12 months or less from the date of acquisition in money market funds rated within the top three ratings category by S&P or ▇▇▇▇▇’▇; and
(11) investment funds investing 90% of their assets in securities of the types described in clauses (1) through (10) above.
In the case of Investments by any Foreign Subsidiary or Canadian Subsidiary that is a Restricted Subsidiary or Investments made in a country outside the United States of America, Cash Equivalents shall also include (i) investments of the type and maturity described in clauses (1) through (8) and clauses (10) and (11) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (ii) other short-term investments utilized by Foreign Subsidiaries or Canadian Subsidiaries that are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (11) and in this paragraph.
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Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above, provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten (10) Business Days following the receipt of such amounts.
“Cash Management Reserves” means such reserves as the Administrative Agent, from time to time after the occurrence and during the continuation of a Trigger Event (Cash Dominion), determines in its reasonable commercial discretion exercised in good faith as being appropriate to reflect the reasonably anticipated liabilities and obligations of the Loan Parties with respect to Cash Management Services then provided or outstanding.
“Cash Management Services” means any one or more of the following types of services or facilities provided to any Loan Party by any Lender or any Affiliate of a Lender: (a) ACH transactions, (b) treasury and/or cash management services, including, without limitation, controlled disbursement services, (c) foreign exchange facilities, (d) credit or debit cards, (e) deposit and other accounts, (f) merchant services (other than those constituting a line of credit), and (g) supply chain finance services for the Lead Borrower and its Subsidiaries’ trade payables.
“Cash Receipts” has the meaning provided in Section 2.19(c).
“Casualty Event” means any event that gives rise to the receipt by the Lead Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets, Real Property (including any improvements thereon) or Rolling Stock to replace or repair such equipment, fixed assets or Real Property.
“Certain Specified Payments” means, with respect to any period, (A) the creation of any Lien referenced in Section 7.01(dd), (B) the proviso at the end of Section 7.02, (C) the making of any Disposition under Section 7.05(d), (D) the making of any Restricted Payment under Section 7.06(e), or (E) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary which Subsidiary has assets included in the calculation of the Borrowing Base immediately prior to such Subsidiary’s being designated as an Unrestricted Subsidiary.
“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, judgment or treaty, (b) any change in any law, rule, regulation, judicial ruling, 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) any new, or adjustment to, requirements prescribed by the Board of Governors for “Eurocurrency Liabilities” (as defined in Regulation D of the Board of Governors), requirements imposed by the Federal Deposit Insurance Corporation, or similar requirements imposed by any domestic or foreign governmental authority or resulting from compliance by Administrative Agent or any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority and related in any manner to SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or (d) 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 ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith, and (ii) all
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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; provided that the increased costs associated with such Change in Law may only be imposed to the extent the applicable Lender imposes the same charges on other similarly situated borrowers under comparable facilities.
“Change of Control” means the earliest to occur of:
(a) any person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Fifth Restatement Effective Date, but excluding any employee benefit plan of such person and its Subsidiaries, and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than any combination of any “group” including any Permitted Holders, shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the voting interest in Holdings’ Equity Interests (or if an Intermediate Holding Company is formed, the Intermediate Holding Company’s Equity Interests) and the Permitted Holders shall own, directly or indirectly, less than such person or “group” on a fully diluted basis of the voting interest in Holdings’ Equity Interests (or if an Intermediate Holding Company is formed, the Intermediate Holding Company’s Equity Interests); or
(b) any “Change of Control” (or any comparable term) in any Additional Permitted Debt Document; or
(c) the Lead Borrower ceases to be a direct wholly owned subsidiary of (i) Holdings or (ii) if any Intermediate Holding Company is formed, the Intermediate Holding Company that is a direct parent of the Lead Borrower.
“Chattel Paper” has the meaning assigned to such term in the applicable Security Agreement.
“CIS Assets” means assets of Holdings and its Subsidiaries consisting of racking, materials handling equipment and Intellectual Property other than Excluded Intellectual Property, together with other assets mutually agreed to by the Lead Borrower and the Administrative Agent, but in any event shall exclude (a) any assets subject to the Borrowing Base and (b) any Excluded Intellectual Property.
“Class,” when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Tranche A Loans or Tranche A-1 Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Tranche A Commitment or a Tranche A-1 Commitment.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and rules and regulations related thereto.
“Collateral” means all property, whether real, personal, or mixed, of any Loan Party which, under any Collateral Document, is or is intended to be collateral or security for any or all
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of the Obligations, including, without limitation, all “Collateral” as defined in any Collateral Document and all property of any Loan Party which is subject to a Mortgage.
“Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Collateral Agent executed by (a) a bailee or other Person in possession of Collateral, including, without limitation, any warehouseman, and (b) a landlord of Real Property leased by any Loan Party (including, without limitation, any warehouse or distribution center), pursuant to which such Person (i) acknowledges the Collateral Agent’s Lien on the Collateral, (ii) releases or subordinates such Person’s Liens in the Collateral held by such Person or located on such Real Property, (iii) agrees to furnish the Collateral Agent with access to the Collateral in such Person’s possession or on Real Property for the purposes of conducting a Liquidation and (iv) makes such other agreements with the Collateral Agent as the Collateral Agent may reasonably require.
“Collateral Agent” means ▇▇▇▇▇ Fargo, in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent.
“Collateral and Guarantee Requirement” means, at any time, the requirement that:
(a) the Administrative Agent shall have received each Collateral Document required to be delivered on the Fifth Restatement Effective Date pursuant to Section 4.01(a)(iii) or pursuant to Section 6.11 or 6.13 at such time, duly executed by each Loan Party thereto;
(b) all Obligations shall have been unconditionally guaranteed (the “Loan Party Guarantees”) by (i) Holdings, (ii) any Intermediate Holding Company, (iii) each Restricted Subsidiary of Holdings that is a wholly owned Material Domestic / Canadian Subsidiary (other than any Borrower (except to the extent of their joint and several obligations hereunder) or any Excluded Subsidiary), including those that are listed on Schedule 1.01A hereto and (iv) any Caribbean Guarantor (each, a “Guarantor”);
(c) except to the extent otherwise provided hereunder or under any Collateral Document or in any Acceptable Intercreditor Agreement, the Obligations and the Loan Party Guarantees shall have been secured by a perfected security interest (to the extent such security interest may be perfected by delivering certificated securities or filing Uniform Commercial Code or PPSA financing statements) in (i) all the Equity Interests of the Borrowers, (ii) all Equity Interests (other than Equity Interests of Unrestricted Subsidiaries and any Equity Interest of any Restricted Subsidiary pledged to secure Indebtedness permitted under Section 7.03(g) or (h)) of (A) each Material Domestic / Canadian Subsidiary (provided, however, that, if, in the in the reasonable judgment of the Lead Borrower (confirmed in writing by notice to the Administrative Agent), the cost or other consequences (including any adverse tax consequences) of granting such security interest in the Equity Interests issued by any Material Canadian Subsidiary shall be material, then such security interest shall be limited to 65% of the issued and outstanding voting Equity Interests (and 100% of the issued and outstanding non-voting Equity Interests, if any) of such Material Canadian Subsidiary), (B) the Borrowers (including Caribbean Borrowers), (C) any Guarantor (excluding Holdings, but including Caribbean Guarantors and any
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Canadian Subsidiary which is a Guarantor), and (D) any Special Purpose Receivables Subsidiary (provided that, with respect to this clause (ii), Equity Interests of non-wholly owned Subsidiaries shall only be pledged to the extent such pledge is permitted by applicable law, the Organization Documents thereof and any equityholders’ agreement relating thereto) and (iii) 65% of the issued and outstanding voting Equity Interests (and 100% of the issued and outstanding non-voting Equity Interests, if any) of each wholly owned Material Foreign Subsidiary (other than a Caribbean Party) that is directly owned by Holdings, or any Domestic Subsidiary or Canadian Subsidiary of Holdings that is a Guarantor;
(d) except to the extent otherwise provided hereunder or under any Collateral Document, the Obligations and the Loan Party Guarantees shall have been secured by a perfected security interest (other than in the case of Eligible Real Property and Eligible Rolling Stock, to the extent such security interest may be perfected by delivering certificated securities, filing Uniform Commercial Code or PPSA financing statements or making any necessary filings with the United States Patent and Trademark Office, United States Copyright Office or Canadian Intellectual Property Office, as applicable) in substantially all tangible and intangible assets constituting personal property of Holdings, the Borrowers and each Guarantor (including accounts receivable, inventory, cash, deposit accounts, equipment, investment property, intercompany notes, Intellectual Property, other general intangibles, owned (but not leased) Real Property and proceeds of the foregoing); provided that security interests in (i) Real Property shall be limited to Real Property included, or intended to be included, as Eligible Real Property and (ii) Rolling Stock shall be limited to Rolling Stock included, or intended to be included, as Eligible Rolling Stock; provided, further, that this clause (d) shall not apply to any Term Collateral described in this clause (d), to the extent a Term Collateral Release has occurred with respect to such Term Collateral, specifically or by type or class (and has not been rescinded, as contemplated in Section 6.18(d));
(e) none of the Collateral shall be subject to any Liens other than Permitted Liens;
(f) [reserved];
(g) with respect to any Rolling Stock included, or intended to be included, as Eligible Rolling Stock, the applicable Borrower Party shall, to the extent such Rolling Stock is subject to a certificate of title (or similar) statute under applicable Law, (i) deliver a certificate of title with respect thereto to the Collateral Agent (or any agent or trustee acceptable to the Collateral Agent) and (ii) cause such certificate of title to be registered with the applicable Governmental Authority showing the Collateral Agent (or any agent or trustee acceptable to the Collateral Agent) as the lienholder thereon, such that such Rolling Stock is subject to a perfected first priority security interest in favor of the Collateral Agent (subject only to Permitted Liens having priority by operation of applicable Law); and
(h) with respect to any Non-Territorial Caribbean Party, the Administrative Agent shall have received satisfactory evidence that it has a first-priority, perfected security interest in Eligible Accounts and Eligible Inventory of such Non-Territorial Caribbean Party under the laws of such Non-Territorial Caribbean Party’s jurisdiction and will have
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available to it adequate remedies to enforce such security interest and fully realize upon such Eligible Accounts and Eligible Inventory under the laws of such Non-Territorial Caribbean Party’s jurisdiction.
The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as, in the reasonable judgment of the Administrative Agent and the Lead Borrower, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or if such assets constitute Term Collateral and a Term Collateral Release has occurred with respect to such Term Collateral, specifically or by type or class (and has not been rescinded, as contemplated in Section 6.18(d)).
The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of local counsel opinions, third party consents, title insurance and surveys with respect to particular assets (including extensions beyond the Fifth Restatement Effective Date for the perfection of security interests and obtaining such other items in respect of the assets of the Loan Parties on such date as may be set forth in Schedule 6.13(c)) and/or where it reasonably determines, in consultation with the Lead Borrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) with respect to leases of Real Property entered into by any Loan Party, such Loan Party shall not be required to take any action with respect to creation or perfection of security interests with respect to such leases (except to the extent contemplated in the definition of Eligible Real Property), (b) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Administrative Agent and the Lead Borrower, (c) the Collateral and Guarantee Requirement shall not apply to any of the following assets: (i) except to the extent contemplated in the definition of Eligible Real Property, any fee-owned Real Property and any leasehold interests in Real Property, (ii) motor vehicles and other assets subject to certificates of title (other than Rolling Stock included, or intended to be included, as Eligible Rolling Stock), letter of credit rights and commercial tort claims, (iii) assets of which a pledge thereof or a security interest therein is prohibited by law or by agreements containing anti-assignment clauses not overridden by the Uniform Commercial Code or other applicable law, (iv) any assets as to which the Administrative Agent and the Lead Borrower agree that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the value to the Lenders of the security to be afforded thereby, (v) assets specifically requiring perfection through control agreements (including, without limitation, deposit accounts and securities accounts) other than as required pursuant to the cash management requirements herein, including pursuant to Section 2.19, (vi) except with respect to the Caribbean Parties (subject to Section 2.22) or any Canadian Guarantor, assets to the extent a security interest in such assets would result in adverse tax consequences as reasonably determined by the Lead Borrower (it being understood that the Lenders shall not (except with respect to Caribbean Parties and Canadian Guarantors) require the Lead Borrower or any of its Subsidiaries to enter into any security agreements or pledge agreements governed under
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foreign law), and (vii) assets which constitute Term Collateral, to the extent a Term Collateral Release has occurred with respect to such Term Collateral, specifically or by type or class (and has not been rescinded, as contemplated in Section 6.18(d)).
Further, any other term or provision of this Agreement or any Loan Document to the contrary notwithstanding (including any Acceptable Intercreditor Agreement or other intercreditor agreement to which the Administrative Agent or the Collateral Agent may be a party), the Administrative Agent and the Collateral Agent may decline any Lien on any Real Property if (a) at the time the Collateral Agent’s Lien would attach to such Real Property, the Collateral Agent’s Lien on such Real Property would be subordinate to any Lien on such Real Property securing Additional Permitted Debt and (b) the Administrative Agent determines, in the exercise of its reasonable discretion, that the cost or difficulty of accepting or obtaining a subordinate Lien on such Real Property would, in terms of costs, regulatory oversight, or regulatory or internal policy compliance, be excessive in view of the benefits to be obtained by the Lenders therefrom.
Further, notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, the Subordinated Contribution Note shall at all times constitute Collateral subject to the Security Agreement and may not be sold, transferred, contributed, distributed, or otherwise disposed of by Holdings to any Person other than (i) in accordance with the Security Agreement or (ii) if an Intermediate Holding Company is formed, to such Intermediate Holding Company; provided that the transfer restrictions set forth in this paragraph shall equally apply to such Intermediate Holding Company.
“Collateral Documents” means, collectively, the Security Agreements, the Intellectual Property Security Agreement, any Collateral Access Agreement, any Deed of Hypothec, any Blocked Account Agreement, any Mortgages, each of the mortgages, collateral assignments, Security Agreement Supplements, security agreements, pledge agreements or other similar agreements, instruments or documents delivered to the Collateral Agent and the Lenders pursuant to Section 4.01(a)(iii), 6.11 or 6.13, the Guaranty and each of the other agreements, instruments or documents that creates or purports to create a Lien or Guarantee in favor of any Agent for the benefit of the Secured Parties.
“Commercial Letter of Credit” means any sight Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by a Borrower or a Restricted Subsidiary in the ordinary course of business of such Borrower or Restricted Subsidiary.
“Commitment” means, with respect to each Lender (a) in the case of any revolving commitments, the aggregate commitments of such Lender hereunder to make Revolving Credit Extensions (including Tranche A Loans and Tranche A-1 Loans) to the Borrowers in the amount set forth opposite its name on Schedule I hereto or as may subsequently be set forth in the Register from time to time, as the same may be increased or reduced from time to time pursuant to this Agreement, including by the establishment of any Additional Revolving Commitments pursuant to Section 2.17; and (b) in the case of any term loan commitments, the commitments of such Lender to make Credit Extensions in the form of term loans to the Borrowers in the amount set forth opposite its name on Schedule I hereto or as may subsequently be set forth in the Register
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from time to time or in any Additional Credit Amendment providing for any Additional Term Loan Commitment or Additional Term Loans.
“Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans of one Class from one Type to the other, or (c) a continuation of LIBOR Loans, pursuant to Section 2.03(a), which, if in writing, shall be substantially in the form of Exhibit A (which such form of notice may be amended, restated, supplemented, or otherwise modified from time to time (including, without limitation, changes to the format thereof) as approved by Administrative Agent in Administrative Agent’s sole discretion).
“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.
“Compensation Period” has the meaning specified in Section 2.14(c)(ii).
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
“Concentration Account” mean Account No. 37235547964500758, ABA No. ▇▇▇-▇▇▇-▇▇▇, at ▇▇▇▇▇ Fargo, titled in the name of “Performance Food Group, Inc., as security for ▇▇▇▇▇ Fargo, as Collateral Agent” or such other account as may be agreed to by the Lead Borrower and the Administrative Agent.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of 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 “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.25(b)(ii) and other technical, administrative or operational matters) that Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Consolidated Depreciation and Amortization Expense” means with respect to any Person for any Test Period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, securitization fees or costs, amortization of intangible assets, and, without limitation, Capitalized Software Expenditures of such Person and its Restricted Subsidiaries for such period on a consolidated basis and determined in accordance with GAAP.
“Consolidated EBITDA” means, with respect to any Person for any Test Period, the Consolidated Net Income of such Person for such period:
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(a) increased (without duplication) by the following, in each case to the extent deducted (and not added back) in determining Consolidated Net Income for such period:
(i) provision for taxes based on income or profits or capital, including, without limitation, state, franchise and similar taxes (such as the Delaware franchise tax, the Pennsylvania capital tax, Texas margin tax and provincial capital taxes paid in Canada) and foreign withholding taxes and penalties and interest relating to taxes of such Person paid or accrued during such period deducted (and not added back) in calculating Consolidated Net Income; plus
(ii) Consolidated Interest Expense of such Person for such period (including (x) net losses or any obligations under any Swap Contracts or other derivative instruments entered into for the purpose of hedging interest rate risk, (y) bank fees and (z) costs of surety bonds in connection with financing activities) to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus
(iii) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same were deducted (and not added back) in computing Consolidated Net Income; plus
(iv) any fees, charges and expenses incurred during such period (other than depreciation or amortization expense), in connection with any acquisition, Investment, Disposition, issuance or repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Fifth Restatement Effective Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction; plus
(v) the amount of any restructuring charges, integration costs, retention charges, or other business optimization expenses, including, without limitation, costs associated with improvements to IT and accounting functions, costs associated with establishing new facilities, costs or reserves deducted (and not added back) in such period in computing Consolidated Net Income, including any one-time costs incurred in connection with acquisitions and costs related to the closure and/or consolidation of facilities; provided that for amounts in excess of the Add-Back Cushion Amount (A) the aggregate amount added pursuant to this clause (v) shall not exceed 15% of Consolidated EBITDA for such period and (B) the aggregate amount added pursuant to this clause (v), together with the aggregate amount added pursuant to clause (vi) and the third proviso of the definition of Pro Forma Adjustment, shall not exceed 20% of Consolidated EBITDA for such period (calculated in each case before giving effect to such add-backs and Pro Forma Adjustments); provided further that upon request of the Administrative Agent, the Borrowers shall furnish a certificate of a Responsible Officer certifying that any such add-backs are reasonably identifiable and factually supportable; plus
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(vi) any non-recurring or unusual losses or expenses, severance, relocation costs, payments made pursuant to the terms of change in control agreements that Holdings or any of its Subsidiaries had entered into with employees of Holdings or its Subsidiaries as of the Original Closing Date and curtailments or modifications to pension and post-retirement employee benefit plans; provided that for amounts in excess of the Add-Back Cushion Amount (A) the aggregate amount added pursuant to this clause (vi) shall not exceed 15% of Consolidated EBITDA for such period and (B) the aggregate amount added pursuant to this clause (vi), together with the aggregate amount added pursuant to clause (v) and the third proviso of the definition of Pro Forma Adjustment, shall not exceed 20% of Consolidated EBITDA for such period (calculated in each case before giving effect to such add-backs and Pro Forma Adjustments); provided further that upon request of the Administrative Agent, the Borrowers shall furnish a certificate of a Responsible Officer certifying that any such add-backs are reasonably identifiable and factually supportable; plus
(vii) any extraordinary losses; plus
(viii) stock option and any other equity-based compensation expenses; plus
(ix) any other non-cash charges, expenses or losses (collectively, the “Non-Cash Charges”) including any write offs or write downs reducing Consolidated Net Income for such period and any non-cash expense relating to the vesting of warrants (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus
(x) the amount of any minority interest expense consisting of Subsidiary income attributable to minority Equity Interests of third parties in any non-wholly owned Subsidiary deducted (and not added back) in such period in calculating Consolidated Net Income; plus
(xi) [reserved]; plus
(xii) any costs or expense incurred by Holdings, the Lead Borrower or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of Holdings or the Lead Borrower; plus
(xiii) any net loss from disposed or discontinued operations; plus
(xiv) cash receipts (or any netting arrangements resulting in reduced cash expenditures) not representing Consolidated EBITDA or Consolidated Net Income
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in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (b) below for any previous period and not added back; plus
(xv) to the extent not already included in the Consolidated Net Income of such Person and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Consolidated EBITDA shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any investment or any sale, conveyance, transfer or other disposition of assets permitted hereunder;
(b) decreased (without duplication) by the following, in each case to the extent included in determining Consolidated Net Income for such period:
(i) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated EBITDA in any prior period and any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase Consolidated EBITDA in such prior period; plus
(ii) any net income from disposed or discontinued operations; plus
(iii) any extraordinary, unusual or non-recurring revenue or gains; and
(c) increased or decreased without duplication, as applicable, by any non-cash adjustments resulting from the application of FASB Interpretation No. 45 (Guarantees).
There shall be included in determining Consolidated EBITDA for any Test Period, without duplication, and subject to each of the applicable limitations set forth above, (A) the Acquired EBITDA of any Person, property, business or asset acquired by Holdings, any Borrower or any Restricted Subsidiary during such period (but not the Acquired EBITDA of any related Person, property, business or assets to the extent not so acquired), to the extent not subsequently sold, transferred or otherwise disposed by Holdings, such Borrower or such Restricted Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”), including the commencement of activities constituting such business, and the Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted Subsidiary during such period (each a “Converted Restricted Subsidiary”), based on the actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted Subsidiary for such period (including the portion thereof occurring prior to such acquisition) and (B) for the purposes of the definition of the term “Permitted Acquisition,” an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) as specified in a certificate executed by a Responsible Officer and delivered to the Lenders and the Administrative Agent. For purposes of determining the Consolidated Fixed Charge Coverage Ratio, there shall be excluded in determining
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Consolidated EBITDA for any period the Disposed EBITDA of any Person, property, business or asset (other than an Unrestricted Subsidiary) sold, transferred or otherwise disposed of, closed or classified as discontinued operations by any Borrower or any Restricted Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”) and the Disposed EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during such period (each a “Converted Unrestricted Subsidiary”), based on the actual Disposed EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition).
“Consolidated Fixed Charge Coverage Ratio” means, with respect to Holdings, the Borrowers and their respective Restricted Subsidiaries for any Test Period for which financial information is available prior to the date of calculation, the ratio of (a)(i) Consolidated EBITDA of Holdings, the Borrowers and their respective Restricted Subsidiaries for such period plus (ii) Net Cash Proceeds of capital contributions received or Permitted Equity Issuances made during such period to the extent used to make payments on account of Debt Service Charges or Taxes, except that only Specified Equity Contributions (and no other equity contributions) may be included for purposes of the calculation of the Consolidated Fixed Charge Coverage Ratio under, and as provided in Section 6.17 hereof minus (iii) taxes based on income or profits or capital, including, without limitation, state, franchise and similar taxes (such as the Delaware franchise tax, the Pennsylvania capital tax, Texas margin tax and provincial income taxes paid in Canada) and foreign withholding taxes and penalties and interest relating to taxes, net of cash refunds received, of Holdings, the Borrowers and their respective Restricted Subsidiaries paid in cash during such period minus (iv) Unfinanced Capital Expenditures made by Holdings, the Borrowers and their respective Restricted Subsidiaries during such period minus (v) Restricted Payments made pursuant to Sections 7.06(h) and (k), to (b) Debt Service Charges payable by Holdings, the Borrowers and their respective Restricted Subsidiaries in cash during such period. In calculating the Consolidated Fixed Charge Coverage Ratio for purposes of Sections 6.17 and 6.02(a), no Restricted Subsidiaries that are Foreign Subsidiaries shall be included in such calculations; provided that the amount of any dividends or other distributions from any Restricted Subsidiary that is a Foreign Subsidiary actually received by a Loan Party in cash during such period shall be included in the computation of Consolidated EBITDA for such purposes. In calculating the Consolidated Fixed Charge Coverage Ratio for the purposes of Section 7.01(dd), 7.02(j), 7.02(n), 7.03(n), 7.05(f), 7.06(k), or 7.12(a)(vi), the Lead Borrower may elect to include in or exclude from the calculation thereof any Restricted Subsidiary that is a Foreign Subsidiary; provided that, notwithstanding the exclusion of any Restricted Subsidiary that is a Foreign Subsidiary from such calculation, the amount of any dividends or other distributions from any Restricted Subsidiary that is a Foreign Subsidiary actually received by a Loan Party in cash during such period shall be included in the computation of Consolidated EBITDA for such purposes. Any such inclusion or exclusion, as the case may be, shall be for the entire twelve-month calculation period, or if less, the entire period during which any such Person was a Restricted Subsidiary. In addition, for purposes of calculating the Consolidated Fixed Charge Coverage Ratio and the component definitions thereof, the payment of any interest, fees or principal required to be included in the calculation thereof, notwithstanding that such payments are or may be required to be paid on a date other than the last day of a fiscal month or fiscal quarter, shall be deemed made on the last day of the fiscal month or fiscal quarter, as applicable, nearest occurring to such actual payment date. For the avoidance of doubt, in calculating Consolidated Fixed Charge Coverage Ratio and
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the component definitions thereof (a) in the case of Indebtedness for borrowed money for which monthly payments are required, there shall be included no more than one payment in any fiscal month or 12 payments in any fiscal year and (b) in the case of Indebtedness for borrowed money for which quarterly payments are required, there shall be included no more than one payment in any fiscal quarter or four payments in any fiscal year.
“Consolidated Interest Expense” means, with respect to any Person for any Test Period, without duplication, the sum of:
(a) consolidated interest expense with respect to Indebtedness of such Person and its Restricted Subsidiaries for such period, determined in accordance with GAAP; plus
(b) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
(c) consolidated interest income for such period.
For purposes of the foregoing, interest expense of Holdings and its Restricted Subsidiaries shall be determined after giving effect to any net payments made or received by such Persons with respect to interest rate Swap Contracts. In addition, financing fees payable on the Fifth Restatement Effective Date shall not be included in Consolidated Interest Expense.
“Consolidated Net Income” means, with respect to any Person for any Test Period, the aggregate of the Net Income, of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided, however, that, without duplication,
(a) the Net Income for such period shall not include the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies during such period,
(b) any net after-tax gains or losses on disposal of disposed, abandoned or discontinued operations shall be excluded,
(c) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments or the sale or other disposition of any Equity Interests of any Person other than in the ordinary course of business shall be excluded,
(d) the Net Income for such period of any Person that is not a Subsidiary, or is an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be excluded; provided that Consolidated Net Income of the first Person shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the first Person or a Restricted Subsidiary thereof in respect of such period,
(e) solely for the purpose of calculating the Available Amount, the Net Income for such period of any Restricted Subsidiary (other than any Guarantor) shall be excluded
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to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of its Net Income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived, provided that Consolidated Net Income of such Person will be increased by the amount of dividends or other distributions or other payments actually paid in cash (or to the extent converted into cash) or Cash Equivalents to such Person or a Restricted Subsidiary thereof in respect of such period, to the extent not already included therein,
(f) effects of adjustments (including the effects of such adjustments pushed down to such Person and its Restricted Subsidiaries) in the inventory (including any impact of changes to inventory valuation policy methods, including changes in capitalization of variances), property and equipment, software, goodwill, other intangible assets, in-process research and development, deferred revenue and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting in relation to any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
(g) any after-tax effect of income (loss) from the early extinguishment of (i) Indebtedness, (ii) obligations under any Swap Contracts or (iii) other derivative instruments shall be excluded,
(h) any impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP shall be excluded,
(i) (i) any non-cash compensation charge or expense, including any such charge arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights and (ii) any cash charges associated with the rollover, acceleration or payout of Equity Interests by management or other employees of Holdings or any of its direct or indirect parent companies or Restricted Subsidiaries resulting from the application of Statement of Financial Accounting Standards No. 123R shall be excluded, and
(j) the following items shall be excluded:
(i) any net unrealized gain or loss (after any offset) resulting in such period from obligations under any Swap Contracts and the application of Statement of Financial Accounting Standards No. 133; and
(ii) any net gain or loss (after any offset) resulting in such period from currency translation gains or losses including those (x) related to currency
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re-measurements of Indebtedness and intercompany loans and (y) resulting from hedge agreements for currency exchange risk.
“Consolidated Secured Net Debt” means Consolidated Total Net Debt minus the portion of Indebtedness of Holdings, the Lead Borrower or any Restricted Subsidiary included in Consolidated Total Net Debt that is not secured by any Lien on property or assets of Holdings, the Lead Borrower or any Restricted Subsidiary (it being understood and agreed, for the avoidance of doubt, that any obligations in respect of the Excluded Sale-Leasebacks shall be deemed not to be Consolidated Secured Net Debt).
“Consolidated Secured Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Secured Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA of Holdings, the Lead Borrower and its Restricted Subsidiaries for such Test Period.
“Consolidated Total Debt” means, as of any date of determination, the aggregate principal amount of Indebtedness of Holdings, the Lead Borrower and its Restricted Subsidiaries outstanding on such date, in an amount that would be reflected on a balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but excluding the effects of any discounting of Indebtedness resulting from the application of purchase accounting in connection with any Permitted Acquisition), consisting of Indebtedness for borrowed money, Attributable Indebtedness, and debt obligations evidenced by promissory notes or similar instruments; provided that Consolidated Total Debt shall not include Indebtedness (i) in respect of letters of credit, except to the extent of unreimbursed amounts thereunder; provided further that any unreimbursed amount under commercial letters of credit shall not be counted as Consolidated Total Debt until three Business Days after such amount is drawn and (ii) of Unrestricted Subsidiaries; it being understood, for the avoidance of doubt, that obligations under (i) Swap Contracts and (ii) the Subordinated Contribution Note do not constitute Consolidated Total Debt.
“Consolidated Total Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Debt as of the last day of such Test Period to (b) Consolidated EBITDA of Holdings, the Lead Borrower and its Restricted Subsidiaries for such Test Period.
“Consolidated Total Net Debt” means, as of any date of determination, Consolidated Total Debt, minus the aggregate amount of cash and Cash Equivalents (other than Restricted Cash) on the balance sheet of Holdings, the Lead Borrower and its Restricted Subsidiaries as of such date.
“Consolidated Total Net Leverage Ratio” means, with respect to any Test Period, the ratio of (a) Consolidated Total Net Debt as of the last day of such Test Period to (b) Consolidated EBITDA of Holdings, the Lead Borrower and its Restricted Subsidiaries for such Test Period.
“Contingent Obligations” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct or indirect security therefor,
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(b) to advance or supply funds
(i) for the purchase or payment of any such primary obligation, or
(ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or
(c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” has the meaning specified in the definition of “Affiliate”.
“Conversion” has the meaning given such term in Section 2.07(c).
“Converted Restricted Subsidiary” has the meaning specified in the definition of “Consolidated EBITDA”.
“Converted Unrestricted Subsidiary” has the meaning specified in the definition of “Consolidated EBITDA”.
“Core-Mark” means Core-Mark Holding Company, Inc.
“Core-Mark Acquired Companies” means (a) each of the following, to the extent acquired in the Core-Mark Acquisition: Core-Mark, Core-Mark International, Inc., Core-Mark Midcontinent, Inc., Core-Mark Interrelated Companies, Inc., Core-Mark Distributors, Inc., and Sources LLC; (b) each other direct or indirect Subsidiary of Core-Mark not listed above; (c) each direct or indirect Subsidiary of Performance Food Group Company formed for purposes of effecting all or any part of the Core-Mark Acquisition; and (d) any Person which constitutes the successor of any merger with any of the foregoing Persons or any assignee of any of the foregoing Persons.
“Core-Mark Acquisition” means the acquisition by the Lead Borrower (directly or through one or more wholly owned Subsidiaries) of 100% of the Equity Interests issued by the Core-Mark Acquired Companies pursuant to the terms of the Core-Mark Acquisition Agreement.
“Core-Mark Acquisition Agreement” means that certain Agreement and Plan of Merger dated as of May 17, 2021, by and among Performance Food Group Company, Longhorn Merger Sub I, Inc., Longhorn Merger Sub II, LLC, and Core-Mark (as the same may be amended, restated, supplemented, or otherwise modified from time to time).
“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.
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“Cost” means the cost of the Loan Parties’ Inventory as determined in accordance with the Lead Borrower’s Accounting Policy in effect on the Fifth Restatement Effective Date and furnished to the Administrative Agent as reported on the Loan Parties’ perpetual inventory report, as such policy may be modified with the consent of the Administrative Agent, whose consent will not be unreasonably withheld.
“Credit Extensions” means, as of any date of determination, the sum of (a) the Revolving Credit Extensions and (b) the principal balance of all Additional Loans.
“Credit Party” means (a) the Lenders, (b) the Agents and their respective Affiliates and branches, (c) each Issuing Bank, (d) the Swingline Lender and (e) the successors and permitted assigns of each of the foregoing.
“Customs Broker Agreement” means an agreement in substantially the form attached hereto as Exhibit I among a Loan Party, a customs broker or other carrier, and the Collateral Agent, in which the customs broker or other carrier acknowledges that it has control over and holds the documents evidencing ownership of the subject Inventory or other property for the benefit of the Collateral Agent, and agrees, upon notice from the Collateral Agent (which notice shall be delivered only upon the occurrence and during the continuance of an Event of Default), to hold and dispose of the subject Inventory and other property solely as directed by the Collateral Agent.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“DDAs” means any checking or other demand deposit account maintained by the Loan Parties. All funds in such DDAs shall be conclusively presumed to be Collateral and proceeds of Collateral and the Agents or the Lenders shall have no duty to inquire as to the source of the amounts on deposit in the DDAs.
“Debt Service Charges” means, for any period, the sum of (a) Consolidated Interest Expense paid in cash for such period, plus (b) scheduled principal payments of Indebtedness for borrowed money, including the full amount of any non-recourse Indebtedness (excluding the Obligations, but including, without limitation, Capitalized Lease Obligations) for such period, plus (c) scheduled mandatory payments on account of Disqualified Equity Interests (whether in the nature of dividends, redemption, repurchase or otherwise) required to be made during such period, in each case determined in accordance with GAAP.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-Up and Restructuring Act (Canada) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions
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from time to time in effect and affecting the rights of creditors generally including any corporate law of any jurisdiction which may be used by a debtor to obtain a stay or a compromise of the claims of its creditors against it and including any rules and regulations pursuant thereto (but, in each case, shall exclude any part of such laws, rules or regulations which relate solely to any solvent reorganization or solvent restructuring process).
“Deed of Hypothec” means a deed of hypothec creating a hypothec in favor of the Administrative Agent, as hypothecary representative for the benefit of the Secured Parties, pursuant to the laws of the Province of Quebec on the assets of any Loan Party existing under the laws of the Province of Quebec, having its domicile (within the meaning of the Civil Code of Quebec) in the Province of Quebec or having a place of business or tangible property situated in the Province of Quebec.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate applicable to Base Rate Loans plus (c) 2.0% per annum; provided that with respect to a LIBORSOFR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum, in each case, to the fullest extent permitted by applicable Laws.
“Defaulting Lender” means, subject to Section 2.24(b), any Revolving Lender that (a) has failed to (i) fund all or any portion of its Revolving Loans within two Business Days of the date such Revolving Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Lead Borrower in writing that such failure is the result of such ▇▇▇▇▇▇’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, the Swingline 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 or Swingline Loans) within two Business Days of the date when due, (b) has notified the Lead Borrower, the Administrative Agent or any Issuing Bank or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such ▇▇▇▇▇▇’s obligation to fund a Revolving Loan hereunder and states that such position is based on such ▇▇▇▇▇▇’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Lead Borrower, to confirm in writing to the Administrative Agent and the Lead Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Lead Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) 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, provincial or federal regulatory authority acting in such
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a capacity, or (iii) has 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 the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (e) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.24(b)) upon delivery of written notice of such determination to the Lead Borrower, each Issuing Bank, the Swingline Lender and each Lender.
“Designated Account” has the meaning specified in Section 2.19(c).
“Designated Account Debtor” means each Account Debtor designated by the Lead Borrower from time to time in writing to the Administrative Agent (with it being acknowledged and agreed that any Account Debtor and its Affiliates shall constitute only one Account Debtor for purposes of this definition); provided, however, that, at no time, may there be more than eight Designated Account Debtors.
“Designated Amount” means any and all of the following: (a) Net Cash Proceeds of capital contributions received or Permitted Equity Issuances (and specifically excluding the proceeds of any Specified Equity Contribution or any issuance of Disqualified Equity Interests); (b) Net Cash Proceeds of any Casualty Event and/or Disposition, other than the portion thereof attributable to Collateral subject to the Borrowing Base; (c) net cash proceeds of any incurrence of Indebtedness by a Loan Party (but excluding the proceeds of any such Indebtedness to the extent it constitutes a Permitted Refinancing or is otherwise applied to any repayment of Indebtedness); (d) the proceeds of any distribution or dividend made to a Loan Party by any Subsidiary which is not a Loan Party; (e) the proceeds of any Investment in the form of a loan made by a Non-Loan Party to a Loan Party in accordance with Section 7.02(d)(iii); (f) the net cash proceeds of any judgment in favor of a Loan Party or the net cash proceeds of any claim of indemnification in favor of a Loan Party (with “net cash proceeds,” for purposes of this clause (f) including, among other things, all legal fees and costs incurred by a Loan Party in obtaining such judgment or payment thereof, to the extent not reimbursed by insurance or the Person making payment of such judgment); and (g) any other amount received by a Loan Party from an extraordinary, non-recurring, unusual, or other event customarily considered to be a one-time event, but only to the extent the Administrative Agent consents, in writing and in its reasonable discretion, to such amount constituting a “Designated Amount.”
“Designated Funds” means funds which (a) constitute Designated Amounts which are actually received by a Loan Party after the Fifth Restatement Effective Date; (b) are the subject of a written notice from the Lead Borrower to the Administrative Agent which (i) is delivered to the Administrative Agent within 60 days after such funds are received by a Loan Party; (ii) sets forth
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the amount of such funds and states that such funds are Designated Funds; and (iii) identifies the related Designated Amount; (c) are on deposit in a Blocked Account (unless applied to the Obligations as contemplated in the definition of “Designated Reserve”); and (d) have not, before their designation as Designated Funds as contemplated in this definition, been applied to the payment of any amount or payment by any Loan Party (other than to the Obligations as contemplated in the definition of “Designated Reserve”); provided, however, that such funds shall automatically cease to be Designated Funds upon the earliest to occur of (A) the date which is 180 days after such funds were received by a Loan Party; (B) the date on which the Lead Borrower states, in a written notice delivered to the Administrative Agent, that such funds are no longer to be considered Designated Funds; and (C) the date on which such funds are applied to a Restricted Debt Payment under Section 7.12(a)(vi)(D).
“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by Holdings, a Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 7.05(j) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash within 180 days following the consummation of the applicable Disposition).
“Designated Reserve” means a reserve established from time to time by the Administrative Agent in respect of Designated Funds; provided, however, that (a) the Administrative Agent shall not establish a Designated Reserve except to the extent Designated Funds have been applied to the Obligations (whether because the Lead Borrower elected to apply such funds to the Obligations, because such funds have been applied to the Obligations pursuant to Section 2.19, or otherwise); (b) such reserve shall be eliminated to the extent such funds lose their status as Designated Funds (as contemplated in the proviso of the definition of “Designated Funds”); and (c) as contemplated in the definition of “Reserves,” such reserve shall not be included for purposes of calculating average daily Excess Availability for purposes of determining the Applicable Rate or calculating Unused Fees.
“Disbursement Accounts” has the meaning provided in Section 2.19(e).
“Disposed EBITDA” means, with respect to any Sold Entity or Business or any Converted Unrestricted Subsidiary for any Test Period, the amount for such period of Consolidated EBITDA of such Sold Entity or Business or such Converted Unrestricted Subsidiary, all as determined on a consolidated basis for such Sold Entity or Business or such Converted Unrestricted Subsidiary.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction and any sale of Equity Interests) of any property by any Person, including any sale, assignment, transfer, abandonment or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that “Disposition” and “Dispose” shall not be deemed to include any issuance by Holdings of any of its Equity Interests to another Person. Derivations of the word “Dispose” (such as “Disposed”) are used with like meaning in this Agreement.
“Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is
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exchangeable), or upon the happening of any event or condition (a) matures or is 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 and all outstanding Letters of Credit), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes 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 91 days after the Maturity Date.
“Disqualified Lender” has the meaning provided in Section 10.07(b).
“Dollar” and “$” mean lawful money of the United States.
“Dollar Equivalent” means, at any time of determination, (a) with respect to any amount denominated in Dollars, the amount thereof and (b) with respect to any amount denominated in any currency other than Dollars, the equivalent amount thereof in Dollars as determined by reference to the Exchange Rate and Section 1.08.
“Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the United States, any state thereof or the District of Columbia.
“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 Administrative Agent to (or the request by Lead Borrower to Administrative 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 Administrative Agent and Lead Borrower to trigger a fallback from USD LIBOR and the provision by Administrative Agent of written notice of such election to the Lenders.
“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
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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, as of any date of determination, each Account owing to a Borrower Party that arises in the ordinary course of business of any Borrower Party (consistent with past practices and undertaken in good faith) from the sale of goods (or rendition of services) and is payable in Dollars or Canadian Dollars. Without limiting the foregoing, no Account shall be an Eligible Account if:
(a) it is unpaid within 60 days following its due date or 90 days following the original invoice date;
(b) 50% or more of the Accounts owing by the Account Debtor are not Eligible Accounts under the foregoing clause (a);
(c) when aggregated with other Accounts owing by the Account Debtor, it exceeds 20% of the aggregate Eligible Accounts (or such higher percentage as the Administrative Agent may establish for the Account Debtor from time to time (but only to the extent of such excess));
(d) it does not conform in all material respects, with the representations, warranties or covenants contained in this Agreement or any other Loan Document;
(e) it is owing by a creditor or supplier, or is otherwise subject to a potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, credit or allowance (but ineligibility, including in the case of a creditor or supplier, shall be limited to the amount of such offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, credit or allowance);
(f) an Insolvency Proceeding has been commenced by or against the Account Debtor, or the Account Debtor is not Solvent or has gone out of business, or as to which any Borrower Party has received notice of an imminent Insolvency Proceeding or a material impairment of the financial condition of such Account Debtor;
(g) the Account Debtor is not organized (or have its principal offices or assets) in (i) the United States, (ii) Canada, (iii) the U.S. Virgin Islands, (iv) the Commonwealth of Puerto Rico or (v) with respect to the Accounts of any Caribbean Party, the jurisdiction of such Caribbean Party, unless, in any case of the foregoing clauses (i) through (v), (A) the Account is supported by an irrevocable letter of credit reasonably satisfactory to Administrative Agent (as to form, substance, and issuer or domestic confirming bank) over which Administrative Agent has “control” of the related letter-of-credit rights (as
41
contemplated in Article 9 of the Uniform Commercial Code) and, if requested by the Administrative Agent, is directly drawable by Administrative Agent, or (B) the Account is covered by credit insurance in form, substance, and amount, and by an insurer, reasonably satisfactory to Administrative Agent;
(h) it is owing by a Governmental Authority, unless the Account Debtor is (i) a United States military base, (ii) otherwise the United States or any department, agency or instrumentality thereof and, solely with respect to this clause (ii), the Account has been assigned to the Administrative Agent in compliance with the Assignment of Claims Act (unless the Administrative Agent, in its sole discretion, has agreed to the contrary in writing), (iii) any state government in the United States unless any steps necessary (if any) with respect to the perfection, enforcement, or realization of the Lien of the Administrative Agent in such Account have been complied with to the Administrative Agent’s satisfaction, or (iv) Canada, or any province thereof, or any department, agency, or instrumentality of Canada or any province thereof, unless (A) all requirements of the Financial Administration Act (Canada) or its provincial equivalent with respect to the assignment of such Account to the Administrative Agent have been complied with to Administrative Agent’s satisfaction, and (B) any other steps necessary (if any) with respect to the perfection, enforcement, or realization of the Lien of the Administrative Agent in such Account have been complied with to the Administrative Agent’s satisfaction;
(i) it is not subject to a duly perfected, first priority Lien in favor of the Collateral Agent (subject to Permitted Liens having priority by operation of applicable Law), or is subject to any other Lien (other than Permitted Liens);
(j) the goods giving rise to it have not been delivered to and accepted by the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale;
(k) it is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment;
(l) its payment has been extended, compromised, settled or otherwise modified or discounted, except discounts or modifications granted by a Borrower Party in the ordinary course of business and that are reflected in the calculation of the Borrowing Base, or it arises from a sale on a cash on delivery basis;
(m) it arises from a sale to an Affiliate, or from a sale on a bill and hold, guaranteed sale, sale or return, sale on approval, consignment, or other repurchase or return basis;
(n) it represents a progress billing or retainage;
(o) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof;
(p) it arises from an unbilled sale;
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(q) Acquired Accounts, except to the extent included in the calculation of the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base, as applicable, as provided in the definitions thereof; or
(r) the Account Debtor owing such Account is a Designated Account Debtor.
Any Accounts that are not Eligible Accounts shall nevertheless be part of the Collateral to the extent provided in the Collateral Documents.
“Eligible Assignee” means any Assignee permitted by and consented to in accordance with Section 10.07(b).
“Eligible In-Transit Inventory” means, as of any date of determination without duplication of other Eligible Inventory, Inventory (a) which has been shipped from any location for receipt by a Borrower Party within 60 days of the date of determination but which in either case has not yet been received by a Borrower Party, (b) for which the purchase order is in the name of a Borrower Party and title has passed to a Borrower Party, (c) for which the document of title, to the extent applicable, reflects a Borrower Party as consignee (along with delivery to a Borrower Party of the documents of title, to the extent applicable, with respect thereto), (d) as to which the Collateral Agent has control over the documents of title, to the extent applicable, which evidence ownership of the subject Inventory (such as by the delivery of a Customs Broker Agreement if the documents of title are negotiable), and (e) which otherwise is not excluded from the definition of Eligible Inventory. No Acquired Inventory shall constitute Eligible In-Transit Inventory. Eligible In-Transit Inventory shall not include Inventory accounted for as “in transit” by the Lead Borrower by virtue of such Inventory’s being in transit between the Borrower Parties’ locations or in storage trailers at the Borrower Parties’ locations; rather such Inventory shall be treated as “Eligible Inventory,” if it satisfies the conditions therefor.
Any Inventory that is not Eligible In-Transit Inventory shall nevertheless be part of the Collateral to the extent provided in the Collateral Documents.
“Eligible In-Transit Tobacco Inventory” means, as of any date of determination, Eligible In-Transit Inventory consisting of Tobacco Inventory.
“Eligible Inventory” means, as of any date of determination, without duplication, items of Inventory owned by a Borrower Party that are finished goods, merchantable and readily saleable to the public in the ordinary course and that are not excluded as ineligible by virtue of one or more of the criteria set forth below (without duplication of any Reserves established by the Administrative Agent). None of the following shall be deemed to be Eligible Inventory:
(a) Inventory with respect to which a Borrower Party does not have good, valid and marketable title thereto;
(b) Inventory (other than any Eligible In-Transit Inventory) that (i) is not located in (A) the United States of America, (B) the U.S. Virgin Islands, (C) the Commonwealth of Puerto Rico, (D) with respect to any Caribbean Party, the jurisdiction of such Caribbean Party or (E) with respect to any Canadian Subsidiary, Canada or (ii) at a location that is not owned or leased by the Borrower Parties, except to the extent that the Borrower Parties
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have furnished the Collateral Agent with (A) any Uniform Commercial Code or PPSA financing statements or other filings that the Collateral Agent may reasonably determine to be necessary to perfect its security interest in such Inventory at such location and (B) either reserves equal to three months’ rent or such other Reserves reasonably satisfactory to the Administrative Agent have been established with respect thereto, or a Collateral Access Agreement executed by the Person owning any such location on terms reasonably acceptable to the Collateral Agent;
(c) Inventory that represents goods which (i) are damaged, defective, slow moving, obsolete, “seconds,” or otherwise unfit for sale or unmerchantable and goods that have been returned or repossessed, (ii) are to be returned to the vendor and which is no longer reflected in the Borrower Parties’ stock ledger, (iii) are special-order food items salable only to that specific customer, proprietary non-food items, work in process or raw materials, or (iv) are bill and hold goods;
(d) Except as otherwise agreed by the Administrative Agent, Inventory that represents goods that do not conform in all material respects to the representations, warranties and covenants contained in this Agreement or any of the other Loan Documents;
(e) Inventory that is not subject to a perfected first priority security interest in favor of the Collateral Agent (subject only to Permitted Liens having priority by operation of applicable Law), or is subject to any other Lien (other than Permitted Liens), or is leased by or is on consignment to a Borrower Party or is subject to a deposit or down payment, or that is not solely owned by a Borrower Party;
(f) Inventory which consists of samples, labels, bags, packaging or shipping materials, display items, replacement or spare parts or manufacturing supplies and other similar non-merchandise categories;
(g) Inventory as to which casualty insurance in compliance with the provisions of Section 6.07 hereof is not in effect;
(h) (i) Inventory which has been sold but not yet delivered, unless such sale is evidenced by a valid purchase order and does not constitute an Eligible Account, or (ii) Inventory to the extent that any Borrower Party has accepted a deposit therefor and which is no longer reflected in the Borrower Parties’ stock ledger;
(i) Inventory that is not reflected in the details of a current perpetual inventory report;
(j) Inventory that does not meet all standards imposed by any Governmental Authority;
(k) Inventory that is subject to any license or other arrangement that restricts the Borrower Party’s or the Administrative Agent’s right to dispose of such Inventory, unless the Administrative Agent has received an appropriate lien or similar waiver;
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(l) Inventory consisting of food that is proprietary to a customer of a Borrower Party if such Inventory is not the subject of a contract that is in full force and effect at such time between the applicable Borrower Party and such customer; provided, however, that, if the applicable Borrower Party and the applicable customer are continuing to do business under the terms of an expired contract and if not more than 90 days shall have elapsed since the expiration of such contract, then Inventory consisting of food that is proprietary to such customer shall not be excluded from “Eligible Inventory” pursuant to this clause (l) for such 90-day period; provided, further that, no more than $10,000,000 in the aggregate at any time for all customers of the Borrower Party shall be included as “Eligible Inventory” pursuant to the immediately preceding proviso; and
(m) Acquired Inventory, except to the extent included in the calculation of the Tranche A Borrowing Base or the Tranche A-1 Borrowing Base, as applicable, as provided in the definitions thereof.
Any Inventory that is not Eligible Inventory shall nevertheless be part of the Collateral to the extent provided in the Collateral Documents. In determining whether any Tobacco Inventory is Eligible Inventory, such determination shall be made as if such Tobacco Inventory has had affixed to it any requisite Tax Stamps.
“Eligible Net Unaffixed Tax Stamps” shall mean Eligible Inventory consisting of unaffixed Tax Stamps in an amount equal to the sum of the “net eligible unaffixed stamps” in each jurisdiction owned by any Borrower Party, wherein the “net eligible unaffixed stamps” for each such jurisdiction shall be equal to the positive difference, if any, of (a) the aggregate amount of unaffixed Tax Stamps purchased in or from any Governmental Authority in such jurisdiction by any Borrower Party which may be returned to such Governmental Authority for full credit minus (b) the aggregate obligations and liabilities owing to such Governmental Authority in such jurisdiction for purchases of such Tax Stamps (including any checks or instruments of payment issued by or on behalf of any Borrower Party or Guarantor which are held by such Governmental Authorities and not yet submitted for presentment and collection, but excluding all such obligations and/or liabilities owing to such Governmental Authority as determined by Administrative Agent in its commercially reasonable discretion, exercised in good faith). If the sum of (a) minus (b) for any Governmental Authority in any jurisdiction shall result in a negative number, such negative number shall be excluded in computing the Eligible Net Unaffixed Tax Stamps. Tax Stamps that are issued by any Governmental Authority other than the United States or its political subdivisions shall not constitute Eligible Net Unaffixed Tax Stamps. Tax Stamps that are not located in the United States shall not constitute Eligible Net Unaffixed Tax Stamps.
“Eligible Real Property” means each parcel of Real Property set forth on Schedule 1.01E hereto and Additional Real Property that, in each case, satisfies each of the following criteria:
(a) which is (i) owned in fee simple by a Borrower Party (other than a Caribbean Party) or (ii) (A) a leasehold interest pursuant to a lease under which the applicable Borrower Party (other than a Caribbean Party or a Canadian Subsidiary) has the right to acquire a fee simple ownership interest in such leased property (including the land and the buildings and improvements thereon) at any time solely upon the payment of a nominal purchase price in respect of such property, (B) a leasehold interest pursuant to a long-term
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(i.e., 15 years or longer) ground lease under which the applicable Borrower Party (other than a Caribbean Party or a Canadian Subsidiary) leases the land but owns the buildings and improvements on such land, or (C) an ownership interest in Real Property combining all or some of the elements in the foregoing clauses (A) and (B), so long as in each case, the leasehold or other mortgage and/or ground lease assignment and related third-party consents required to obtain such mortgage and/or assignment shall permit such property interests to be acquired by the Collateral Agent at a nominal or no cost and the Collateral Agent shall have the right to exercise all such equivalent remedies that would otherwise be available to the Collateral Agent with respect to a Mortgage on Real Property owned in fee simple by a Borrower Party (including the right to dispose of the related land (in fee simple or by ground lease assignment) and the buildings and improvements thereon as a unit to a third party on market terms), all pursuant to terms, conditions and documentation in form and substance reasonably satisfactory to the Administrative Agent;
(b) which is subject to a first priority, perfected security interest in favor of the Collateral Agent (subject only to Permitted Liens which (i) have priority by operation of law, (ii) are set forth in Sections 7.01(g) and (y), (iii) are set forth in Section 7.01(j) (but only in cases where the applicable Borrower Party is the lessor and the aggregate amount of the premises or such Real Property or Additional Real Property leased by such Borrower Party does not exceed 50% of the area thereof (determined as if all contiguous parcels comprising such Real Property or Additional Real Property where a single parcel)), (iv) are set forth in Section 7.01(p) (but only in cases where the applicable Borrower Party is the lessee and such Real Property or Additional Real Property is described in the foregoing clause (a)(ii) of this definition), or (v) are set forth in Section 7.01(v) (but only in cases where the applicable Borrower Party is the lessee and such Real Property or Additional Real Property is described in the foregoing clause (a)(ii) of this definition)), and is subject to no other Lien (other than Permitted Liens);
(c) which is located in the continental United States;
(d) which is not subject to any environmental conditions contrary to the internal credit policies of the Administrative Agent in its sole discretion;
(e) which otherwise conforms in all material respects to the representations, warranties and covenants contained in this Agreement and the other Loan Documents (including the requirements of Section 10.25);
(f) for which the Administrative Agent shall have received with respect to such Real Property, all in form and substance reasonably satisfactory to the Administrative Agent: (i) an environmental assessment prepared by an environmental consultant satisfactory to the Administrative Agent the results of which shall be reasonably satisfactory to the Administrative Agent; (ii) a fully paid ALTA Lender’s Extended Coverage Loan Title Insurance Policy, issued by a title insurer reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid subsisting Liens on such Real Property, free and clear of all defects and encumbrances, subject to Permitted Liens, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents) as the Administrative Agent or the Collateral Agent may
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reasonably request; (iii) copies of all documents of record concerning such Real Property as shown on the commitment for the ALTA Loan Title Insurance Policy referred to above; (iv) certificates of insurance reflecting all insurance policies required to be maintained with respect to such Real Property by this Agreement, the applicable Mortgage or any other Loan Documents and the Administrative Agent is named loss payee thereon; (v) a new or an existing survey with respect to such Real Property which is sufficient to enable the title insurer to remove the standard survey exception from the title policy referred to in clause (ii) above and to issue any survey‑dependent endorsement to such policy reasonably requested by the Administrative Agent; (vi) a flood hazard certificate and flood insurance policy endorsement concerning such Real Property, if required by the Flood Disaster Protection Act of 1973; (vii) a Real Property Appraisal; (viii) evidence that counterparts of a Mortgage with respect to such Real Property has been duly executed, acknowledged and delivered and is in form suitable for filing or recording in the filing or recording office that the Administrative Agent may deem reasonably necessary or desirable in order to create a valid and subsisting perfected Lien on such Real Property in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and (ix) an opinion of local real estate counsel to the applicable Borrower Party in the state in which such Real Property is located, covering the enforceability and perfection of the applicable Mortgage and any related fixture filings and such other matters as the Administrative Agent may reasonably request;
(g) which has not been the subject of any Term Collateral Release or Term Collateral Subordination, specifically or by type or class, which, as of any relevant time of determination, has not been rescinded, as contemplated in Section 6.18(d); and
(h) as to which the applicable Borrower Party has taken all other actions as shall be necessary or reasonably requested by the Administrative Agent or the Collateral Agent to grant and perfect or record the Collateral Agent’s Lien on such Real Property.
“Eligible Rolling Stock” means, as of any date of determination, Rolling Stock owned by a Borrower Party (other than a Caribbean Party or a Canadian Subsidiary) that are not excluded as ineligible by virtue of one or more of the criteria set forth below (without duplication of any Reserves established by the Administrative Agent). None of the following shall be deemed to be Eligible Rolling Stock:
(a) Rolling Stock with respect to which a Borrower Party does not have good, valid and marketable title thereto;
(b) Rolling Stock that is not represented by a certificate of title and/or is not subject to a certificate of title (or similar) statute under applicable Law, except for Rolling Stock consisting of trucks used for back haul and yard tractors, which, consistent with their use in the ordinary course of business, are not required to be represented by a certificate of title and/or are not subject to a certificate of title (or similar) statute under applicable Law;
(c) Rolling Stock that is not subject to a perfected first priority security interest in favor of the Collateral Agent (subject only to Permitted Liens having priority by
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operation of applicable Law), or is subject to any other Lien (other than Permitted Liens), or is leased by a Borrower Party or is subject to a deposit or down payment, or that is not solely owned by a Borrower Party;
(d) To the extent such Rolling Stock is subject to a certificate of title, Rolling Stock for which the applicable Borrower Party (i) has not delivered a certificate of title with respect thereto to the Collateral Agent (or any agent or trustee acceptable to the Collateral Agent) and (ii) has not caused such certificate of title to be registered with the applicable Governmental Authority showing the Collateral Agent (or any agent or trustee acceptable to the Collateral Agent) as the lienholder thereon, such that such Rolling Stock is subject to a perfected first priority security interest in favor of the Collateral Agent unless, in either case, the applicable Borrower Party has submitted the certificate of title or the requisite application therefor to the applicable Governmental Authority for such registration or for issuance of such certificate of title as so registered;
(e) Rolling Stock that is subject to any license, lease or other arrangement that restricts the Borrower Party’s or the Administrative Agent’s right to dispose of such Rolling Stock, unless the Administrative Agent has received an appropriate lien waiver;
(f) Rolling Stock that is not located within the continental United States;
(g) Rolling Stock that is not properly registered in one of the states of the United States to any Borrower Party (other than a Caribbean Party);
(h) Rolling Stock that does not meet all standards imposed by any Governmental Authority;
(i) Rolling Stock that (i) is not in reasonable repair and working order (ordinary wear and tear excepted) or not being used in the ordinary course of business, (ii) is obsolete, damaged or defective or otherwise unusable or (iii) is more than eight years old (as measured by model year) at the time that it is added to Eligible Rolling Stock;
(j) Rolling Stock that has not been the subject of a Rolling Stock Appraisal;
(k) Rolling Stock as to which casualty insurance in compliance with the provisions of Section 6.07 hereof is not in effect;
(l) Rolling Stock which does not conform in all material respects to the covenants, warranties and representations in this Agreement and the other Loan Documents respecting Eligible Rolling Stock;
(m) Rolling Stock owned by a Person that becomes a Borrower Party following the Fifth Restatement Effective Date or Rolling Stock acquired in a Permitted Acquisition or any other acquisition, unless the Administrative Agent shall have received or conducted (i) Rolling Stock Appraisals of such Rolling Stock and (ii) such other due diligence as the Administrative Agent may reasonably require, all of the results of the foregoing to be reasonably satisfactory to the Administrative Agent. As long as the Administrative Agent has received reasonable prior notice of such Permitted Acquisition and the Borrower
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Parties reasonably cooperate (and cause the Person being acquired to reasonably cooperate) with the Administrative Agent, the Administrative Agent shall use commercially reasonable efforts to complete such due diligence and a related appraisal on or prior to such Person becoming a Borrower Party or the closing date of such Permitted Acquisition; or
(n) which has not been the subject to any Term Collateral Release or Term Collateral Subordination, specifically or by type or class, which, as of any relevant time of determination, has not been not been rescinded, as contemplated in Section 6.18(d).
Any Rolling Stock that is not Eligible Rolling Stock shall nevertheless be part of the Collateral to the extent provided in the Collateral Documents (except to the extent such Rolling Stock has been the subject of a Term Collateral Release, specifically or by type or class, which has not been rescinded, as contemplated in Section 6.18(d)).
“Eligible Tobacco Inventory” means Eligible Inventory consisting of Tobacco Inventory.
“EMU” means the economic and monetary union as contemplated in the Treaty on European Union.
“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Laws” means any and all Laws relating to pollution, the protection of the environment, natural resources or to the release of any Hazardous Materials into the environment, or, to the extent relating to exposure to Hazardous Materials, human health.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any applicable Environmental Law.
“Equipment” means (x) any “equipment” as such term is defined in Article 9 of the Uniform Commercial Code (or the PPSA to the extent applicable) and in any event, shall include, but shall not be limited to, all machinery, equipment, furnishings, appliances, furniture, fixtures, tools, and vehicles (including Rolling Stock) and (y) and any and all additions, substitutions and replacements of any of the foregoing and all accessions thereto, wherever located, whether or not at any time of determination incorporated or installed therein or attached thereto, and all replacements therefore, together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.
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“Equity Interests” means, with respect to any Person, all of the shares, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with any Loan Party and is treated as a single employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as a termination under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan, notification of any Loan Party or ERISA Affiliate concerning the imposition of Withdrawal Liability or notification that a Multiemployer Plan is insolvent or is in endangered or critical status, within the meaning of Section 305 of ERISA; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (g) any Pension Plan is, or is expected to be, in “at-risk” status (within the meaning of Section 303(i)(4)(A) of ERISA or Section 430(i)(4)(A) of the Code); (h) with respect to a Pension Plan, the failure to satisfy the minimum funding standard of Section 412 of the Code and Section 302 of ERISA or (i) the failure to make by its due date a required contribution under Section 430(j) of the Code.
“Erroneous Payment” has the meaning assigned to it in Section 9.17(a).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 9.17(d).
“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 in Section 8.01.
“Excess Availability” means, on any date of determination, (a) the Loan Cap minus (b) the aggregate outstanding amount of Revolving Credit Extensions to, or for the account of, the Borrowers.
“Exchange Act” means the Securities Exchange Act of 1934.
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“Exchange Rate” means for any currency, on any day, the rate determined by the Administrative Agent as the spot rate for the purchase of such currency with another applicable currency through its principal foreign exchange trading office on the date of such determination (it being understood that such determination is typically made at approximately 1:30 p.m., London time, but the determination time may be adjusted from time to time, based on current system configurations); provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if it does not have as of the date of determination a spot buying rate for any such currency.
“Excluded Intellectual Property” means the following trademarks: West Creek, Ridgecrest, Piancone, Roma, Braveheart and Silver Source, which shall at all times constitute Collateral.
“Excluded Property” means, collectively or individually, the properties subject to the (a) Deed of Lease Agreement by and between Lebanon TN Statutory Trust and Performance Food Group, Inc. (as successor to PFG-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Inc.), dated June 27, 2003, as amended; (b) Deed of Lease Agreement by and between Morristown TN Statutory Trust and Performance Food Group, Inc. (as successor to ▇▇▇▇ Brothers Summit, Inc.), dated June 27, 2003, as amended; (c) Lease Agreement by and between Warrior Trail-DFW, LLC and Performance Food Group, Inc. (as successor to ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Company, LLC), dated January 31, 2007, as amended; (d) Deed of Lease Agreement by and between Richmond VA Statutory Trust and Performance Food Group, Inc. (as successor to Performance Food Group Company), dated June 27, 2003, as amended; (e) Deed of Lease Agreement by and between Temple TX Statutory Trust and Performance Food Group, Inc. (as successor to Performance Food Group of Texas, L.P.), dated June 27, 2003, as amended; (f) Deed of Lease Agreement by and between Ranco-RIC, LLC and Performance Food Group, Inc. (as successor to Virginia Foodservice Group, Inc.), dated September 11, 2002, as amended; and (g) Deed of Lease Agreement by and between QFI-Little Rock, AR, LLC and Performance Food Group, Inc. (as successor to Quality Foods, Inc.) dated March 26, 2004, as amended.
“Excluded Sale-Leasebacks” means the Sale-Leasebacks related to the Excluded Property.
“Excluded Subsidiary” means (a) any Subsidiary that is not a wholly owned Subsidiary (other than a Subsidiary that is a Subsidiary Guarantor and is not permitted to become an Unrestricted Subsidiary pursuant to Section 7.15), (b) each Subsidiary listed on Schedule 1.01D hereto, (c) any Subsidiary that is prohibited by applicable Law from guaranteeing the Obligations, (d) any Foreign Subsidiary (other than a Caribbean Party) and any Domestic Subsidiary or Canadian Subsidiary that is a Subsidiary of a Foreign Subsidiary (other than a Caribbean Party), (e) any Restricted Subsidiary acquired pursuant to a Permitted Acquisition financed with secured Indebtedness incurred pursuant to Section 7.03(g) and each Restricted Subsidiary thereof that guarantees such Indebtedness (provided that each such Restricted Subsidiary shall cease to be an Excluded Subsidiary under this clause (e) if such secured Indebtedness is repaid or becomes unsecured or if such Restricted Subsidiary ceases to guarantee such secured Indebtedness, as applicable), (f) any other Subsidiary with respect to which, in the reasonable judgment of the Lead Borrower (confirmed in writing by notice to the Administrative Agent), the cost or other consequences (including any adverse tax consequences) of providing a Guarantee shall be
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material, (g) each Unrestricted Subsidiary, (h) any “not-for-profit” Subsidiary, (i) any Captive Insurance Subsidiary, and (j) any Special Purpose Receivables Subsidiary and any other special purpose entity.
“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 10.03), 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.
“Existing Commitment” has the meaning specified in Section 2.23(a).
“Existing Credit Agreement” has the meaning set forth in the recitals to this Agreement.
“Existing Letters of Credit” means each of the letters of credit issued under the Existing Credit Agreement and identified on Schedule 1.01F.
“Existing Loans” has the meaning specified in Section 2.23(a).
“Existing Tranche” has the meaning specified in Section 2.23(a).
“Extended Commitments” has the meaning specified in Section 2.23(a).
“Extended Loans” has the meaning specified in Section 2.23(a).
“Extended Maturity Date” has the meaning specified in Section 2.23(a).
“Extended Tranche” has the meaning specified in Section 2.23(a).
“Extending Lender” has the meaning specified in Section 2.23(b).
“Extension Amendment” has the meaning specified in Section 2.23(c).
“Extension Date” has the meaning specified in Section 2.23(d).
“Extension Notice” has the meaning specified in Section 2.23(a).
“FATCA” means Sections 1471 through 1474 of the Code, 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 any current or future regulations or official interpretations thereof.
“FCA” has the meaning specified therefor in Section 1.12 of this Agreement.
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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).
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States.
“Fee Letter” means the letter, dated as of June 29, 2021, by and among the Lead Borrower and ▇▇▇▇▇ Fargo, setting forth certain fees payable by the Borrowers in connection with the credit facilities described herein, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
“Fifth Restatement Effective Date” means the first date all the conditions precedent in Section 4.01 are satisfied (or waived in accordance with Section 4.01) and Section 4.02 are satisfied or waived in accordance with Section 10.01, and the initial Credit Extensions are made hereunder.
“First Amendment Effective Date” means April 17, 2023.
“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.
“Flood Property” means a property located in a Flood Zone.
“Flood Zone” means any area having special flood hazards as described in the National Flood Insurance Act of 1968, as amended from time to time, and any successor statute, or in the ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Flood Insurance Reform Act of 2012, as amended from time to time, and any successor statute, or any area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area.
“Floor” means the benchmarka 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 respectof interest equal to USD LIBOR0.00%.
“Food Security Act” means the Food Security Act of 1985, as amended, and any successor statute thereto, including all rules and regulations thereunder all as the same may be in effect from time to time and similar Laws of other applicable jurisdictions in effect from time to time.
“Foreign Lender” has the meaning specified in Section 10.15(a)(i).
“Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by, or entered into with, any Loan Party or any Subsidiary
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with respect to employees employed outside the United States and shall include a Canadian Pension Plan.
“Foreign Subsidiary” means any direct or indirect Subsidiary of Holdings which is neither a Domestic Subsidiary nor a Canadian Subsidiary.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Tranche A Commitment Percentage of the outstanding Letter of Credit Outstandings with respect to Letters of Credit issued by such Issuing Bank other than Letter of Credit Outstandings as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Tranche A Commitment Percentage of outstanding Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
“Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course.
“Funding Date” means the date on which a Borrowing occurs.
“Funding Losses” has the meaning specified therefor in Section 2.25(b)(ii) of this Agreement.
“GAAP” means generally accepted accounting principles in the United States of America, as in effect from time to time; provided, however, that if the Lead Borrower notifies the Administrative Agent that the Lead Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Fifth Restatement Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Lead 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 change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith; provided further that GAAP as it relates to lease accounting or in the application thereof shall be subject, in all respects, to Section 1.03(c) hereof.
“General Intangibles” has the meaning assigned to such term in the U.S. Security Agreement and shall include “Intangibles” as defined in the PPSA where the term “General Intangibles” is used in the Loan Documents.
“Governmental Authority” means any nation or government, any state, provincial or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
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“Granting Lender” has the meaning specified in Section 10.07(h).
“Guarantee” means, as to any Person, without duplication, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Fifth Restatement Effective Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” has the meaning specified in the definition of “Collateral and Guarantee Requirement”.
“Guaranty” means (a) the Fifth Amended and Restated Guaranty made by Holdings and the Subsidiary Guarantors on the Fifth Restatement Effective Date in favor of the Administrative Agent on behalf of the Secured Parties and (b) each other guaranty and guaranty supplement delivered pursuant to Section 6.11.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any applicable Environmental Law.
“Hedge Bank” means any Person that is a Lender, or an Affiliate of a Lender at the time it enters into a Secured Hedge Agreement, or is a party to such an agreement as of the Fifth Restatement Effective Date, in its capacity as a party thereto.
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“Holdings” has the meaning set forth in the preamble to this Agreement.
“IBA” has the meaning specified therefor in Section 1.12 of this Agreement.
“Incremental Availability” means the additional amount available to be borrowed by the Borrowers based upon the difference between the Tranche A-1 Borrowing Base and the Tranche A Borrowing Base, as reflected on the most recent Borrowing Base Certificate delivered by the Lead Borrower to the Administrative Agent pursuant to Section 6.01(e) hereof.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) the maximum amount (after giving effect to any prior drawings or reductions which may have been reimbursed) of all letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or services (other than (i) trade accounts payable in the ordinary course of business and (ii) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP and if not paid after becoming due and payable);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements and mortgage, industrial revenue bond, industrial development bond and similar financings), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness;
(g) all obligations of such Person in respect of Disqualified Equity Interests; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall in the case of Holdings and its Subsidiaries, exclude all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business consistent with past practice. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair market value of the property encumbered thereby as determined by such Person in good faith.
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“Indemnified Liabilities” has the meaning specified in Section 10.05.
“Indemnitees” has the meaning specified in Section 10.05.
“Information” has the meaning specified in Section 10.08.
“Insolvency Proceeding” means any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (a) the entry of an order for relief under Debtor Relief Laws, or the initiation by any Person of any proceeding or filing under any other insolvency, debtor relief or debt adjustment law; (b) the appointment of a receiver, interim receiver, receiver-manager, trustee, liquidator, administrator, monitor, conservator or other custodian for such Person or any part of its property; or (c) an assignment or trust mortgage for the benefit of creditors.
“Instruments” has the meaning assigned to such term in the Security Agreement.
“Intellectual Property” has the meaning assigned to such term in the Security Agreement.
“Intellectual Property Security Agreement” means each Grant of Security Interest in United States Trademarks, Grant of Security Interest in United States or Canadian Patents, as applicable, and Grant of Security Interest in United States or Canadian Copyrights, in each case in the forms of Exhibit C, D, and E to the applicable Security Agreement, executed and delivered from time to time under or in connection with this Agreement or the applicable Security Agreement, and as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided that if any Interest Period for an LIBORa SOFR Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the first day of each January, April, July and October and the Maturity Date (provided, that if an Event of Default has occurred and is continuing, such amounts shall be due and payable, in arrears on the first day of each month).
“Interest Period” means, with respect to each LIBORany SOFR Loan, a period commencing on the date of the making of such LIBORSOFR Loan (or the continuation of a LIBORSOFR Loan or the conversion of a Base Rate Loan to a LIBORSOFR Loan) and ending one1, three,3 or six6 months thereafter or, if agreed to by all Lenders, nine or 12 months thereafter; provided, that (a) interest shall accrue at the applicable rate based upon the LIBORAdjusted Term SOFR 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 one1, three3, six, nine6, or 12 months after the date on which the Interest Period began, as applicable, and (d) Borrowers may not elect an Interest Period which
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will end after the Maturity Date and (e) no tenor that has been removed from this definition pursuant to Section 2.25(d)(iii)(D) shall be available for specification in any SOFR Notice or conversion or continuation notice.
“Intermediate Holding Company” means any Subsidiary of Holdings (of which Holdings, directly or indirectly, owns 100% of the issued and outstanding Equity Interests) that, directly or indirectly, owns 100% of the issued and outstanding Equity Interests of the Lead Borrower.
“Inventory” means any “inventory” as such term is defined in Article 9 of the Uniform Commercial Code (or PPSA to the extent applicable).
“Inventory Advance Rate” means (a) for Tranche A Loans, 90% and (b) for Tranche A-1 Loans, 95%.
“Inventory Reserves” means such reserves as may be established from time to time by the Administrative Agent, in its reasonable commercial discretion exercised in good faith and not inconsistent with past practice, with respect to changes in the determination of the salability, of the Eligible Inventory (or Eligible In-Transit Inventory, as the case may be) or which reflect such other factors as negatively affect the market value of the Eligible Inventory, but without duplication of any Tax Stamp Reserves.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person (excluding, in the case of the Lead Borrower and its Subsidiaries, intercompany loans, advances, or Indebtedness having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business consistent with past practice) or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other nationally recognized statistical rating agency selected by the Borrower.
“IP Rights” means the right to use all trademarks, service marks, trade names, domain names and other source indicators and all goodwill associated with the foregoing, copyrights, patents, patent rights, designs, technology, software, know-how database rights, design rights, trade secrets and other intellectual property rights including any applications or registrations relating thereto and the right to register and obtain renewals of any of the foregoing and the right to sue for past, present and future infringement, misappropriation or other violation thereof, including the right to all damages and proceeds therefrom.
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“IRS” means the United States Internal Revenue Service.
“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 the Issuing Bank 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 the Lead Borrower in favor of Issuing Bank and relating to such Letter of Credit.
“Issuing Bank” means ▇▇▇▇▇ Fargo, or any Additional Issuing Bank designated as an Issuing Bank pursuant to Section 2.06(t), in each case in its capacity as issuer of any Letter of Credit. The Issuing Bank may, in its reasonable discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“Judgment Currency” has the meaning specified in Section 10.19.
“Junior Financing” means any Indebtedness that is or is required to be subordinated to the Obligations pursuant to the terms of the Loan Documents.
“Junior Financing Documentation” means any documentation governing any Junior Financing.
“Laws” means, collectively, all international, foreign, federal, state, provincial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“LCA Election” has the meaning given such term in Section 1.11 of this Agreement.
“LCA Test Date” has the meaning given such term in Section 1.11 of this Agreement.
“Lead Borrower” has the meaning set forth in the preamble to this Agreement.
“Lease” means any agreement pursuant to which a Loan Party is entitled to the use or occupancy of any space in a structure, land, improvements or premises for any period of time.
“Lender” has the meaning specified in the preamble to this Agreement.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such ▇▇▇▇▇▇’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Lead Borrower and the Administrative Agent.
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“Letter of Credit” means (a) each Existing Letter of Credit and (b) each letter of credit that (i) is issued by the Issuing Bank pursuant to this Agreement for the account of a Borrower, (ii) constitutes a Standby Letter of Credit or Commercial Letter of Credit (and for which the Issuing Bank is not otherwise prohibited from issuing such letter of credit due to the internal general policies of the Issuing Bank), and (iii) is in form reasonably satisfactory to the Issuing Bank.
“Letter of Credit Disbursement” means a payment made by the Issuing Bank to the beneficiary of, and pursuant to, a Letter of Credit.
“Letter of Credit Exposure” means, as of any date of determination with respect to any Lender, such ▇▇▇▇▇▇’s participation in the Letter of Credit Outstandings pursuant to Section 2.06(e) on such date.
“Letter of Credit Fees” means the fees payable in respect of Letters of Credit pursuant to Section 2.11(c).
“Letter of Credit Indemnified Costs” has the meaning specified therefor in Section 2.06(f) of this Agreement.
“Letter of Credit Outstandings” means, at any time, the sum of (a) the Stated Amount of all Letters of Credit outstanding at such time, plus, without duplication, (b) all amounts theretofore drawn or paid under Letters of Credit for which the Issuing Bank has not then been reimbursed.
“Letter of Credit Related Person” has the meaning specified therefor in Section 2.06(f) of this Agreement.
“Letter of Credit Sublimit” means, at any time, $350,000,000, as such amount may be increased or reduced in accordance with the provisions of this Agreement. The Letter of Credit Sublimit is part of, and not in addition to, the Tranche A Commitment.
“Liabilities” means any and all debts, liabilities and obligations of any nature or kind.
“LIBOR” means the rate per annum as published by ICE Benchmark Administration Limited (or any successor page or other commercially available source as Administrative 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, for a term, and in an amount, comparable to the Interest Period and the amount of the LIBOR Loan requested (whether as an initial LIBOR Loan or as a continuation of a LIBOR Loan or as a conversion of a Base Rate Loan to a LIBOR Loan) by Borrowers in accordance with this Agreement (and, if any such published rate is below zero, then LIBOR shall be deemed to be zero). Each determination of LIBOR shall be made by Administrative Agent and shall be conclusive in the absence of manifest error.
“LIBOR Loan” means each portion of a Loan that bears interest at a rate determined by reference to LIBOR.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, hypothec or preference, priority or other security
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interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to Real Property, and any Capitalized Lease having substantially the same economic effect as any of the foregoing).
“Limited Condition Acquisition” means any Permitted Acquisition the consummation of which is, pursuant to the terms of the definitive acquisition documentation related thereto, subject to “funds certain” conditions or otherwise not conditioned on the availability of, or on obtaining, third party financing.
“Liquidation” means the exercise by the Administrative Agent of those rights and remedies accorded to the Administrative Agent under the Loan Documents and applicable Law as a creditor of the Loan Parties, including (after the occurrence and during the continuation of an Event of Default) the conduct by any or all of the Loan Parties, acting with the consent of the Administrative Agent, of any public, private or “Going-Out-Of-Business Sale” or other Disposition of Collateral for the purpose of liquidating the Collateral. Derivations of the word “Liquidation” (such as “Liquidate”) are used with like meaning in this Agreement.
“Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of a Revolving Loan, a Swingline Loan, and, as may be set forth in any Additional Credit Amendment, any Additional Loans or, as may be set forth in any Extension Amendment, any Extended Loans.
“Loan Account” has the meaning specified in Section 2.20(a).
“Loan Cap” means, at any time of determination, the lesser of (a) the Borrowing Base and (b) the Revolving Credit Amount.
“Loan Disbursement Account” means the Deposit Account of the Lead Borrower identified on Schedule 2.19 to this Agreement (or such other Deposit Account of the Lead Borrower located at the Administrative Agent that has been designated as such, in writing, by the Borrowers to the Administrative Agent).
“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral Documents, and (e) each Acceptable Intercreditor Agreement.
“Loan Parties” means, collectively, (a) the Borrowers, (b) Holdings and (c) each other Guarantor that satisfies the Collateral and Guarantee Requirement.
“Management Stockholders” means the members of management of Holdings or any direct or indirect parent thereof or any of its Subsidiaries as of the Fifth Restatement Effective Date, including the Lead Borrower, who are investors in Holdings or any direct or indirect parent thereof as of the Fifth Restatement Effective Date.
“Margin Stock” as defined in Regulation U of the Federal Reserve Board as in effect from time to time.
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“Market Capitalization” means, with respect to any Restricted Payment made pursuant to Section 7.06(h), an amount equal to (a) the total number of issued and outstanding shares of common Equity Interests of Performance Food Group Company on the date of the declaration of the relevant Restricted Payment, multiplied by (b) the arithmetic mean of the closing prices per share of such common Equity Interests for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment.
“Master Agreement” has the meaning specified in the definition of “Swap Contract”.
“Material Adverse Effect” means (a) a material adverse effect on the business, operations, assets, liabilities (actual or contingent) or financial condition of Holdings and its Subsidiaries, taken as a whole, (b) a material adverse effect on the ability of the Loan Parties and the Guarantors (taken as a whole) to perform their respective payment obligations under any Loan Document to which any of the Loan Parties or Guarantors is a party or (c) a material adverse effect on the rights and remedies of the Lenders or the Agents under any Loan Document.
“Material Canadian Subsidiary” means any Canadian Subsidiary which is a Material Domestic / Canadian Subsidiary.
“Material Domestic / Canadian Subsidiary” means, at any date of determination, each of Holdings’ Domestic Subsidiaries and Canadian Subsidiaries (other than the Borrowers) (a) whose total assets at the last day of the Test Period were equal to or greater than 5% of Total Assets at such date or (b) whose Consolidated EBITDA for such Test Period were equal to or greater than 5% of the Consolidated EBITDA of Holdings, the Borrowers and the Restricted Subsidiaries for such period; provided that “Material Domestic / Canadian Subsidiary” shall also include any of Holding’s Subsidiaries selected by the Lead Borrower which is required to ensure that all Material Domestic / Canadian Subsidiaries have in the aggregate (i) total assets at the last day of the Test Period that were equal to or greater than 95% of the total assets of Holdings, the Borrowers and the Restricted Subsidiaries that are Domestic Subsidiaries or Canadian Subsidiaries at such date and (ii) Consolidated EBITDA for such Test Period that were equal to or greater than 95% of the Consolidated EBITDA of Holdings, the Borrowers and the Restricted Subsidiaries that are Domestic Subsidiaries or Canadian Subsidiaries for such period.
“Material Foreign Subsidiary” means, at any date of determination, each of Holdings’ Foreign Subsidiaries (a) whose total assets at the last day of the Test Period were equal to or greater than 5% of Total Assets at such date or (b) whose Consolidated EBITDA for such Test Period were equal to or greater than 5% of the Consolidated EBITDA of Holdings, the Borrowers and the Restricted Subsidiaries for such period; provided that “Material Foreign Subsidiary” shall also include any of Holding’s Subsidiaries selected by the Lead Borrower which is required to ensure that all Material Foreign Subsidiaries have in the aggregate (i) total assets at the last day of the Test Period that were equal to or greater than 95% of the total assets of Holdings, the Borrowers and the Restricted Subsidiaries that are Foreign Subsidiaries at such date and (ii) Consolidated EBITDA for such Test Period that were equal to or greater than 95% of the Consolidated EBITDA of Holdings, the Borrowers and the Restricted Subsidiaries that are Foreign Subsidiaries for such period.
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“Material Subsidiary” means any Material Domestic / Canadian Subsidiary or any Material Foreign Subsidiary.
“Maturity Date” means the fifth anniversary of the Fifth Restatement Effective Date (the “Original Maturity Date”); provided that if such day is not a Business Day, the Maturity Date shall be the Business Day immediately preceding such day; provided further that if, on the 60th day immediately preceding the stated maturity date of any Additional Permitted Debt (but only if such maturity date is on or before the later of the Original Maturity Date and any Extended Maturity Date), the outstanding principal amount of such Additional Permitted Debt equals or exceeds $100,000,000 (excluding any principal thereof which, as of such day, has been repaid, refinanced (including by exchange), defeased or, in the reasonable determination of the Administrative Agent, adequately reserved for or cash collateralized), then the Maturity Date will occur on such 60th day. For purposes of this definition, any Additional Permitted Debt with a maturity date within 90 days of any other Additional Permitted Debt thereof shall be deemed to be the same Indebtedness (which shall be deemed to be the earlier maturing Indebtedness).
“Maximum Rate” has the meaning specified in Section 10.10.
“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc., and any successor thereto.
“Mortgage” means collectively, the deeds of trust, trust deeds, charges, hypothecs and mortgages creating and evidencing a Lien on a Real Property made by the Loan Parties in favor or for the benefit of the Collateral Agent on behalf of the Secured Parties in form and substance reasonably satisfactory to the Collateral Agent, and any other mortgages executed and delivered pursuant to Sections 4.01(a)(iii) or 6.18 or the definition of Eligible Real Property.
“Mortgaged Properties” means each Real Property for which the Loan Parties have provided a Mortgage pursuant to Sections 4.01(a)(iii) or 6.18 or the definition of Eligible Real Property.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or in the past six years, has made or been obligated to make contributions.
“Net Cash Proceeds” means:
(a) with respect to the Disposition of any asset by Holdings, the Lead Borrower or any Restricted Subsidiary or any Casualty Event, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such Disposition or Casualty Event (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received and, with respect to any Casualty Event, any insurance proceeds or condemnation awards in respect of such Casualty Event actually received by or paid to or for the account of Holdings, the Lead Borrower or any Restricted Subsidiary) over (ii) the sum of (A) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness that is secured by the asset subject to such Disposition or Casualty Event and that is required to be repaid (and is timely repaid) in connection with such Disposition or Casualty Event (other than Indebtedness under the Loan Documents), (B) the out-of-pocket
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fees and expenses (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by Holdings, the Lead Borrower or such Restricted Subsidiary in connection with such Disposition or Casualty Event, (C) taxes paid or reasonably estimated to be actually payable in connection therewith, and (D) any reserve for adjustment in respect of (x) the sale price of such asset or assets established in accordance with GAAP and (y) any liabilities associated with such asset or assets and retained by Holdings, the Lead Borrower or any Restricted Subsidiary after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction and it being understood that “Net Cash Proceeds” shall include (i) any cash or Cash Equivalents received upon the Disposition of any non-cash consideration by Holdings, the Lead Borrower or any Restricted Subsidiary in any such Disposition and (ii) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (D) above or if such liabilities have not been satisfied in cash and such reserve is not reversed within 365 days after such Disposition or Casualty Event, the amount of such reserve; provided that (x) no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Cash Proceeds unless such net cash proceeds shall exceed $3,000,000 and (y) no such net cash proceeds shall constitute Net Cash Proceeds under this clause (a) in any fiscal year until the aggregate amount of all such net cash proceeds in such fiscal year shall exceed $10,000,000 (and thereafter only net cash proceeds in excess of such amount shall constitute Net Cash Proceeds under this clause (a)); and
(b) (i) with respect to the incurrence or issuance of any Equity Interest or Indebtedness by Holdings, the Lead Borrower or any Restricted Subsidiary, the excess, if any, of (x) the sum of the cash received in connection with such incurrence or issuance over (y) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses and other customary expenses, incurred by Holdings, the Borrowers or such Restricted Subsidiary in connection with such incurrence or issuance and (ii) with respect to any Permitted Equity Issuance by any direct or indirect parent of Holdings or the Lead Borrower the amount of cash from such Permitted Equity Issuance contributed to the capital of (without duplication) Holdings or the Lead Borrower.
“Net Income” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.
“NOLV Percentage” means (i) with respect to Inventory, the net appraised recovery value of the Loan Parties’ Inventory as set forth in the Loan Parties’ stock ledger (expressed as a percentage of the Cost of such Inventory) as reasonably determined from time to time by reference to the most recent inventory appraisal received by the Administrative Agent and conducted by an independent appraiser reasonably satisfactory to the Administrative Agent and (ii) with respect to Rolling Stock, the net orderly liquidation value of the Loan Parties’ Rolling Stock (expressed as a
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percentage of net book value of such Rolling Stock), as reasonably determined from time to time by reference to the applicable Rolling Stock Appraisal received by the Administrative Agent.
“Non-Cash Charges” has the meaning specified in the definition of the term “Consolidated EBITDA”.
“Noncompliance Notice” shall have the meaning provided in Section 2.05(b).
“Non-Consenting Lender” has the meaning specified in Section 3.07(d).
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-Extending Lender” has the meaning specified in Section 2.23(e).
“Non-Loan Party” means any Restricted Subsidiary of Holdings that is not a Loan Party.
“Non-Territorial Caribbean Party” means a Caribbean Party which is not a Territorial Caribbean Party.
“Not Otherwise Applied” means, with reference to any amount of Net Cash Proceeds of any transaction or event (excluding any Designated Funds, so long as they remain Designated Funds) or of the Available Amount that is proposed to be applied to a particular use or transaction, that such amount has not previously been (and is not simultaneously being) applied to anything other than that particular use or transaction.
“Notes” means, collectively, (a) Revolving Credit Notes and (b) the Swingline Note.
“Obligations” means all (a) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party, any Guarantor and their respective Restricted Subsidiaries arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party, any Guarantor or any of their respective Restricted Subsidiaries of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, and (b) obligations of any Loan Party, any Guarantor and their respective Restricted Subsidiaries arising under any Other Liabilities; provided that, anything to the contrary contained in the foregoing notwithstanding, the Obligations shall exclude any Excluded Swap Obligation. Without limiting the generality of the foregoing, the Obligations of the Loan Parties and the Guarantors under the Loan Documents (and any of their Restricted Subsidiaries to the extent they have obligations under the Loan Documents) include (x) the obligation (including guarantee obligations) to pay principal, interest, Letter of Credit commissions, reimbursement obligations, Erroneous Payment Subrogation Rights, charges, expenses, fees, Attorney Costs, indemnities and other amounts payable by any Loan Party, any Guarantor or any of their respective Restricted Subsidiaries under any Loan Document and (y) the obligation of any Loan Party, any Guarantor or any of their respective Restricted Subsidiaries to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such
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Loan Party, such Guarantor or such Restricted Subsidiary. For the avoidance of doubt obligations and liabilities existing or arising in connection with or from any Additional Commitments or Additional Loans shall constitute Obligations.
“OFAC” means The Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Organization Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating or limited liability company agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Original Closing Date” means May 23, 2008.
“Other Liabilities” means outstanding liabilities with respect to or arising from (a) any Cash Management Services furnished to any of the Loan Parties (including, without limitation, overdraft protections and similar services or arrangements in connection with deposit accounts) and/or (b) any transaction which arises out of any Bank Product entered into with any Loan Party, as each may be amended from time to time.
“Other Taxes” has the meaning specified in Section 3.01(b).
“Overadvance” means a Revolving Loan, advance, or providing of credit support (such as the issuance of a Letter of Credit), to the Borrowers to the extent that, immediately after the making of such loan or advance or the providing of such credit support, Excess Availability is less than zero.
“Overnight Rate” means, for any day, with respect to any amount denominated in Dollars, the Federal Funds Rate.
“PACA” means the Perishable Agricultural Commodities Act, 7 U.S.C. §499 and similar Laws of other applicable jurisdictions in effect from time to time.
“Packers and Stockyards Act” means the Packers and Stockyards Act of 1921, as amended, 7 U.S.C. Section 181 et seq. and similar Laws of other applicable jurisdictions in effect from time to time.
“Participant” has the meaning specified in Section 10.07(e).
“Participating Member State” means each state so described in any EMU Legislation.
“Payment Recipient” has the meaning assigned to it in Section 9.17(a).
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“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time in the past six years.
“Permitted Acquisition” has the meaning specified in Section 7.02(j).
“Permitted Equity Issuance” means any sale or issuance of any Qualified Equity Interests of Holdings or any direct or indirect parent of Holdings, in each case to the extent permitted hereunder, as applicable.
“Permitted Holders” means the Management Stockholders.
“Permitted Lien” has the meaning specified in Section 7.01.
“Permitted Overadvance” means an Overadvance made by the Administrative Agent, in its reasonable discretion, which:
(a) is made to maintain, protect or preserve the Collateral and/or the Secured Parties’ rights under the Loan Documents or which is otherwise for the benefit of the Secured Parties; or
(b) is made to enhance the likelihood of, or maximize the amount of, repayment of any Obligation; or
(c) is made to pay any other amount chargeable to any Borrower hereunder; and
(d) together with all other Permitted Overadvances then outstanding, shall not (i) exceed 5.00% of the Borrowing Base, in the aggregate outstanding at any time or (ii) unless a Liquidation is taking place, remain outstanding for more than 45 consecutive Business Days;
provided, however, that the foregoing shall not (i) modify or abrogate any of the provisions of Section 2.06 regarding any Revolving Lender’s obligations with respect to Letter of Credit Disbursements, or (ii) result in any claim or liability against the Administrative Agent (regardless of the amount of any Overadvance) for “inadvertent Overadvances” (i.e., where an Overadvance results from changed circumstances beyond the control of the Administrative Agent (such as a reduction in the collateral value)), and provided, further that in no event shall the Administrative Agent make an Overadvance, if after giving effect thereto, the principal amount of the Revolving Credit Extensions would exceed the aggregate amount of the Revolving Commitments (as in effect prior to any termination of the Revolving Commitments pursuant to Section 8.01 hereof).
“Permitted Receivables DDA” means a DDA (a) which is established in connection with a Permitted Receivables Financing, is thereafter used by the Lead Borrower or a Restricted
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Subsidiary solely for purposes of, and in connection with, such Permitted Receivables Financing, and is used solely for the purposes of receipt of collections and other proceeds of (i) Accounts (and Related Rights and Property) sold, conveyed, or otherwise transferred, or over which a security interest has been granted, pursuant to such Permitted Receivables Financing and (ii) if applicable, any other Accounts owing by the Designated Account Debtor associated with such Permitted Receivables Financing and (b) into which no proceeds of Accounts of the Lead Borrower or any Restricted Subsidiary are deposited, other than (i) Accounts (and Related Rights and Property) which have been sold, conveyed, or otherwise transferred, or over which a security interest has been granted, pursuant to such Permitted Receivables Financing and (ii) if applicable, such other Accounts (and Related Rights and Property) owing by the Designated Account Debtor associated with such Permitted Receivables Financing. For the avoidance of doubt, a DDA shall constitute a Permitted Receivables DDA only for so long as the related Permitted Receivables Financing remains in effect.
“Permitted Receivables Financing” means any supply chain, factoring, discounting securitization, or similar financing arrangements pursuant to which, in one or a series of related transactions, the Lead Borrower or any of its Restricted Subsidiaries sells, conveys, or otherwise transfers or grants a security interest from time to time to a Receivables Purchaser one or more Accounts owing by a Designated Account Debtor to a Borrower Party (and the Related Rights and Property) (whether or not such Receivables Purchaser, in turn, sells, conveys, or otherwise transfers or grants a security interest in such Account to a subsequent Receivables Purchaser), so long as (a) the consideration therefor is equal to or greater than the fair market value thereof (as determined by the Lead Borrower in the exercise of its commercially reasonable discretion and giving effect to such factors as early receipt of payment); (b) such financing arrangements are non-recourse to any Borrower Party or Restricted Subsidiary, other than Permitted Receivables Undertakings; (c) all payments of cash made pursuant to the terms of such financing arrangements by a Receivables Purchaser to the Lead Borrower or any Restricted Subsidiary are deposited into a Blocked Account; (d) the documents evidencing such financing arrangements (including, if reasonably requested by the Administrative Agent, an intercreditor agreement with the applicable Receivables Purchaser(s)), and any amendments, restatements, supplements, or other modifications thereto, have been approved by the Administrative Agent, acting in its commercially reasonable discretion and in good faith; and (e) within three Business Days before entering into such financing arrangements, the Lead Borrower shall have delivered a pro forma Borrowing Base Certificate to the Administrative Agent, prepared on a pro forma basis by giving effect to the elimination of all Accounts of the applicable Designated Account Debtor from the calculation of the Borrowing Base, and such pro forma Borrowing Base Certificate shall demonstrate that no Overadvance exists.
“Permitted Receivables Undertakings” means, with respect to any Permitted Receivables Financing, (a) the obligations of the originator or seller of any Account (and Related Rights and Property) sold, conveyed, or otherwise transferred, or over which a security interest has been granted, pursuant to such Permitted Receivables Financing to repurchase such Accounts in the case of any breach of representation or warranty made in connection with such sale, conveyance, or transfer; (b) the obligations of the Lead Borrower or any of its Restricted Subsidiaries to cause the seller thereof (or any Special Purpose Receivables Subsidiary) to comply with the terms and conditions of the documents evidencing such Permitted Receivables Financing; (c) Indebtedness of the Lead Borrower or any of its Restricted Subsidiaries arising solely as a result
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of the recharacterization of any of the transactions comprising a Permitted Receivables Financing as a secured financing (so long as such Indebtedness does not exceed the face amount of the Accounts which are the subject of such recharacterization, plus customary interest, fees, indemnities, and reimbursements relating thereto); and (d) such other obligations and undertakings customarily entered into, made, or undertaken in connection with a Permitted Receivables Financing transaction.
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) (i) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(e) and any such modification, refinancing, refunding, renewal or extension in the form of unsecured Indebtedness, such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, and (ii) with respect to any such modification, refinancing, refunding, renewal or extension in the form of unsecured Indebtedness, (A) such modification, refinancing, refunding, renewal or extension has a final maturity date which is equal to or later than the earlier of (1) the final maturity date of the Indebtedness being modified, refinanced, refunded, renewed or extended and (2) the date which is 91 days after the later of the Maturity Date and any Extended Maturity Date existing at the time such Indebtedness is incurred, and (B) such Indebtedness either (1) does not amortize or has a per annum rate of amortization not to exceed 1.00% of the original principal amount thereof (or such other rate or schedule of amortization or mandatory payments acceptable to the Administrative Agent in its reasonable discretion) or (2) has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) other than with respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 7.03(e), at the time thereof, no Event of Default shall exist or would result therefrom, (d) if such Indebtedness being modified, refinanced, refunded, renewed or extended is Indebtedness permitted pursuant to Section 7.03(b)(i), 7.03(g) or 7.03(k) or 7.03(r) or is Junior Financing, (i) to the extent such Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed or extended, (ii) the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and redemption premium) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended; provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts
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of the documentation relating thereto, stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Lead Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal or extension is incurred by the Person who is the obligor of the Indebtedness being modified, refinanced, refunded, renewed or extended; provided further that modified, refinanced, refunded, renewed or extended Indebtedness secured by Liens on the Collateral which are junior to the Liens securing the Obligations and subject to an Acceptable Intercreditor Agreement, to the extent such Liens are permitted by Section 7.01 hereof, shall not be deemed to be materially adverse to the Loan Parties or the Lenders, and (e) if such Indebtedness being modified, refinanced, refunded, renewed or extended is (i) unsecured, then such modified, refinanced, refunded, renewed or extended Indebtedness is unsecured and (ii) secured, then such modified, refinanced, refunded, renewed or extended Indebtedness is either unsecured or secured only by Permitted Liens. Notwithstanding anything contained herein to the contrary, the Excluded Sale-Leasebacks may be amended or replaced to include a right to be exercised by the relevant lessees to purchase the relevant real properties subject to such Excluded Sale-Leasebacks if the indebtedness of the lessors under such Excluded Sale-Leasebacks is indefeasibly repaid in full by the lessee or a guarantor thereof.
“Person” means any natural person, corporation, limited liability company, unlimited liability corporation, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), other than a Foreign Plan, established, maintained or contributed to by any Loan Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
“Platform” has the meaning given such term in Section 10.08.
“Post-Acquisition Period” means, with respect to any Permitted Acquisition, the period beginning on the date such Permitted Acquisition is consummated and ending on the last day of the sixth full consecutive fiscal quarter immediately following the date on which such Permitted Acquisition is consummated.
“PPSA” means the Personal Property Security Act (Ontario), including the regulations thereto; provided, that, if perfection or the effect of perfection or non-perfection or the priority of any Lien created hereunder or under any other Loan Document on the Collateral is governed by the personal property security legislation or other applicable legislation with respect to personal property security in effect in a jurisdiction in Canada other than the Province of Ontario, “PPSA” means the Personal Property Security Act or such other applicable legislation (including the Civil Code of Quebec) in effect from time to time in such other jurisdiction in Canada for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
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“Preferred Stock” means any Equity Interest with preferential rights (in relation to common equity of the same issuer) of payment of dividends or upon liquidation, dissolution, or winding up.
“Prepayment Event” means the occurrence of any of the following events:
(a) any sale, transfer or other Disposition (including pursuant to a sale and leaseback transaction) of any Collateral (other than the transfer of any Collateral among locations of the Loan Parties) unless the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent; or
(b) any Casualty Event unless the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent.
“primary obligor” has the meaning specified in the definition of “Guarantee”.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by ▇▇▇▇▇ Fargo as its “prime rate” in effect for U.S. dollars at its principal office in San Francisco, California; each change in the Prime Rate shall be effective from and including the date such change is evidenced by the recording thereof after its announcement in such internal publications as ▇▇▇▇▇ Fargo may designate (and, if any such announced rate is below zero, then the rate shall be deemed to be zero). The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
“Priority Payable Reserves” means Canadian Priority Payable Reserves and other reserves established in the good faith credit discretion of the Administrative Agent for amounts secured by any Liens, ▇▇▇▇▇▇ or inchoate, which rank or are capable of ranking in priority to the Secured Parties’ Liens and/or for amounts which may represent costs relating to the enforcement of the Secured Parties’ Liens including, without limitation, in the good faith credit discretion of the Administrative Agent, any such amounts due and not paid for vacation pay, amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, amounts currently or past due and not paid for realty, municipal or similar taxes (to the extent impacting personal or moveable property) and all amounts currently or past due and not contributed, remitted or paid to any Plan.
“Pro Forma Adjustment” means, for any Test Period that includes all or any part of a fiscal quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the applicable Acquired Entity or Business or Converted Restricted Subsidiary or the Consolidated EBITDA of Holdings, the Borrowers and the Restricted Subsidiaries, the pro forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, set forth in a certificate by a Responsible Officer in form and substance reasonably satisfactory to the Administrative Agent, as the case may be, projected by Holdings or the Lead Borrower in good faith as a result of (a) actions taken during such Post-Acquisition Period for the purposes of realizing reasonably identifiable and
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factually supportable synergies and cost savings or (b) any additional costs incurred during such Post-Acquisition Period, in each case in connection with the combination of the operations of such Acquired Entity or Business or Converted Restricted Subsidiary with the operations of Holdings, the Borrowers and the Restricted Subsidiaries; provided that, (i) at the election of Holdings or the Lead Borrower, such Pro Forma Adjustment shall not be required to be determined for any Acquired Entity or Business or Converted Restricted Subsidiary to the extent the aggregate consideration paid in connection with such acquisition was less than $10,000,000, and (ii) so long as such actions are taken during such Post-Acquisition Period or such costs are incurred during such Post-Acquisition Period, as applicable, for purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, it may be assumed that such cost savings will be realizable during the entirety of such Test Period, or such additional costs, as applicable, will be incurred during the entirety of such Test Period; provided, further that any such pro forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case may be, for such Test Period; and provided, further that for amounts in excess of the Add-Back Cushion Amount (A) the aggregate amount of Pro Forma Adjustments shall not exceed 15% of Consolidated EBITDA for any Test Period, and (B) the aggregate amount of Pro Forma Adjustments, together with the aggregate amount of add-backs included pursuant to clauses (a)(v) and (a)(vi) of the definition of Consolidated EBITDA, shall not exceed 20% of Consolidated EBITDA for any Test Period (calculated in each case before giving effect to such Pro Forma Adjustments and other add-backs).
“Pro Forma Basis” and “Pro Forma Effect” mean, with respect to compliance with any test hereunder, that (A) to the extent applicable, the Pro Forma Adjustment shall have been made and (B) all Specified Transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such Specified Transaction, (i) in the case of a Disposition of all or substantially all Equity Interests in any Subsidiary of Holdings or any division, product line, or facility used for operations of Holdings or any of its Subsidiaries, shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction”, shall be included, (b) any retirement of Indebtedness, and (c) any Indebtedness incurred or assumed by Holdings, any Borrower or any of the Restricted Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided that, without limiting the application of the Pro Forma Adjustment pursuant to clause (A) above, the foregoing pro forma adjustments may be applied to any such test solely to the extent that such adjustments are consistent with the definition of Consolidated EBITDA and give effect to events (including operating expense reductions) that are (as determined by Holdings in good faith) (i) (x) directly attributable to such transaction, (y) expected to have a continuing impact on Holdings, the Borrowers and the Restricted Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the definition of Pro Forma Adjustment.
“Pro Forma Excess Availability” means, for any date of calculation and with respect to any Specified Payment or Certain Specified Payment, average Alternate Availability calculated
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for the 90-day period ending immediately before the date on which such Specified Payment or Certain Specified Payment is being made (determined on each such relevant day by giving effect to such Specified Payment or Certain Specified Payment and any Loans made, or Letters of Credit issued in connection with or in contemplation of such Specified Payment or Certain Specified Payment, the proceeds of which are to be applied to such Specified Payment or Certain Specified Payment).
“Pro Forma Excess Availability Condition” means that, for any date of calculation and with respect to any Specified Payment, Pro Forma Excess Availability shall equal or exceed the Trigger Amount; provided that such threshold amount shall be increased to the greater of (a) the Trigger Amount and (b) $340,000,000 with respect to any Specified Payment under Section 7.02(j) or (n), 7.03(n), or 7.05(f) in the event that the Lead Borrower shall have elected to include any Restricted Subsidiary that is a Foreign Subsidiary in the calculation of the Consolidated Fixed Charge Coverage Ratio required to be tested in such Sections; provided further, that with respect to any transaction consummated pursuant to Section 7.02(j) (solely to the extent the consideration for such Permitted Acquisition exceeds $40,000,000), 7.02(d)(v) or (n), or 7.03(n) (solely to the extent such transaction exceeds $25,000,000), satisfaction of such condition and any other financial tests in such section, shall be evidenced by a certificate from the Chief Financial Officer or other financial officer of the Lead Borrower demonstrating, in reasonable detail, satisfaction thereof, which certificate shall be delivered to the Administrative Agent prior to making any Specified Payment.
“Pro Forma Excess Availability Condition (Certain Covenants)” means that, for any date of calculation and with respect to any Certain Specified Payment, Pro Forma Excess Availability shall equal or exceed $250,000,000; provided that such threshold amount shall be $320,000,000 with respect to any Certain Specified Payment under Section 7.01(dd) in the event that the Lead Borrower shall have elected to include any Restricted Subsidiary that is a Foreign Subsidiary in the calculation of the Consolidated Fixed Charge Coverage Ratio required to be tested in such Section; provided further, that, with respect to any transaction consummated pursuant to Section 7.01(dd) (solely to the extent such transaction exceeds $15,000,000) or 7.06(e) (solely to the extent such transaction exceeds $15,000,000), satisfaction of such condition and any other financial tests in such section shall be evidenced by a certificate from the Chief Financial Officer or other financial officer of the Lead Borrower demonstrating, in reasonable detail, satisfaction thereof, which certificate shall be delivered to the Administrative Agent prior to making any Certain Specified Payment.
“Pro Rata Share” means, (a) with respect to each Tranche A Lender, such Lender’s Tranche A Commitment Percentage and (b) with respect to each Tranche A-1 Lender, such Lender’s Tranche A-1 Commitment Percentage.
“Projections” has the meaning specified in Section 6.01(c).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” has the meaning given such term in Section 10.08.
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“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.
“RE Addition Amount” means the Appraised Value of Additional Real Property determined as of the applicable RE Addition Date based on a Real Property Appraisal dated not earlier than six months prior to such RE Addition Date.
“RE Addition Date” means the date on which any parcel of Additional Real Property is added to Eligible Real Property after the Fifth Restatement Effective Date.
“RE Borrowing Base Amount” has the meaning specified in clause (c) of the definition of “Tranche A Borrowing Base.”
“RE Initial Amount” means the aggregate Appraised Value of each parcel of Eligible Real Property of the Borrower Parties determined as of the date of the Real Property Appraisals thereof conducted on or most recently before the Fifth Restatement Effective Date.
“RE Principal Reduction Amount” means, at any time of determination, an amount equal to the sum of (in each case, excluding any component of the following attributable to any Real Property that is no longer Eligible Real Property):
(a) for Real Property included in the Borrowing Base on the Fifth Restatement Effective Date, the product of (i) the RE Initial Amount, multiplied by (ii) 1/48th multiplied by (iii) the number of full fiscal quarters that have elapsed since the Fifth Restatement Effective Date; plus
(b) for all Additional Real Property, the sum of each product of (i) the applicable RE Addition Amount multiplied by (ii) 1/48th multiplied by (iii) the number of full fiscal quarters that have elapsed since the applicable RE Addition Date.
“Real Property” means all Leases and all land, tenements, hereditaments and any estate or interest therein, together with the buildings, structures, parking areas, and other improvements thereon (including all fixtures), now or hereafter owned by any Loan Party, including all easements, rights-of-way, and similar rights relating thereto and all leases, tenancies, and occupancies thereof.
“Real Property Appraisal” means an M.A.I. appraisal prepared by an independent M.A.I. appraiser reasonably acceptable to the Administrative Agent and prepared in accordance with the Administrative Agent’s customary independent appraisal requirements and in compliance with all applicable regulatory requirements, including without limitation, FIRREA.
“Receivables Purchaser” means (a) any Special Purpose Receivables Subsidiary or (b) any Person which is not an Affiliate of the Lead Borrower.
“Reference Date” has the meaning specified in the definition of “Available Amount”.
“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)
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Business Days preceding the date of such setting, and (b) if such Benchmark is not USD LIBOR, the time determined by Administrative Agent in its reasonable discretion.
“Register” has the meaning specified in Section 10.07(d).
“Related Rights and Property” means, with respect to any Account sold, conveyed, or otherwise transferred, or over which a security interest has been granted, pursuant to any Permitted Receivables Financing, all rights and properties associated with such Account, including all proceeds of such Accounts, all rights arising under any underlying contract or purchase order which gave rise to such Account, all monetary and performance guarantees (of any Person which is not an Affiliate of the Lead Borrower) guaranteeing such Account, all rights to replevin of the Goods sold in the creation of such Account, all rights of stoppage in transit, all returned Goods (to the extent constituting the Goods sold in the creation of such Account), all collateral securing such Account, Permitted Receivables DDAs established and maintained in connection with such Permitted Receivables Financing, all supporting obligations relating to such Account, and all other rights, assets, or properties customarily transferred (or in which security interests are customarily granted) in connection with a Permitted Receivables Financing.
“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Material in, into, onto or through the environment.
“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.
“Reportable Event” means with respect to any Plan any of the events set forth in Section 4043(c) of ERISA or the regulations issued thereunder, other than events for which the 30 day notice period has been waived.
“Reports” has the meaning specified in Section 9.15(b).
“Request for Credit Extension” means, with respect to a Borrowing, conversion or continuation of Revolving Loans, a Committed Loanwritten request for a Borrowing pursuant to Section 2.03(a) or a SOFR Notice.
“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the Aggregate Revolving Commitments or, if the Aggregate Revolving Commitments have been terminated, the aggregate Revolving Credit Extensions (calculated assuming settlement and repayment of all Swingline Loans by the applicable Lenders); provided that the portion of the aggregate Credit Extensions and Commitments held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Required Revolving Lenders” means, as of any date of determination, Revolving Lenders having more than 50% of the Aggregate Revolving Commitments, or if the Aggregate Revolving Commitments have been terminated, Revolving Lenders having more than 50% of the aggregate Revolving Credit Extensions (calculated assuming settlement and repayment of all Swingline Loans by the applicable Lenders); provided that the portion of the aggregate Revolving
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Credit Extensions or Commitments held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
“Reserves” means all (if any) Availability Reserves (including, without limitation, Priority Payable Reserves, Cash Management Reserves, Bank Product Reserves, Tax Stamp Reserves, Inventory Reserves, and any Designated Reserve; provided, however, that the Designated Reserve, if any, shall not be included in calculating average daily Excess Availability for purposes of determining the Applicable Rate or calculating Unused Fees).
“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer or assistant treasurer, senior director – treasury, or other similar officer of a Loan Party or a Guarantor and, as to any document delivered on the Fifth Restatement Effective Date, any secretary or assistant secretary of a Loan Party or a Guarantor. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party or a Guarantor shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party or such Guarantor and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party or such Guarantor.
“Restricted Cash” means when referring to cash or Cash Equivalents of the Lead Borrower or any of its Restricted Subsidiaries, that such cash or Cash Equivalents (i) appears (or would be required to appear) as “restricted” on a consolidated balance sheet of the Lead Borrower or of any such Restricted Subsidiary prepared in accordance with GAAP (unless such appearance is related to the Loan Documents or Liens created thereunder), (ii) are subject to any Lien in favor of any Person other than the Collateral Agent for the benefit of the Secured Parties or (iii) are not otherwise generally available for use by the Lead Borrower or such Restricted Subsidiary.
“Restricted Debt” has the meaning specified in Section 7.12(a).
“Restricted Debt Payments” in respect of any Restricted Debt, means any prepayments, redemptions, purchases and defeasances prior to the maturity thereof in respect of such Restricted Debt, including pursuant to any sinking fund or similar deposit.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of Holdings, the Lead Borrower or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to Holdings or the Borrowers’ stockholders, partners or members (or the equivalent Persons thereof).
“Restricted Subsidiary” means any Subsidiary of Holdings, or the Borrowers other than an Unrestricted Subsidiary.
“Revolving Commitments” means the Tranche A Commitments and the Tranche A-1 Commitments.
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“Revolving Credit Amount” means $4,000,000,000, as such amount may be increased or reduced in accordance with the terms of this Agreement.
“Revolving Credit Extensions” means, as of any date of determination, the sum of (a) the principal balance of all Revolving Loans (including Swingline Loans) then outstanding and (b) the then amount of the Letter of Credit Outstandings.
“Revolving Credit Facility” means the asset based revolving credit facility provided under this Agreement.
“Revolving Credit Notes” means the promissory notes of the Borrowers payable to any Lender or its registered assigns, substantially in the form of Exhibit B-1 hereto, evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting from Revolving Loans made by such Lender to the Borrowers, in each case, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
“Revolving Lender” means any Lender in its capacity as a Tranche A Lender or a Tranche A-1 Lender, as applicable.
“Revolving Loans” means the Tranche A Loans and Tranche A-1 Loans.
“Rolling Stock” means all yard tractors, trucks used for delivery or back haul, trailers and tractor/trailer rigs owned by the Borrower Parties (other than a Caribbean Party).
“Rolling Stock Appraisal” means an appraisal prepared by an independent appraiser reasonably acceptable to the Administrative Agent and prepared in accordance with the Administrative Agent’s customary independent appraisal requirements and in compliance with all applicable regulatory requirements.
“RS Addition Amount” means the Appraised Value of Additional Rolling Stock determined as of the applicable RS Addition Date based on a Rolling Stock Appraisal dated not earlier than six months prior to such RS Addition Date.
“RS Addition Date” means the date on which any Additional Rolling Stock is added to Eligible Rolling Stock after the Second Restatement Effective Date.
“RS Borrowing Base Amount” has the meaning specified in clause (d) of the definition of “Tranche A Borrowing Base.”
“RS Initial Amount” means the Appraised Value of Eligible Rolling Stock of the Borrower Parties determined as of the date of the Rolling Stock Appraisals thereof conducted on or most recently before the Second Restatement Effective Date.
“RS Initial Date” means the Second Restatement Effective Date.
“RS Principal Reduction Amount” means, at any time of determination, an amount equal to the sum of (in each case, excluding any component of the following attributable to any Rolling Stock that is no longer Eligible Rolling Stock):
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(a) for Rolling Stock included in the Borrowing Base on the Second Restatement Effective Date, the product of (i) the RS Initial Amount multiplied by (ii) 1/28th multiplied by (iii) the number of full fiscal quarters that have elapsed since the Second Restatement Effective Date; plus
(b) for all Additional Rolling Stock, the sum of each product of (i) the applicable RS Addition Amount multiplied by (ii) 1/28th multiplied by (iii) the number of full fiscal quarters that have elapsed since the applicable RS Addition Date.
“S&P” means Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
“Sale-Leaseback” means any transaction or series of related transactions pursuant to which the Lead Borrower or any of its Subsidiaries (a) Disposes of any property, real or personal (other than Accounts and Inventory), whether now owned, hereafter acquired or with respect to which the Lead Borrower or any of its Subsidiaries at one time had a right to purchase, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being Disposed.
“Same Day Funds” means immediately available funds.
“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 sanctions program administered and enforced by OFAC or any other Governmental Authority with jurisdiction over any Credit Party or its Affiliates or any Loan Party or any of their respective Subsidiaries or Affiliates.
“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 European Union or any European Union member state, (d) HerHis Majesty’s Treasury of the United Kingdom, (e) the Government of Canada, or (f) any other Governmental Authority with jurisdiction over any Credit Party or its Affiliates or any Loan Party or any of their respective Subsidiaries or Affiliates.
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“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Restatement Effective Date” means February 1, 2016.
“Secured Hedge Agreement” means any Swap Contract permitted under Section 7.03(f) that is entered into by and between any Loan Party and any Hedge Bank.
“Secured Parties” means (a) each Credit Party, (b) any Person providing Cash Management Services or entering into or furnishing any Bank Products (including Bank Product Providers) to or with any Loan Party, (c) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document, and (d) the successors and, subject to any limitations contained in this Agreement, assigns of each of the foregoing.
“Securities Act” means the Securities Act of 1933.
“Security Agreement” means the U.S. Security Agreement or Canadian Security Agreement as the context requires.
“Security Agreement Supplement” has the meaning specified in the applicable Security Agreement.
“Senior Notes” means the 2025 Senior Notes, the 2027 Senior Notes, and the 2029 Senior Notes.
“Settlement Date” has the meaning specified in Section 2.16(b).
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day publishedas administered 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 ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to timeDeadline” has the meaning specified therefor in Section 2.25(b)(i) of this Agreement.
“SOFR Loan” means each portion of a Loan that bears interest at a rate determined by reference to Adjusted Term SOFR (other than pursuant to clause (c) of the definition of “Base Rate”).
“SOFR Notice” means a written notice in the form of Exhibit M to this Agreement.
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“SOFR Option” has the meaning specified therefor in Section 2.25(a) of this Agreement.
“Sold Entity or Business” has the meaning specified in the definition of the term “Consolidated EBITDA”.
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property (for the avoidance of doubt, calculated to include goodwill and other intangibles) of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) with respect to a Person formed under the laws of Canada or any province or territory thereof, such Person is “solvent” or not “insolvent”, as applicable within the meaning given those terms and similar terms under applicable laws relating to bankruptcy and insolvency and fraudulent transfers and conveyances. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“SPC” has the meaning specified in Section 10.07(h).
“Special Purpose Receivables Subsidiary” shall mean a direct Subsidiary of the Lead Borrower or a Restricted Subsidiary which (a) is established in connection with a Permitted Receivables Financing for the acquisition of Accounts (and Related Rights and Property) or interests therein or the sale of Accounts (and Related Rights and Property) or interests therein to a Receivables Purchaser; (b) conducts no business other than business related to the establishment and maintenance of its existence or dissolution and business related to Permitted Receivables Financings; and (c) is organized in a manner intended to reduce the likelihood that it would be substantively consolidated with the Lead Borrower or any of its Subsidiaries (other than Special Purpose Receivables Subsidiaries) in the event the Lead Borrower or any such Subsidiary becomes subject to any Insolvency Proceeding.
“Specified Default” means the occurrence of any Event of Default specified in Section 8.01(a), 8.01(b)(ii), 8.01(f) or 8.01(g).
“Specified Equity Contribution” means cash equity contributions (which if in the form of preferred equity shall be on terms and conditions reasonably acceptable to the Administrative Agent) made to the Lead Borrower after the Fifth Restatement Effective Date and on or prior to the day on which any Borrowing hereunder is requested during a Trigger Event Cure Period or on or after the occurrence of any Trigger Event (FCCR), which equity contribution is added to Consolidated EBITDA for the purposes of calculating compliance with Section 6.17.
“Specified Existing Commitment” has the meaning specified in Section 2.23(a).
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“Specified Payments” means, with respect to any period, (A) any Investment permitted under Section 7.02(d)(v), (j), or (n), (B) any Indebtedness permitted under Section 7.03(h) or 7.03(n), or (C) any Disposition permitted by Section 7.05(f).
“Specified Transaction” means any Investment, Disposition, incurrence or repayment of Indebtedness, granting of a Lien, Restricted Payment, Subsidiary designation or Additional Loan that by the terms of this Agreement requires such test to be calculated on a “Pro Forma Basis” or after giving “Pro Forma Effect”; provided that an Additional Commitment, for purposes of this “Specified Transaction” definition, shall be deemed to be fully drawn.
“Standard Letter of Credit Practice” means, for Issuing Bank, any domestic or foreign law or letter of credit practices applicable in the city in which Issuing Bank 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.
“Standby Letter of Credit” means any Letter of Credit other than a Commercial Letter of Credit.
“Stated Amount” means at any time the maximum amount for which a Letter of Credit may be honored.
“Subordinated Captive Insurance Note” means the secured revolving notes issued by the Lead Borrower in favor of a Captive Insurance Subsidiary, in an aggregate principal amount up to $30,000,000, copies of which has been delivered to the Administrative Agent, which note shall contain subordination terms reasonably satisfactory to the Administrative Agent.
“Subordinated Contribution Note” means the subordinated promissory note issued by the Lead Borrower in favor of Holdings evidencing the $450,792,794.57 loan made by Holdings to the Lead Borrower on the Original Closing Date, which note shall be unsecured and fully subordinated to the Obligations, shall bear only pay-in-kind interest and shall mature not earlier than six months after the Maturity Date.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Holdings.
“Subsidiary Guarantor” means, collectively, the Subsidiaries of the Borrowers that are Guarantors.
“Successor Loan Party” has the meaning specified in Section 7.04(e).
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“Super Majority of Revolving Lenders” means, subject to Section 2.17(c)(ix) and as of any date of determination, Revolving Lenders having more than 66-2/3% of the Aggregate Revolving Commitments, or if the Aggregate Revolving Commitments have been terminated, Revolving Lenders having more than 66-2/3% of the aggregate Revolving Credit Extensions (calculated assuming settlement and repayment of all Swingline Loans by the applicable Revolving Lenders); provided that the portion of the aggregate Revolving Credit Extensions and Commitments held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Super Majority of Revolving Lenders.
“Supplemental Administrative Agent” has the meaning specified in Section 9.13(a) and “Supplemental Administrative Agents” shall have the corresponding meaning.
“Suppressed Excess Availability” means, on any date of determination, the sum of (a) Excess Availability plus (b) the lesser of (i) the Borrowing Base minus the Revolving Credit Amount (but not less than zero) and (ii) 5.0% of the Revolving Credit Amount.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined by the Hedge Bank in accordance with the terms thereof and in accordance with customary methods for calculating mark-to-market values under similar arrangements by the Hedge Bank.
“Swingline Lender” means ▇▇▇▇▇ Fargo, in its capacity as lender of Swingline Loans hereunder to the Borrowers hereunder.
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“Swingline Loan” means a loan made by the Swingline Lender to the Borrowers pursuant to Section 2.05.
“Swingline Loan Sublimit” means $400,000,000, as such amount may be increased or reduced in accordance with the provisions of this Agreement.
“Swingline Note” means the promissory notes of the Borrowers payable to any Revolving Lender or its registered assigns, substantially in the form of Exhibit B-2 hereto, evidencing the aggregate Indebtedness of the Borrowers to such Swingline Lender resulting from Swingline Loans made by such Swingline Lender to the Borrowers.
“Tax Stamp” means any tax stamp, excise tax stamp, adhesive stamp, meter stamp and similar stamp, regardless of whether fixed or unaffixed, which in each case evidence the valid and effective payment of taxes with respect to Tobacco Inventory to applicable Governmental Authorities.
“Tax Stamp Reserves” means, as of any date of determination, such amounts as the Administrative Agent may from time to time establish and revise in its commercially reasonable discretion, exercised in good faith, with respect to the sum of the “net stamp tax obligations” in each jurisdiction in which any Borrower Party or Guarantor purchases Tax Stamps, wherein the “net stamp tax obligations” for such jurisdiction are equal to the aggregate obligations and liabilities owing to any Governmental Authority in such jurisdiction for purchases of Tax Stamps (including any checks or instruments of payment issued by or on behalf of any Borrower Party or Guarantor which are held by such Governmental Authorities and not yet submitted for presentment and collection and the aggregate obligations and liabilities owing to any Governmental Authority in such jurisdiction based on an audit of a Borrower Party’s or Guarantor’s monthly Tax Stamp report delivered to any Governmental Authority in such jurisdiction, but excluding all such obligations and liabilities owing to any Governmental Authority in such jurisdictions as determined by Administrative Agent in its commercially reasonable discretion, exercised in good faith); provided, that, to the extent that any surety bonds have been issued to or for the benefit of any Governmental Authority in a jurisdiction with respect to which Administrative Agent has implemented a Tax Stamp Reserve, the Tax Stamp Reserve with respect to such Governmental Authority in such jurisdiction shall be equal to the greater of (a) the aggregate obligations and liabilities owing to such Governmental Authority in such jurisdiction and (b) the face amount of the surety bonds issued to or for the benefit of such Governmental Authority in such jurisdiction.
“Taxes” has the meaning specified in Section 3.01(a).
“Term Collateral” means any and all of the following assets of any Loan Party: (a) Real Property; (b) Equipment (including, without limitation, Rolling Stock); and (c) Equity Interests issued to a Loan Party, certain intercompany loans (as determined by the Administrative Agent in its reasonable discretion), and other fixed or capital assets (but excluding Intellectual Property), and other assets which would customarily constitute term loan priority collateral, as determined by the Administrative Agent in its reasonable discretion, and (d) all proceeds thereof.
“Term Collateral (Amortized)” means, at any time of determination, any item of Term Collateral (a) which constitutes Rolling Stock and (b) as to which the RS Principal Reduction
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Amount for such item equals or exceeds the RS Initial Amount or, the RS Addition Amount, as applicable, in the case, attributable to such item.
“Term Collateral Conditions” means, with respect to any Term Collateral and the occurrence of the Term Collateral Release or Term Collateral Subordination of such Term Collateral, each of the following conditions precedent (the satisfaction of which shall, in each case, be determined by the Administrative Agent in its reasonable discretion):
(a) Administrative Agent shall have received a written request from Lead Borrower identifying such Term Collateral and stating Lead Borrower’s desire to cause a Term Collateral Release or Term Collateral Subordination with respect to such Term Collateral (and, if such request relates to a Term Collateral Subordination, the Additional Permitted Debt to be secured by the Liens to which the Collateral Agent’s Liens will be subordinated);
(b) Lead Borrower shall have delivered to Administrative Agent a pro forma Borrowing Base Certificate, calculated by giving effect to the elimination of such Term Collateral from the calculation of the Borrowing Base;
(c) Lead Borrower shall have delivered to Administrative Agent a Compliance Certificate giving pro forma effect to such release or subordination and the incurrence of any Additional Permitted Debt related to such release or subordination;
(d) in the case of a Term Collateral Subordination, the Administrative Agent or the Collateral Agent shall have executed and delivered an Acceptable Intercreditor Agreement; and
(e) immediately after giving effect to such Term Collateral Release or Term Collateral Subordination, Alternate Availability (calculated on a pro forma basis by giving effect to any payment of Obligations with the proceeds of any Additional Permitted Debt which may be incurred in connection with such Term Collateral Release or Term Collateral Subordination, to the extent the Administrative Agent has been notified of such amount and such payment is made substantially contemporaneously with the incurrence of such Additional Permitted Debt) will equal or exceed 17.5% of the Loan Cap;
provided, however, that (A) the foregoing clauses (b), (c), and (e) shall not apply with respect to any Term Collateral Release or Term Collateral Subordination of any Term Collateral (Amortized) and (B) Lead Borrower may not request a Term Collateral Release or Term Collateral Subordination of Term Collateral (Amortized) more than one time per Fiscal Quarter (unless otherwise agreed to in writing by the Administrative Agent).
“Term Collateral Release” means, as to any Term Collateral which is Real Property or Equipment (and proceeds thereof and any related assets approved by the Administrative Agent in its discretion), the release of the Collateral Agent’s Liens arising under this Agreement or any other Loan Document on such Term Collateral, specifically or by type or class, as contemplated in Section 6.18(c); provided, however, that any prior Term Collateral Release may, with respect to any of such Term Collateral, be rescinded as contemplated in Section 6.18(d) and, in such case, such Term Collateral shall thereafter be deemed not to have been the subject of a Term Collateral Release (unless and until a new Term Collateral Release with respect to such Term Collateral occurs thereafter as contemplated in Section 6.18(c)).
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“Term Collateral Subordination” means, as to any Term Collateral, the subordination of the Collateral Agent’s Liens arising under this Agreement or any other Loan Document on such Term Collateral, specifically or by type or class, to Liens permitted under Section 7.01(ee) which secure Additional Permitted Debt, as contemplated in Section 6.18; provided, however, that any prior Term Collateral Subordination may, with respect to any of such Term Collateral, be rescinded as contemplated in Section 6.18(d) and, in such case, such Term Collateral shall thereafter be deemed not to have been the subject of a Term Collateral Subordination (unless and until a new Term Collateral Subordination with respect to such Term Collateral occurs thereafter as contemplated in Section 6.18(c)).
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been selected or recommendedpublished by the Relevant Governmental BodyTerm SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day.
“Term SOFR NoticeAdjustment” means a notification by Administrative Agent to the Lenders and Lead Borrower of the occurrence of a Term SOFR Transition Eventpercentage equal to 0.10% per annum.
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“Term SOFR Transition EventAdministrator” means the determinationCME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Administrative Agent that (ain its reasonable discretion) .
“Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for Administrative 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 3.09 with a Benchmark Replacement the Unadjusted Benchmark Replacement component of which is not TermReference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” means the earlier to occur of (a) the Maturity Date or (b) the date on which the maturity of the Obligations (other than the Other Liabilities) is accelerated (or deemed accelerated) and the Commitments are irrevocably terminated (or deemed terminated) in accordance with Article VIII.
“Territorial Caribbean Party” means a Caribbean Party organized in the U.S. Virgin Islands or the Commonwealth of Puerto Rico.
“Test Period” means, at any time of determination, the then most recent period of four consecutive fiscal quarters or twelve consecutive fiscal months of Holdings, as applicable, ended on or prior to such time (taken as one accounting period) in respect of which financial statements for each fiscal year, quarter or month in such period have been or are required to be delivered pursuant to Section 6.01(a), (b) or (f), respectively. A Test Period may be designated by reference to the last day thereof (i.e., “the March 31, 2012 Test Period” refers to the period of four consecutive fiscal quarters of Holdings ended March 31, 2012), and a Test Period shall be deemed to end on the last day thereof.
“Threshold Amount” means $50,000,000.
“Tobacco Inventory” means Inventory consisting of cigarettes and similar tobacco based products (such as cigars, pipe tobacco, chewing tobacco, and snuff) and any Tax Stamps permanently affixed thereto (with it being acknowledged and agreed that smoking and tobacco related inventory which is not tobacco based (such as e-cigarettes, vape pens, vape liquid, etc.) constitutes Inventory but does not constitute Tobacco Inventory).
“Total Assets” means the total assets of Holdings, the Lead Borrower and the Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of Holdings delivered pursuant to Section 6.01(a) or (b).
“Tranche A Acquired Assets Amount” means, at any time of determination, an amount equal to the aggregate amount of availability under the Tranche A Borrowing Base derived from Acquired Borrowing Base Assets.
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“Tranche A Borrowing Base” means, at any time of calculation, an amount equal to:
plus
(i) the product of (A) the Cost of the sum of Eligible Inventory plus Eligible In-Transit Inventory of the Borrower Parties (not including, in any case under this clause (i), Tax Stamps or Tobacco Inventory), multiplied by the Inventory Advance Rate for the Tranche A Borrowing Base, multiplied by (B) the NOLV Percentage;
(ii) the product of (A) the Cost of the sum of Eligible Tobacco Inventory plus Eligible In-Transit Tobacco Inventory of the Borrower Parties, multiplied by the Inventory Advance Rate for the Tranche A Borrowing Base, multiplied by (B) the NOLV Percentage; and
(iii) the product of (A) the Cost of Eligible Net Unaffixed Tax Stamps, multiplied by (B) the Inventory Advance Rate for the Tranche A Borrowing Base;
plus
(i) 75% of the most recently determined Appraised Value of all Eligible Real Property of the Borrower Parties; and
(ii) 75% of the sum of (A) the RE Initial Amount, plus (B) the total RE Addition Amounts, minus (C) the RE Principal Reduction Amount;
plus
(i) 80% of the most recently determined Appraised Value of all Eligible Rolling Stock of the Borrower Parties; and
(ii) 80% of the sum of (A) the RS Initial Amount, plus (B) the total RS Addition Amounts, minus (C) the RS Principal Reduction Amount;
minus
provided that:
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(1) the aggregate amount calculated pursuant to the foregoing paragraphs (c) and (d) included in the determination of the Tranche A Borrowing Base shall not exceed 25% of the Revolving Credit Amount;
(2) the aggregate amount calculated pursuant to the foregoing paragraph (d) included in the determination of the Tranche A Borrowing Base shall not exceed the Trigger Amount;
(3) the aggregate amount of Eligible Accounts and Eligible Inventory of Non-Territorial Caribbean Parties included in the determination of the Tranche A Borrowing Base shall not exceed $50,000,000;
(4) Acquired Accounts and Acquired Inventory (including Acquired Accounts (CM) and Acquired Inventory (CM)) relating to a Permitted Acquisition may be included in the calculation of the Tranche A Borrowing Base, subject to each of the following:
(A) with respect to Permitted Acquisitions other than the Core-Mark Acquisition:
(1) until (but not including) the date on which the fourth Borrowing Base Certificate in which any of such Acquired Accounts and Acquired Inventory relating to such Permitted Acquisition are first included in the calculation of the Borrowing Base (but not to exceed 120 days after the date of the first of such Borrowing Base Certificates), the amount of availability under the Tranche A Borrowing Base derived from such Acquired Accounts and Acquired Inventory shall not exceed the lesser of (I) 10% of the Tranche A Borrowing Base and (II) the sum of 70% of the book value of such Acquired Accounts, plus 50% of the book value of such Acquired Inventory; and
(2) after the period described in the foregoing clause (A) and continuing until the first anniversary of such Permitted Acquisition, the amount of availability under the Tranche A Borrowing Base derived from such Acquired Accounts and Acquired Inventory relating to such Permitted Acquisition shall not exceed the lesser of (I) 5% of the Tranche A Borrowing Base and (II) the sum of 70% of the book value of such Acquired Accounts, plus 50% of the book value of such Acquired Inventory;
(B) solely with respect to the Core-Mark Acquisition, until (but not including) the date on which the fourth Borrowing Base Certificate in which any of such Acquired Accounts (CM) and Acquired Inventory (CM) relating to the Core-Mark Acquisition are first included in the calculation of the Borrowing Base (but not to exceed 120 days after the date of the first of such Borrowing Base Certificates), the amount of availability under the Tranche A Borrowing Base derived from such Acquired Accounts (CM) and Acquired Inventory (CM) shall not exceed the sum of 70% of the book value of such Acquired Accounts, plus 50% of the book value of such Acquired Inventory; and
(C) no Acquired Accounts or Acquired Inventory (including Acquired Accounts (CM) and Acquired Inventory (CM)) shall be included in the calculation of the Tranche A Borrowing Base except to the extent such assets otherwise constitute Eligible Accounts or Eligible Inventory, as applicable;
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(5) unaffixed Tax Stamps acquired, or owned or purchased by a Person acquired, in a Permitted Acquisition or any other acquisition shall not be included in the Tranche A Borrowing Base until the Administrative Agent has completed its collateral diligence with respect such Permitted Acquisition or acquisition (provided, however, that this clause (5) shall not apply to unaffixed Tax Stamps owned by any Core-Mark Acquired Company or any of its Subsidiaries which are Credit Parties); and
(6) for purposes of determining the amount of or the value or Cost of Eligible Inventory or Eligible In-Transit Inventory owned by a Canadian Subsidiary or Eligible Accounts owing to a Canadian Subsidiary in Canadian Dollars, such amounts shall be calculated at the Dollar Equivalent thereof; and
(7) the amount of availability under the Tranche A Borrowing Base derived from (I) Eligible Accounts which are owing by any Account Debtor organized under the laws of any province or territory in Canada and (II) Eligible Inventory and Eligible In-Transit Inventory of any Borrower Party which is located in, or is in-transit to, any location in Canada included in the determination of the Tranche A Borrowing Base shall not exceed $400,000,000 in the aggregate.
“Tranche A Commitment” means, with respect to each Tranche A Lender, the commitment of such Tranche A Lender hereunder set forth as its Tranche A Commitment opposite its name on Schedule I hereto or as may subsequently be set forth in the Register from time to time, as the same may be increased or reduced from time to time pursuant to this Agreement (including pursuant to Section 2.17). As of the Fifth Restatement Effective Date, the Tranche A Commitments aggregate $3,835,000,000.
“Tranche A Commitment Percentage” means, with respect to each Tranche A Lender, that percentage of the Tranche A Commitments of all Lenders hereunder to make Tranche A Loans to the Borrowers in the amount set forth opposite its name on Schedule I hereto or as may subsequently be set forth in the Register from time to time, as the same may be increased or reduced from time to time pursuant to this Agreement, or if the Tranche A Commitments have been terminated, such percentage as calculated immediately prior to such termination.
“Tranche A Credit Extensions” means Tranche A Loans and Letters of Credit issued hereunder.
“Tranche A Lender” means each Lender which holds a Tranche A Commitment and any other Person who becomes a “Tranche A Lender” in accordance with the provisions of this Agreement.
“Tranche A Loans” means collectively, the Loans (including Swingline Loans) made by the Lenders pursuant to Article II, other than Tranche A-1 Loans.
“Tranche A-1 Borrowing Base” means, at any time of calculation, an amount equal to:
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plus
(i) the product of (A) the Cost of the sum of Eligible Inventory plus Eligible In-Transit Inventory of the Borrower Parties (not including, in any case under this clause (i), Tax Stamps or Tobacco Inventory), multiplied by the Inventory Advance Rate for the Tranche A-1 Borrowing Base, multiplied by (B) the NOLV Percentage;
(ii) the product of (A) the Cost of the sum of Eligible Tobacco Inventory plus Eligible In-Transit Tobacco Inventory of the Borrower Parties, multiplied by the Inventory Advance Rate for the Tranche A-1 Borrowing Base, multiplied by (B) the NOLV Percentage; and
(iii) the product of (A) the Cost of Eligible Net Unaffixed Tax Stamps, multiplied by (B) the Inventory Advance Rate for the Tranche A-1 Borrowing Base;
plus
plus
plus
minus
provided that:
(1) the aggregate amount calculated pursuant to the foregoing paragraphs (c) and (d) included in the determination of the Tranche A-1 Borrowing Base shall not exceed 25% of the Revolving Credit Amount;
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(2) the aggregate amount calculated pursuant to the foregoing paragraph (d) included in the determination of the Tranche A-1 Borrowing Base shall not exceed the Trigger Amount;
(3) the aggregate amount of Eligible Accounts and Eligible Inventory of Non-Territorial Caribbean Parties included in the determination of the Tranche A-1 Borrowing Base shall not exceed $50,000,000;
(4) Acquired Borrowing Base Assets shall be excluded in their entirety in calculating the Tranche A-1 Borrowing Base (except to the extent provided in the foregoing paragraph (e));
(5) for purposes of determining the amount of or the value or Cost of Eligible Inventory or Eligible In-Transit Inventory owned by a Canadian Subsidiary or Eligible Accounts owing to a Canadian Subsidiary in Canadian Dollars, such amounts shall be calculated at the Dollar Equivalent thereof; and
(6) the amount of availability under the Tranche A-1 Borrowing Base derived from (I) Eligible Accounts which are owing by any Account Debtor organized under the laws of any province or territory in Canada and (II) Eligible Inventory and Eligible In-Transit Inventory of any Borrower Party which is located in, or is in-transit to, any location in Canada included in the determination of the Tranche A-1 Borrowing Base shall not exceed $400,000,000 in the aggregate.
“Tranche A-1 Commitment” means, with respect to each Tranche A-1 Lender, the commitment of such Tranche A-1 Lender hereunder set forth as its Tranche A-1 Commitment opposite its name on Schedule I hereto or as may subsequently be set forth in the Register from time to time, as the same may be reduced from time to time pursuant to this Agreement. As of the Fifth Restatement Effective Date, the Tranche A-1 Commitments aggregate $165,000,000.
“Tranche A-1 Commitment Percentage” means, with respect to each Tranche A-1 Lender, that percentage of the Tranche A-1 Commitments of all Lenders hereunder to make Tranche A-1 Loans to the Borrowers in the amount set forth opposite its name on Schedule I hereto or as may subsequently be set forth in the Register from time to time, as the same may be reduced from time to time pursuant to this Agreement, or if the Tranche A-1 Commitments have been terminated, such percentage as calculated immediately prior to such termination.
“Tranche A-1 Credit Extensions” means Tranche A-1 Loans.
“Tranche A-1 Lender” means each Lender which holds a Tranche A-1 Commitment and any other Person who becomes a “Tranche A-1 Lender” in accordance with the provisions of this Agreement.
“Tranche A-1 Loan” means, collectively, the Revolving Loans made by the Tranche A-1 Lenders pursuant to Section 2.01(a).
“Transaction Expenses” means all arrangement, upfront and similar fees and other out-of-pocket fees and expenses paid by the Borrowers in connection with the Transactions.
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“Transactions” means, collectively, (a) the execution and delivery of this Agreement and the amendment, amendment and restatement, ratification, or modification of the other Loan Documents on the Fifth Restatement Effective Date, (b) the initial borrowings and other extensions of credit under the Revolving Credit Facility hereunder on the Fifth Restatement Effective Date, and (c) the payment of the Transaction Expenses.
“Trigger Amount” means an amount equal to the greater of (a) $320,000,000 and (b) 10% of the lesser of (i) the Borrowing Base and (ii) the Revolving Credit Amount.
“Trigger Amount (Collateral Reporting)” means an amount equal to 12.50% of the lesser of (a) the Revolving Credit Amount and (b) the Borrowing Base.
“Trigger Event (Cash Dominion)” means either (a) the occurrence and continuance of any Specified Default or Event of Default specified in Section 8.01(l)(i), (b) Alternate Availability shall fall below the Trigger Amount for five consecutive Business Days or (c) Excess Availability shall fall below $0 at any time. For purposes of this Agreement, the occurrence of a Trigger Event (Cash Dominion) shall be deemed continuing (unless the Administrative Agent otherwise agrees in its reasonable discretion or the Administrative Agent, in its reasonable judgment, has determined that the circumstances surrounding such Specified Default or Event of Default specified in Section 8.01(l)(i) cease to exist) until (i) all Specified Defaults and any Event of Default specified in Section 8.01(l)(i) are no longer continuing or have been waived and/or (ii) if the Trigger Event (Cash Dominion) arises under clause (b) or (c) above, Alternate Availability for any thirty consecutive calendar days occurring thereafter is equal to or greater than the Trigger Amount; provided that a fourth Trigger Event (Cash Dominion) in any period of 365 consecutive days shall be deemed to continue for the entire term of the Revolving Credit Facility notwithstanding the occurrence of an event described in clause (i)or (ii) above.
“Trigger Event (FCCR)” means Alternate Availability shall fall below the Trigger Amount for five consecutive Business Days. For purposes of this Agreement, the occurrence of a Trigger Event (FCCR) shall be deemed continuing until Alternate Availability for any 60 consecutive calendar days occurring thereafter is equal to or greater than the Trigger Amount.
“Trigger Event Cure Period” means the five consecutive Business Day period starting on the day that Alternate Availability falls below the Trigger Amount.
“Type” means, with respect to any Loan or Borrowing, its character as a Base Rate Loan or a LIBORSOFR Loan.
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“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Uncontrolled Cash” means an amount equal to the lesser of (a) the sum of $15,000,000 plus all Restricted Cash then held by the Loan Parties which was received in the ordinary course of business, and (b) $35,000,000.
“Unfinanced Capital Expenditures” means, with respect to any Person and for any period, Capital Expenditures made by such Person during such period and not financed from the proceeds of Indebtedness (other than with the proceeds of Credit Extensions).
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that if a term is defined in Article 9 of the Uniform Commercial Code differently than in another Article thereof, the term shall have the meaning set forth in Article 9; provided, further that, if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of a security interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.
“United States” and “U.S.” mean the United States of America.
“Unrestricted Subsidiaries” means (i) each Subsidiary of Holdings listed on Schedule 1.01C and (ii) any Subsidiary of Holdings (other than the Borrowers) designated by the board of directors of Holdings as an Unrestricted Subsidiary pursuant to Section 7.15 after the Fifth Restatement Effective Date and any Subsidiary of an Unrestricted Subsidiary.
“Unused Fee” has the meaning provided in Section 2.11(b).
“USA PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.
“USD LIBOR” means the London interbank offered rate for Dollars.U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association, or any successor thereto, recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities; provided, that for purposes of notice requirements in Sections 2.03(a) and 2.25(b), in each case, such day is also a Business Day.
“U.S. Lender” has the meaning specified in Section 10.15(b).
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“U.S. Security Agreement” means, collectively, that certain Fifth Amended and Restated Security Agreement executed by the Loan Parties on the Fifth Restatement Effective Date, together with each other security agreement supplement executed and delivered pursuant to Sections 6.11, 6.13 or 6.18.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then outstanding principal amount of such Indebtedness.
“▇▇▇▇▇ Fargo” means ▇▇▇▇▇ Fargo Bank, National Association (as successor by merger to Wachovia Bank, National Association).
“wholly owned” means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.
“Withdrawal Liability” means the liability owed to a Multiemployer Plan as a result of a complete or partial withdrawal by a Borrower or any of its ERISA Affiliates 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.
. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
94
.
95
. Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
. Unless otherwise expressly provided herein, (a) references to Organization Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by any Loan Document; and (b) references to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Law.
. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
. When the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the
96
date of such payment (other than as described in the definition of Interest Period) or performance shall extend to the immediately succeeding Business Day.
.
. Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face amount of such Letter of Credit in effect at such time, determined at the Dollar Equivalent thereof.
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. 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.
. In connection with any action being taken in connection with a Limited Condition Acquisition for purposes of (a) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Fixed Charge Coverage Ratio, the Consolidated Secured Net Leverage Ratio, the Consolidated Total Leverage Ratio, or any other financial ratio hereunder or any testing of baskets set forth in this Agreement, in each case, at the option of the Lead Borrower (the Lead Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder (including the incurrence of any Indebtedness and the making of any Investment), shall be deemed to be the date on which the definitive agreements for such Limited Condition Acquisition are entered into (except as provided below, the “LCA Test Date”), and if, after giving Pro Forma Effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of the Lead Borrower are available, the Lead Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with and (b) determining compliance with any provisions of this Agreement which requires that no Default, Event of Default, Specified Default, or specified Event of Default, as applicable, has occurred, is continuing, or would result from any such action, as applicable, such condition shall be deemed satisfied so long as no Default, Event of Default, Specified Default, or specified Event of Default, as applicable, exists on the LCA Test Date; provided, however, that, in all cases, such Limited Condition Acquisition shall be consummated on or before the date which is 180 days after the LCA Test Date (provided, however, that if such Limited Condition Acquisition shall not have been consummated on or before the such 180th day and the definitive documents for such Limited Condition Acquisition shall have neither been terminated nor expired, the Lead Borrower may elect to reset the LCA Test Date for such Limited Condition Acquisition so that the LCA Test Date for all purposes of this Section 1.11 relating to such Limited Condition Acquisition shall be the same date on which such 180-day period would have otherwise ended and, in such case, the LCA Test Date for such Limited Condition Acquisition shall be such reset LCA Test Date and all determinations made on the LCA Test Date under this Section 1.11 with respect to such Limited Condition Acquisition shall be made anew on such reset LCA Test Date, taking into account all facts and circumstances existing as of such reset LCA Test Date). If the Lead Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any calculation of any ratio, test, or basket with respect to any transaction permitted hereunder (each, a “Subsequent Transaction”) following the relevant LCA Test Date
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and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be required to be satisfied on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof or the making of any Investment) have been consummated.
. The interest rate on LIBOR Loans and Base Rate Loans (when determined by reference to clause (b) of the definition of Base Rate) may be determined by reference to LIBOR, which is derived from the London interbank offered rate. The London interbank offered rate 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, 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 Dollars for: (a) 1-week and 2-month tenor settings will be December 31, 2021 and (b) 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 immediately after such dates, the London interbank offered rate for such tenors may no longer be available or may no longer be deemed a representative reference rate upon which to determine the interest rate on LIBOR Loans or Base Rate Loans (when determined by reference to clause (b) of the definition of Base Rate). 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 the London interbank offered rate. 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 3.09, such Section 3.09 provides a mechanism for determining an alternative rate of interest. Agent will notify the Lead Borrower, pursuant to Section 3.09, of any change to the reference rate upon which the interest rate on LIBOR Loans and Base Rate Loans (when determined by reference to clause (b) of the definition of Base Rate) is based. However,Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (ia) the continuation of, administration of, submission of, calculation of or any other matter related to the London interbank offered rateTerm SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark, any component definition thereof or rates referred to in the definition of “LIBOR”thereof, 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 3.092.25(d)(iii), will be similar to, or produce the same value or economic equivalence of, LIBOR
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or any other Benchmark, or have the same volume or liquidity as did, the London interbank offered rateTerm SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark, prior to its discontinuance or unavailability, or (iib) the effect, implementation or composition of any Benchmark Replacement Conforming Changes. Administrative Agent and its Affiliatesaffiliates or other related entities may engage in transactions that affect the calculation of a Benchmarkthe Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to a Borrower. Administrative Agent may select information sources or services in its reasonable discretion to ascertain anythe Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any other Benchmark, any component definition thereof or rates referencedreferred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to any Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
. For all purposes pursuant to which the interpretation or construction of this Agreement may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (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 “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, (g) any “right of offset”, “right of setoff” or similar expression shall include a “right of compensation”, (h) “goods” shall include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (i) an “agent” shall include a “mandatary”, (j) “construction liens” or “materialmen’s, repairman’s, construction contractors’, mechanics’ and other like Liens” shall include “legal hypothecs”, (k) “joint and several” shall include “solidary”, (l) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (m) “beneficial ownership” shall include “ownership on behalf of another as mandatary”, (n) “easement” shall include “servitude”, (o) “priority” shall include “prior claim”, (p) “survey” shall include “certificate of location and plan”, (q) “accounts” shall include “claims” and “monetary claims”, (r) “fee simple title” shall include “absolute ownership”, (s) “leasehold interest” shall include “a valid lease” and (t) any reference to a PPSA financing statement, financing change statement or like document shall include the equivalent filing under the Civil Code. 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).
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The Commitments and Credit Extensions
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provided, that such indemnity shall not be available to any Letter of Credit Related Person claiming indemnification under clauses (i) through (xiii) above to the extent that such Letter of Credit Indemnified Costs are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted directly from the gross negligence, bad faith, or willful misconduct of such Letter of Credit Related Person claiming indemnity. Borrowers hereby agree to pay the Letter of Credit Related Person claiming indemnity within ten Business Days after demand therefor all amounts owing under this Section 2.06(f). If and to the extent that the obligations of Borrowers under this Section 2.06(f) are unenforceable for any reason, Borrowers agree to make the maximum contribution to the Letter of Credit Indemnified Costs permissible under applicable law. This indemnification provision shall survive termination of this Agreement and all Letters of Credit.
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provided, that subject to Section 2.06(g) above, the foregoing shall not release Issuing Bank from such liability to Borrowers as may be finally determined in a final, non-appealable judgment of a court of competent jurisdiction against Issuing Bank following reimbursement or payment of the
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obligations and liabilities, including reimbursement and other payment obligations, of Borrowers to Issuing Bank arising under, or in connection with, this Section 2.06 or any Letter of Credit.
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and the result of the foregoing is to increase, directly or indirectly, the cost to the Administrative Agent, any Issuing Bank or any Lender of issuing, making, participating in, or maintaining any Letter of Credit or to reduce the amount receivable in respect thereof, then, and in any such case, Administrative Agent may, at any time within a reasonable period after the additional cost is incurred or the amount received is reduced, notify the Lead Borrower, and Borrowers shall pay within 30 days after written demand therefor, such amounts as Administrative Agent may specify to be necessary to compensate the Administrative Agent, any Issuing Bank or any Lender for such additional cost or reduced receipt, together with interest on such amount from the date of such demand until payment in full thereof at the rate then applicable to Base Rate Loans hereunder; provided, that (A) Borrowers shall not be required to provide any compensation pursuant to this Section 2.06(l) for any such amounts incurred more than 180 days prior to the date on which the demand for payment of such amounts is first made to Borrowers, and (B) if an event or circumstance giving rise to such amounts is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. The determination by
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Administrative Agent of any amount due pursuant to this Section 2.06(l), as set forth in a certificate setting forth the calculation thereof in reasonable detail, shall, in the absence of manifest or demonstrable error, be final and conclusive and binding on all of the parties hereto.
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Notwithstanding any of the other provisions of this Section 2.08 or Section 2.09, so long as no Event of Default shall have occurred and be continuing, if any prepayment of LIBORSOFR Loans is required to be made under this Section 2.08 or Section 2.09, prior to the last day of the Interest Period therefor and less than three months are remaining in such Interest Period, in lieu of making any payment pursuant to this Section 2.08 or Section 2.09 in respect of any such LIBORSOFR Loan prior to the last day of the Interest Period therefor, the Borrowers may, in their sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder into a Cash Collateral Account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrowers or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.08 or Section 2.09. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrowers or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with the relevant provisions of this Section 2.08 or Section 2.09.
. The outstanding Obligations shall be subject to prepayment and/or cash collateralization of Letters of Credit as follows:
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. All computations of interest for Base Rate Loans when the Base Rate is determined by the “prime lending rate” shall be made on the basis of a year of 365 days or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360 day year and actual days elapsed. Interest shall accrue on each Loan for the day on
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which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.14(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
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A notice of the Administrative Agent to any Lender or the Borrowers with respect to any amount owing under this Section 2.14(c) shall be conclusive, absent manifest error.
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. If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of the Loans made by it or the participations in Letters of Credit and Swingline Loans held by it, any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof or contrary to the priority of the Obligation in respect of which such payment was obtained (as determined by the Administrative Agent by reference to the priorities demonstrated in Section 8.04), such Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them and/or such subparticipations in the participations in Letters of Credit or Swingline Loans held by them, as the case may be, in each case, of the then outstanding highest priority (as determined by the Administrative Agent by reference to the priorities demonstrated in Section 8.04) as shall be necessary to cause such purchasing Lender to share the excess payment in respect of such Loans or such participations of such priority, as the case may be, pro rata with each of them (and so on with respect to the Obligations of next highest priority); provided that (x) all such payments so obtained by a Lender shall be deemed to be a payment in respect of then outstanding Obligations of the highest priority and, only after all Obligations in respect of such then highest priority have been paid or cash collateralized as required herein, shall any excess be deemed to be a payment in respect of the Obligations of the next highest priority (and so on) and (y) if all or any portion of such excess payment is thereafter recovered from the purchasing Lender under any of the circumstances described in Section 10.06 (including pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying ▇▇▇▇▇▇’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered, without further interest thereon. The Borrowers agree that any Lender so purchasing a participation from another Lender may, to the fullest extent permitted by applicable Law, exercise all its rights of payment (including the right of setoff, but subject to Section 10.09) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.15 and will in each case notify the Lenders following any such purchases or repayments. Each Lender that purchases a participation pursuant to this Section 2.15 shall from and after such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.
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If, at any time during the continuance of a Trigger Event (Cash Dominion) (except with respect to any payroll, trust and tax withholding accounts, any Permitted Receivables DDA, and any “zero balance” disbursement account which is linked to or funded by (either directly or through one or more other DDAs or Deposit Accounts, each of which is a “zero balance” disbursement account) a DDA or other Deposit Account which is subject to a Blocked Account Agreement), any cash or Cash Equivalents owned by any Loan Party (other than Uncontrolled Cash) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Collateral Agent may require the applicable Loan Party to close such account and have all funds therein transferred to a Blocked Account, and all future deposits made to a Blocked Account which is subject to a Blocked Account Agreement. In addition to the foregoing, during the continuance of a Trigger Event (Cash Dominion), the Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts.
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provided that:
No Lender shall have any obligation to agree to have any of its Existing Loans or Existing Commitments of any Existing Tranche converted into Extended Loans or Extended Commitments pursuant to any Extension Notice. Any Extended Commitments shall constitute a separate Extended Tranche of Commitments from the Specified Existing Commitments and from any other Existing Commitments (together with any other Extended Commitments so established on such date).
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In connection with any assignment by a Non-Extending Lender under Section 2.23(e)(i), if the Non-Extending Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Assumption and/or any other documentation necessary to reflect such assignment by the later of (A) the date on which the new Lender executes and delivers such Assignment and Assumption and/or such other documentation and (B) the date as of which all obligations of the Borrowers owing to the Non-Extending Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender to such Non-Extending Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and
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Assumption and/or such other documentation as of such date and the Lead Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Assumption and/or such other documentation on behalf of such Non-Extending Lender.
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Taxes, Increased Costs Protection and Illegality
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. Subject to the provisions set forth in Section 3.09, if any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund LIBOR Loans, or to determine or charge interest rates based upon LIBOR, then, on notice thereof by such Lender to the Lead Borrower through the Administrative Agent, any obligation of such Lender to make or continue LIBOR Loans or to convert Base Rate Loans to LIBOR Loans shall be suspended until such Lender notifies the Administrative Agent and the Lead Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrowers shall upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all LIBOR Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Loans to such day, or promptly, if such Lender may not lawfully continue to maintain such LIBOR Loans. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted and all amounts due, if any, in connection with such prepayment or conversion under Section 3.05. Each Lender agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.
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. Subject to the provisions set forth in Section 3.09, if the Required Lenders determine that for any reason adequate and reasonable means do not exist for determining LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan, or that LIBOR for any requested Interest Period with respect to a proposed LIBOR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, or that Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and the Interest Period of such LIBOR Loan, the Administrative Agent will promptly so notify the Lead Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Lead Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of LIBOR Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
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(a) If any Lender determines that as a result of any Change in Law, in each case after the Fifth Restatement Effective Date, or such Lender’s compliance therewith,
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there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining LIBOR Loans or issuing or participating in Letters of Credit, or a reduction in the amount received or receivable by such Lender in connection with any of the foregoing (excluding for purposes of this Section 3.04(a) any such increased costs or reduction in amount resulting from (i) Taxes or Other Taxes covered by Section 3.01, (ii) the imposition of, or any change in the rate of, any net income taxes and franchise taxes imposed in lieu of net income taxes (however denominated) payable by such Lender (including additions to tax, penalties and interest with respect thereto), (iii) taxes (including additions to tax, penalties and interest) excluded from the definition of Taxes pursuant to Section 3.01(a) or described in Section 3.01(d) or 10.15(a)(iii), or (iv) reserve requirements contemplated by Section 3.04(c)), then from time to time within 15 days after demand by such Lender setting forth in reasonable detail such increased costs (with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrowers shall pay to such Lender such additional amounts as will compensate such Lender for such increased cost or reduction.
(c) Thenotice, Borrowers shallagree to pay to each Lender, (i) as long asIssuing Bank or such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including LIBOR funds or deposits, additional interest on demand the unpaid principal amount of each LIBOR Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (assuch reduction of return of capital as and when such reduction is determined, payable within 30 days after presentation by Issuing Bank or such Lender in good faith, which determination shall be conclusive in the absence of manifest error), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the LIBOR Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if
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necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitmentof a statement in the amount and setting forth in reasonable detail Issuing Bank’s or Loan by such Lender (as determined by such Lender in good faith, ’s calculation thereof and the assumptions upon which such calculation was based (which determinationstatement shall be conclusivedeemed true and correct absent manifest error) which in each case shall be due and payable on each date on which interest is payable on such Loan, provided the Lead Borrower shall have received at least 15 days’ prior notice (with a copy to the Administrative Agent) of such additional interest. In determining such amount, Issuing Bank or cost from such Lender. If a Lender fails to give notice 15 days prior to the relevant Interest Payment Date, such additional interest or cost shall be due and payable 15 days from receipt of such notice.
(d) Subject to Section 3.06(b), failure may use any reasonable averaging and attribution methods. Failure or delay on the part of Issuing Bank or any Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of Issuing Bank’s or such Lender’s right to demand such compensation; provided, that the Borrowers shall not be required to compensate Issuing Bank or a Lender pursuant to this Section 3.04(a), (b) or (c) for any such increased cost or reductionreductions in return incurred more than 180 days prior to the date that such Lender demands,Issuing Bank or such Lender notifies the Lead Borrower of itsBorrowers of such Change in Law giving rise to such reductions and of such Lender’s intention to demand,claim compensation therefor; provided, further, that, if the circumstance giving rise to such increased cost or reductionsuch claim arises by reason of the Change in Law that is retroactive, then suchthe 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(e) If any Lender requests compensation under this Section 3.04, then such Lender will, if requested by the Lead Borrower, use commercially reasonable efforts at Borrowers’ expense to designate another Lending Office for any Loan or Letter of Credit affected by such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage; and provided, further that nothing in this Section 3.04(e) shall affect or postpone any of the Obligations of the Borrowers or the rights of such Lender pursuant to Section 3.04(a), (b), (c) or (d).
(f) [Reserved].
Section 3.05 Funding Losses
. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense (collectively, “Breakage Costs”) incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan; or
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including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.
For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each LIBOR Loan made by it at LIBOR for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such LIBOR Loan was in fact so funded.
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(c) If the obligation of any Lender to make or continue from one Interest Period to another any LIBOR Loan, or to convert Base Rate Loans into LIBOR Loans shall be suspended pursuant to Section 3.06(b), such Lender’s LIBOR Loans shall be automatically converted into Base Rate Loans on the last day(s) of the then current Interest Period(s) for such LIBOR Loans (or, in the case of an immediate conversion required by Section 3.02, on such earlier date as required by Law) and, unless and until such Lender gives notice as provided below that the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04 hereof that gave rise to such conversion no longer exist:
(i) to the extent that such ▇▇▇▇▇▇’s LIBOR Loans have been so converted, all payments and prepayments of principal that would otherwise be applied to such Lender’s LIBOR Loans shall be applied instead to its Base Rate Loans; and
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(ii) all Loans that would otherwise be made or continued from one Interest Period to another by such Lender as LIBOR Loans shall be made or continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would otherwise be converted into LIBOR Loans shall remain as Base Rate Loans.
(d) If any Lender gives notice to the Lead Borrower (with a copy to the Administrative Agent) that the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04 hereof that gave rise to the conversion of such ▇▇▇▇▇▇’s LIBOR Loans pursuant to this Section 3.06 no longer exist (which such ▇▇▇▇▇▇ agrees to do promptly upon such circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as to principal amounts, interest rate basis, and Interest Periods) in accordance with their respective Commitments.
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(i) (A) the Lead Borrower or the Administrative Agent has requested that the Lenders (or the Lenders with respect to any Class) consent to a departure or waiver of any provisions of the Loan Documents or agree to any amendment thereto, (B) the consent, waiver or amendment in question requires the agreement of all affected Lenders (or all affected Lenders relating to such Class) in accordance with the terms of Section 10.01 or all the Lenders (or all Lenders of such Class), (C) the Required Lenders have agreed to such consent, waiver or amendment, and (D) such Lender has not agreed to such consent, waiver, or amendment; or
(ii) (A) a Lender shall have been notified by the Administrative Agent of any contemplated Additional Credit Amendment, Extension Amendment, or Additional Extension Amendment, or other amendment hereto which has the effect of extending the Maturity Date, and such Lender shall not, for whatever reason, have provided to the Lead Borrower all of such ▇▇▇▇▇▇’s confirmations under Section 10.25 within the time period specified in Section 10.25, and (B) the Required Lenders (or, if applicable only to a certain Class, the Required Lenders determined with respect to such Class) shall have provided such confirmation within such time period.
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. All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.
Section 3.09 Benchmark Replacement Setting
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(a) Benchmark Replacement.
(i) Notwithstanding anything to the contrary herein or in any other Loan Document if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (A) if a Benchmark Replacement is determined in accordance with clause (a)(i) or (a)(ii) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (B) if a Benchmark Replacement is determined in accordance with clause (a)(iii) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If an Unadjusted Benchmark Replacement is Daily Simple SOFR, all interest payments will be on a monthly basis.
(ii) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such
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Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that this clause (2) shall not be effective unless Administrative Agent has delivered to the Lenders and Lead Borrower a Term SOFR Notice. For the avoidance of doubt, Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may elect or not elect to do so in its sole discretion.
(b) Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c) Notices; Standards for Decisions and Determinations. Administrative Agent will promptly notify Lead Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.09(d) below, and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.09, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.09.
(d) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or USD LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Administrative Agent in its discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
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(e) Benchmark Unavailability Period. Upon Lead Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, Lead Borrower may revoke any request for a Borrowing of, conversion to or continuation of LIBOR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, Lead Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
(f) London Interbank Offered Rate Benchmark Transition Event. On March 5, 2021, the IBA, the administrator of the London interbank offered rate, and the FCA, the regulatory supervisor of the IBA, made Announcements that the final publication or representativeness date for Dollars for (i) 1-week and 2-month London interbank offered rate tenor settings will be December 31, 2021, and (ii) overnight, 1-month, 3-month, 6-month and 12-month London interbank offered rate tenor settings will be June 30, 2023. No successor administrator for the IBA was identified in such Announcements. The parties hereto agree and acknowledge that the Announcements resulted in the occurrence of a Benchmark Transition Event with respect to the London interbank offered rate pursuant to the terms of this Agreement and that any obligation of Administrative Agent to notify any parties of such Benchmark Transition Event pursuant to Section 3.09(c) shall be deemed satisfied.
Conditions Precedent to Credit Extensions
. The obligation of each Lender to make its initial Credit Extension hereunder on or after the Fifth Restatement Effective Date is subject to satisfaction of the following conditions precedent except as otherwise agreed between the Borrowers and the Administrative Agent:
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. The obligation of each Lender to honor any Request for Credit Extension (excluding a Committed LoanSOFR Notice requesting only a conversion of Loans to the other Type, or a continuation of LIBORSOFR Loans) and of the Issuing Bank to issue each Letter of Credit is subject to the following conditions precedent:
Each Request for Credit Extension (other than a Committed LoanSOFR Notice requesting only a conversion of Loans to the other Type or a continuation of LIBORSOFR Loans) submitted by the Lead Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension and that after giving effect to such Credit Extension the Borrowers shall continue to be in compliance with the Borrowing Base.
Representations and Warranties
Holdings and the Borrowers represent and warrant to the Agents and the Lenders that:
. Each Loan Party and each of its Restricted Subsidiaries (a) is a Person duly organized or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to
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which it is a party, (c) is duly qualified and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, (d) is in compliance with all Laws, orders, writs, injunctions and orders and (e) has all requisite governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except in each case referred to in clause (c), (d) or (e), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transactions (to the extent of such Person’s involvement therein), are within such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents, (b) conflict with or result in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 7.01), or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any material Law; except with respect to any conflict, breach or contravention or payment (but not creation of Liens) referred to in clause (b)(i), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.
. No material approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the consummation of the Transactions, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (i) filings necessary to perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect and (iii) those approvals, consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could not reasonably be expected to have a Material Adverse Effect.
. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party and each Guarantor that is party thereto. This Agreement and each other Loan Document constitutes a legal, valid and binding obligation of such Loan Party or Guarantor, as the case may be, enforceable against each Loan Party and each Guarantor that is party thereto in
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accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws, by general principles of equity and by a covenant of good faith and fair dealing.
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. Except as set forth in Schedule 5.06, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of Holdings or the Borrowers, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against Holdings, the Borrowers or any of their respective Restricted Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
. Neither Holdings, any Borrower nor any Subsidiary is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
. Each Loan Party and each of its Restricted Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, or easements or other limited property interests
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in, all Real Property necessary in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes and Permitted Liens and except where the failure to have such title or other interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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. Except as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each of their Restricted Subsidiaries have timely filed all federal, state, provincial, foreign and other tax returns and reports required to be filed, and have timely paid all federal, state, provincial, foreign and other taxes (including in its capacity as a withholding agent), assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.
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. As of the Fifth Restatement Effective Date, no Loan Party has any Subsidiaries other than those specifically disclosed in Schedule 5.12, and all of the outstanding Equity Interests in the Borrowers and the Material Subsidiaries have been validly issued, are fully paid and nonassessable and all such Equity Interests owned by any Loan Party are owned free and clear of all Liens except (i) those created under the Collateral Documents and (ii) any nonconsensual Lien that is permitted under Section 7.01. As of the Fifth Restatement Effective Date, Schedule 5.12 (a) sets forth the name and jurisdiction of each Subsidiary, (b) sets forth the ownership interest of Holdings, the Borrowers and any of their Subsidiaries in each of their Subsidiaries, including the percentage of such ownership and (c) identifies each Person the Equity Interests of which are required to be pledged on the Fifth Restatement Effective Date pursuant to the Collateral and Guarantee Requirement.
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. No report, financial statement, certificate or other written information furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information and pro forma financial information, the Borrowers represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it being understood that such projections may vary from actual results and that such variances may be material. The information provided in any Beneficial Ownership Certification delivered under this Agreement shall be true and correct in all respects on the date on which such Beneficial Ownership Certification is delivered.
. On the Fifth Restatement Effective Date, after giving effect to the Transactions, Holdings and its Subsidiaries, on a consolidated basis, are Solvent.
. The Obligations are (a) “Senior Debt”, “Senior Indebtedness”, “Guarantor Senior Debt” or “Senior Secured Financing” (or any comparable term) and “Designated Senior Debt”, “Designated Senior Indenture”, “Designated Guaranteed Secured Debt”, or “Designated Senior Financing” (or any comparable term) under, and as defined in, any Junior Financing Documentation and (b) “First Lien Debt” (or any comparable term) under, and as defined in, any intercreditor or subordination agreement relating to any Additional Permitted Debt (in cases where the Collateral Agent’s Liens arising under this Agreement and the other Loan Documents are intended to be senior to the Liens securing such Additional Permitted Debt, as contemplated in Section 6.18(c)).
. The Collateral Documents create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral described therein as security for the Obligations to the extent that a legal, valid, binding and enforceable security interest in such Collateral may be created under any applicable Law, including, without limitation, the applicable Uniform Commercial Code and PPSA, which security interest, upon the
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filing of financing statements or the obtaining of “control”, in each case, as applicable, with respect to the relevant Collateral as required under the applicable Uniform Commercial Code, PPSA or Canadian securities transfer legislation, will constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Borrowers and each Guarantor thereunder in such Collateral, in each case prior and superior in right to any other Person (other than Permitted Liens), in each case to the extent that a security interest may be perfected by the filing of a financing statement under the applicable Uniform Commercial Code or PPSA, or by obtaining “control”.
. The monetary Obligations hereunder rank at least pari passu in right of payment (to the fullest extent permitted by law) with all other senior indebtedness of the Borrowers; provided that the prior secured claims of any other senior indebtedness solely with respect to particular collateral will not be deemed to result in such Obligations not being at least pari passu in right of payment to such other senior indebtedness.
. No Loan Party or any of its Subsidiaries is in violation of any Sanctions. No Loan Party nor any of its Subsidiaries nor, to the knowledge of such Loan Party, any director, officer, employee, agent or Affiliate of such Loan Party or such Subsidiary (a) is a Sanctioned Person or a Sanctioned Entity, (b) has any assets located in Sanctioned Entities, or (c) derives revenues from investments in, or transactions with Sanctioned Persons or Sanctioned Entities. Each of the Loan Parties and its Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance with all Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws. Each of the Loan Parties and its Subsidiaries, and to the knowledge of each such Loan Party, each director, officer, employee, agent and Affiliate of each such Loan Party and each such Subsidiary, is in compliance (i) with all Sanctions, and (ii) in all material respects, with all Anti-Corruption Laws and Anti-Money Laundering Laws. No proceeds of any Loan made or Letter of Credit issued hereunder will be used to fund any operations in, finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Entity, or otherwise used in any manner that would result in a violation of any Sanction, Anti-Corruption Law or Anti-Money Laundering Law by any Person (including any Lender, Bank Product Provider, or other individual or entity participating in any transaction). Any other term or provision of this Agreement to the contrary notwithstanding, nothing in this Agreement shall require any Loan Party organized under the laws of Canada or its provinces or territories or any of its Canadian Subsidiaries or any director, officer, employee, agent or Affiliate of any such Loan Party or any of its Canadian Subsidiaries that are registered or incorporated under the laws of Canada or a province or territory thereof to commit an act or omission that contravenes the Foreign Extraterritorial Measures (United States) Order, 1992.
. Each Borrower Party (to the extent that its business activities would require it to do so under applicable law) is a licensed stamping agent and licensed distributor of Tobacco Inventory in each jurisdiction in which the conduct or nature of its business activities requires that it be a licensed stamping agent and licensed distributor of Tobacco Inventory, as applicable.
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. Each of the Lead Borrower and each Caribbean Party represents and warrants to the Administrative Agent and the Lenders that:
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Affirmative Covenants
Until (i) the Commitments have expired or been terminated, (ii) the principal of and interest on each Loan and all fees and other Obligations (other than contingent indemnity obligations with respect to then unasserted claims and the Other Liabilities) shall have been paid in full, (iii) all Letters of Credit shall have expired or terminated (or been cash collateralized or backstopped in a manner reasonably satisfactory to the Issuing Bank) and (iv) all Letter of Credit Outstandings have been reduced to zero (or cash collateralized or backstopped in a manner reasonably satisfactory to the Issuing Bank), Holdings and the Borrowers shall, and Holdings and the Borrowers shall cause (except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) each Restricted Subsidiary to:
. Deliver to the Administrative Agent for prompt further distribution to each Lender:
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Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 6.01 may be satisfied with respect to financial information of Holdings and its Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent of Holdings that holds all of the Equity Interests of Holdings or (B) Holdings’ (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of clauses (A) and (B), (i) to the extent such information relates to a parent of Holdings, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Holdings and the Restricted Subsidiaries on a standalone basis, on the other hand and (ii) to the extent such information is in lieu of information required to be provided under Section 6.01(a), such financial statements are accompanied by a report and opinion of Deloitte & Touche LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit.
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. Deliver to the Administrative Agent for prompt further distribution to each Lender:
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Documents required to be delivered pursuant to Section 6.01(a) or (b) or 6.02 (a), (b) or (c) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Lead Borrower posts such documents, or provides a link thereto on the Lead Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Lead Borrower’s behalf on SyndTrak or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written request by the Administrative Agent, the Lead Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by the Administrative Agent and (ii) the Lead Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Lead Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Each Lender shall be solely responsible for timely accessing posted documents or requesting
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delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents.
. Promptly after obtaining actual knowledge thereof, notify the Administrative Agent:
Each notice pursuant to this Section shall be accompanied by a written statement of a Responsible Officer of the Lead Borrower (x) that such notice is being delivered pursuant to Section 6.03(a), (b), (c),(d) or (e) (as applicable) and (y) setting forth details of the occurrence referred to therein and stating what action the Lead Borrower has taken and proposes to take with respect thereto.
. Pay, discharge or otherwise satisfy as the same shall become due and payable, all its obligations and liabilities in respect of taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, except, in each case, to the extent the failure to pay or discharge the same could not reasonably be expected to have a Material Adverse Effect, it being understood that neither Holdings, the Borrowers nor any of their respective Restricted Subsidiaries shall be required to pay any such tax, assessment, charge, levy
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or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP.
. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization and (b) take all reasonable action to maintain all rights, privileges (including its good standing), permits, licenses and franchises necessary or desirable in the normal conduct of its business, except in the case of clauses (a) and (b), (i) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect or (ii) pursuant to a transaction permitted by Section 7.04 or 7.05.
. Except if the failure to do so could not reasonably be expected to have a Material Adverse Effect, (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear excepted and casualty or condemnation excepted, and (b) make all necessary renewals, replacements, modifications, improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice.
. (a) Maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar businesses as Holdings, the Borrowers and the Restricted Subsidiaries) as are customarily carried under similar circumstances by such other Persons.
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. Comply in all respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, other than such orders, writs, injunctions and decrees as to which an appeal has been timely and properly taken in good faith, except if the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
. Maintain (a) proper books of record and account, in which entries that are full, true and correct in all material respects and are in conformity with GAAP consistently applied shall be made of all material financial transactions and matters involving the assets and business of Holdings, the Lead Borrower or any Restricted Subsidiary, as the case may be and (b) to the extent applicable, written records pertaining to any claims filed against Holdings, the Lead Borrower or any Restricted Subsidiary under PACA or under the Packers and Stockyards Act.
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provided that appraisals and field examinations of assets acquired in connection with a Permitted Acquisition shall not count toward the number of appraisals and field examinations specified above in this Section 6.10(b). With respect to Acquired Inventory and Acquired Accounts, as long as the Administrative Agent has received reasonable prior notice of a relevant Permitted Acquisition and
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the Borrower Parties reasonably cooperate (and cause the Person being acquired to reasonably cooperate) with the Administrative Agent, the Administrative Agent shall use commercially reasonable efforts to complete such due diligence and a related appraisal on or prior to such Person becoming a Borrower Party or the closing date of such Permitted Acquisition.
. At the Borrowers’ expense, take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
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Any of the provisions of the foregoing clauses (a) and (b), the terms of the Collateral and Guarantee Requirement, and the provisions of Section 6.13 to the contrary notwithstanding, (1) the requirements of the foregoing clauses (a) and (b) shall be satisfied with respect to the Core-Mark Acquired Companies on the Fifth Restatement Effective Date (except to the extent such requirements have been satisfied before such date) and (2) the Administrative Agent shall not accept delivery of any joinder to any Loan Document with respect to any Subsidiary of any Loan Party that is not a Loan Party, if such Subsidiary that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation unless such Subsidiary has delivered a Beneficial Ownership Certification in relation to such Subsidiary and the Administrative Agent and each Lender has completed its Patriot Act searches, OFAC/PEP searches and customary individual background checks for such Subsidiary, the results of which shall be satisfactory to the Administrative Agent and the Lenders.
. Except, in each case, to the extent that the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) comply, and take all commercially reasonable actions to cause any lessees and other Persons operating or occupying
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its properties to comply with all applicable Environmental Laws and Environmental Permits; (b) obtain and renew all Environmental Permits necessary for its operations and properties; and, (c) in each case to the extent required by applicable Environmental Laws, conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to address all Hazardous Materials at, on, under or emanating from any currently or formerly owned or operated property or facility, in accordance with the requirements of all applicable Environmental Laws.
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. Furnish to the Agents prompt written notice of any change in: (a) any Loan Party’s name; (b) the location of any Loan Party’s chief executive office, registered office or its principal place of business; (c) any Loan Party’s organizational structure or jurisdiction of incorporation or formation; or (d) any Loan Party’s Federal Taxpayer Identification Number (including its business number for Canada Revenue Agency or other purposes) or organizational identification number assigned to it by its jurisdiction of organization. The Loan Parties agree not to effect or permit any change referred to in the preceding sentence unless all filings, publications and registrations, have been made (or will be made in a timely fashion) under the Uniform Commercial Code, PPSA or other applicable Law that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected first priority security interest to the extent required under the Collateral Documents (subject only to Permitted Liens having priority under applicable Law) in all the Collateral for its own benefit and the benefit of the other Secured Parties.
. Cause, at their own expense, not less than one physical count of Inventory to be undertaken in each 12-month period (or alternatively, periodic cycle counts) in conjunction with the preparation of its annual audited financial statements, conducted in a manner, at the times and following such methodology as is, in each case, consistent with historical practice in effect immediately prior to the Fifth Restatement Effective Date or as otherwise may be reasonably satisfactory to the Agents. Following the completion of such Inventory count, and in any event by the next date required for the delivery of a Borrowing Base Certificate hereunder, the Borrowers shall deliver the results of such physical inventory to the Administrative Agent and shall post such results to the Loan Parties’ stock ledgers and general ledgers, as applicable.
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Each Loan Party will, and will cause each of its Subsidiaries to, comply (i) with all Sanctions, and (ii) in all material respects, with all Anti-Corruption Laws and Anti-Money Laundering Laws. Each of the Loan Parties and its Subsidiaries shall implement and maintain in effect policies and procedures designed to ensure compliance by the Loan Parties and their Subsidiaries and their respective directors, officers, employees, agents and Affiliates with Sanctions, Anti-Corruption Laws and Anti-Money Laundering Laws.
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Negative Covenants
Until (i) the Commitments have expired or been terminated, (ii) the principal of and interest on each Loan (including Swingline Loans) and all fees and other Obligations (other than contingent indemnity obligations with respect to then unasserted claims and the Other Liabilities) shall have been paid in full, (iii) all Letters of Credit shall have expired or terminated (or been cash collateralized or backstopped in a manner reasonably satisfactory to the Issuing Bank) and (iv) all Letter of Credit Outstandings have been reduced to zero (or cash collateralized or backstopped in a manner reasonably satisfactory to the Issuing Bank), neither Holdings nor any Borrower shall, nor shall any of them permit any of its Restricted Subsidiaries to, directly or indirectly:
. Create, incur, assume or suffer to exist any Lien upon any of their property, assets or revenues, whether now owned or hereafter acquired, other than the following (each of the following, a “Permitted Lien”):
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. Make or hold any Investments, except:
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provided that no Investment in an Unrestricted Subsidiary that would otherwise be permitted under this Section 7.02 shall be permitted hereunder (w) to the extent that any portion of such Investment is used to make any prepayments, redemptions, purchases, defeasances and other payments in respect of any Restricted Debt to the extent prohibited under Section 7.12, (x) if such Investment consists of a transfer of any property (other than Real Property or Rolling Stock) of the type subject to the Borrowing Base, (y) if the Pro Forma Excess Availability Condition (Certain Covenants) shall not have been satisfied with respect to such Investment or (z) any Event of Default exists or would result therefrom. For purposes of this Section 7.02, the term “Investment” shall include the acquisition of the Equity Interests of the owner/lessor under any Excluded Sale-Leaseback or the acquisition of the Real Property subject to such Excluded Sale-Leaseback.
. Create, incur, assume or suffer to exist any Indebtedness, except:
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For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, the Dollar Equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased.
For purposes of determining compliance with this Section 7.03, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (w) above, the Lead Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that (i) all Indebtedness outstanding under the Loan Documents will be deemed to have been incurred on such date in reliance only on the exception in clause (a) of Section 7.03, and (ii) all Additional Permitted Debt will be deemed to have been incurred on such date in reliance only on the exception set forth in Section 7.03(r).
The accrual of interest or dividends, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of
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additional Indebtedness or Disqualified Equity Interests shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 7.03.
. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
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. Make any Disposition, except:
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provided that any Disposition of any property pursuant to this Section 7.05 (except pursuant to Section 7.05(e) and (o) and except for Dispositions from a Loan Party to another Loan Party or from a Non-Loan Party to another Non-Loan Party or from a Non-Loan Party to a Loan Party), shall be for no less than the fair market value of such property at the time of such Disposition and, in the case of Accounts and Inventory, solely for cash consideration. To the extent any Collateral is Disposed of as expressly permitted by this Section 7.05 to any Person other than the Borrowers or any Restricted Subsidiary, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, and, if requested of the Administrative Agent, upon the certification by the Lead Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as applicable, shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
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. Declare or make, directly or indirectly, any Restricted Payment, except:
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provided, further that cancellation of Indebtedness owing to Holdings or any Borrower from members of management of Holdings or such Borrower, any of the Borrowers’ direct or indirect parent companies or any of the Borrowers’ Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrowers’ direct or indirect parent companies will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided, further that the value of any Equity Interests repurchased, retired or acquired pursuant to this clause (e) shall be determined based on the imputed per share (or interest) price of any such Equity Interest as of the Fifth Restatement Effective Date; provided, further that the aggregate amount of Restricted Payments made pursuant to this clause (e) shall not exceed $80,000,000 in any calendar year (including any amounts carried over) unless the Pro Forma Excess Availability Condition (Certain Covenants) shall have been satisfied with respect thereto.
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(1) 3.50% of Market Capitalization, if, on a Pro Forma Basis for the Test Period, the Consolidated Total Net Leverage Ratio is greater than 5.00 to 1.00;
(2) 4.75% of Market Capitalization, if, on a Pro Forma Basis for the Test Period after giving effect to the payment of any such Restricted Payment, the Consolidated Total Net Leverage Ratio is greater than 4.00 to 1.00 and less than or equal to 5.00 to 1.00;
(3) 7.50% of Market Capitalization, if, on a Pro Forma Basis for the Test Period after giving effect to the payment of any such Restricted Payment, the Consolidated Total Net Leverage Ratio is greater than 3.50 to 1.00 and less than or equal to 4.00 to 1.00; and
(4) an unlimited amount, if, on a Pro Forma Basis for the Test Period after giving effect to the payment of any such Restricted Payment, the Consolidated Total Net Leverage Ratio is less than or equal to 3.50 to 1.00;
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. Engage in any material line of business substantially different from those lines of business conducted by Holdings, the Borrowers and the Restricted Subsidiaries on the Fifth Restatement Effective Date or any business reasonably related or ancillary thereto or any business acquired as a result of Permitted Acquisition.
. Enter into any transaction of any kind with any Affiliate of Holdings or the Borrowers, whether or not in the ordinary course of business, other than (a) transactions between or among the Loan Parties or any entity that becomes a Loan Party as a result of such transaction or between or among Non-Loan Parties, including entities that become Restricted Subsidiaries as a result of such transaction, (b) transactions on terms not materially less favorable to Holdings, such Borrower or such Restricted Subsidiary as would be obtainable by Holdings, such Borrower or such Restricted Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, (c) the issuance of Equity Interests to any officer, director, employee or consultant of Holdings, the Borrowers or any of their respective Subsidiaries or any direct or indirect parent of Holdings or the Borrowers in connection with any Transaction, (d) [reserved], (e) equity issuances, repurchases, retirements or other acquisitions or retirements of Equity Interests by Holdings, the Borrowers or any of their respective Restricted Subsidiaries to any Permitted Holder or to any director, officer, employee or consultant of Holdings, any of its direct or indirect parent companies or any of its Restricted Subsidiaries, or as otherwise permitted under Section 7.06, (f) loans and other transactions by Holdings, the Borrowers and the Subsidiaries to the extent permitted under this Article VII, (g) employment and severance arrangements between Holdings, the Borrowers and the Restricted Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements, (h) payments by Holdings, the Borrowers (and any direct or indirect parent thereof) and the Restricted Subsidiaries pursuant to the tax sharing agreements among Holdings, the Borrowers (and any such direct or indirect parent thereof) and the Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of Holdings, the Borrowers and the Restricted Subsidiaries, (i) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, current and former directors, officers, employees and consultants of Holdings, the Borrowers and the Restricted Subsidiaries or any direct or indirect parent of Holdings and the Borrowers in the ordinary course of business to the extent attributable to the ownership or operation of Holdings, the Borrowers and the Restricted Subsidiaries, (j) transactions pursuant to permitted agreements in existence on the Fifth Restatement Effective Date and set forth on Schedule 7.08 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in any material respect, (k) dividends, redemptions, repurchases and other Restricted Payments permitted under Section 7.06, (l) customary payments by Holdings, the Borrowers and any Restricted Subsidiaries made for any financial advisory, financing, underwriting or placement services or in respect of
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other investment banking activities (including in connection with acquisitions or divestitures), which payments are approved by the majority of the members of the board of directors or a majority of the disinterested members of the board of directors of Holdings, the Lead Borrower or the entity making such payment in good faith, (m) the existence of, or the performance by any of Holdings, the Borrowers or any of their respective Restricted Subsidiaries of its obligations under the terms of any stockholders agreement (including any registration rights agreement or purchase agreement related thereto) to which it is a party as of the Fifth Restatement Effective Date and any similar agreements which it may enter into thereafter; provided that the existence of, or the performance by Holdings, the Borrowers or any of their respective Restricted Subsidiaries of obligations under any future amendment to any such existing agreement or under any similar agreement entered into after the Fifth Restatement Effective Date shall be permitted by this clause (m) only to the extent that the terms of any such amendment or new agreement are not otherwise disadvantageous to the Lenders when taken as a whole, and (n) the transactions comprising Permitted Receivables Financings.
. Enter into or permit to exist any Contractual Obligation (other than this Agreement, any other Loan Document, or any Additional Permitted Debt Documents) that limits the ability of (a) any Restricted Subsidiary that is not a Loan Party to make Restricted Payments to any Loan Party or (b) any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person for the benefit of the Lenders with respect to this Agreement and the Obligations or under the other Loan Documents; provided that the foregoing clauses (a) and (b) shall not apply to Contractual Obligations which (i) (x) exist on the Fifth Restatement Effective Date and (to the extent not otherwise permitted by this Section 7.09) are listed on Schedule 7.09 hereto and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness, are set forth in any agreement evidencing any permitted renewal, extension or refinancing of such Indebtedness so long as such renewal, extension or refinancing does not expand the scope of such Contractual Obligation, (ii) are binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary or at the time such Restricted Subsidiary merges or amalgamates with or into the Lead Borrower or any of its Restricted Subsidiaries or is assumed in connection with the acquisition of assets from such Person, so long as such Contractual Obligations were not entered into in contemplation of such Person becoming a Restricted Subsidiary; provided, further that this clause (ii) shall not apply to Contractual Obligations that are binding on a Person that becomes a Restricted Subsidiary pursuant to Section 7.15, (iii) represent Indebtedness of a Restricted Subsidiary which is not a Loan Party which is permitted by Section 7.03, (iv) arise in connection with any Lien permitted by Section 7.01(t) or any Disposition permitted by Section 7.05, (v) are customary provisions in joint venture agreements and other similar agreements or written arrangements applicable to joint ventures permitted under Section 7.02 and applicable solely to such joint venture entered into in the ordinary course of business, (vi) are negative pledges and restrictions on Liens in favor of any holder of Indebtedness permitted under Section 7.03 but solely to the extent any negative pledge relates to the property financed by or the subject of such Indebtedness (and excluding in any event any Indebtedness constituting any Junior Financing) and the proceeds and products thereof, (vii) are customary restrictions in leases, subleases, licenses, asset sale or similar agreements, including with respect to intellectual property and other similar agreements, otherwise permitted hereby so long as such restrictions relate to the assets subject thereto, (viii) comprise restrictions imposed by
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any agreement relating to secured Indebtedness permitted pursuant to Section 7.03(e), 7.03(g), 7.03(n) or 7.03(u) to the extent that such restrictions apply only to the property or assets securing such Indebtedness or, in the case of Indebtedness incurred pursuant to Section 7.03(g) only, to the Restricted Subsidiaries incurring or guaranteeing such Indebtedness, (ix) are customary provisions restricting subletting or assignment of any lease governing a leasehold interest of any Restricted Subsidiary, (x) are customary provisions restricting assignment of any agreement entered into in the ordinary course of business, (xi) are restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business, (xii) arise in connection with cash or other deposits permitted under Section 7.01, (xiii) are obligations under any Swap Contracts or other derivative instruments entered into for the purpose of hedging interest rate or currency risks in effect on the Fifth Restatement Effective Date, or (xiv) are (A) applicable to any Special Purpose Receivables Subsidiary in connection with any Permitted Receivables Financing, (B) applicable only to the Accounts (and Related Rights and Property) which are owing by the Designated Account Debtor associated with such Permitted Receivables Financing, or (C) are customary in the context of a Permitted Receivables Financing and have been approved by the Administrative Agent (in its commercially reasonable discretion exercised in good faith).
. (a) Use the proceeds of any Borrowing or Letter of Credit, whether directly or indirectly, for any purpose other than (i) to undertake the Transactions and to pay Transaction Expenses, (ii) to provide working capital from time to time for the Borrowers and their respective subsidiaries or (iii) for other lawful general corporate purposes (including, without limitation, for Permitted Acquisitions, permitted Restricted Payments, permitted Investments and permitted payments with respect to Indebtedness) or (b) request any Borrowing or Letter of Credit, and the Loan Parties shall not use, and shall not permit their Subsidiaries to use any part of the proceeds of the any Borrowing or Letter of Credit (x) to purchase or carry any such Margin Stock or to extend credit to others for the purpose of purchasing or carrying any such Margin Stock or for any purpose that violates the provisions of Regulation T, U or X of the Board of Governors, (y) directly or to Lead Borrower’s knowledge after due care and inquiry, indirectly, to make any payments to a Sanctioned Entity or a Sanctioned Person, to fund any investments, loans or contributions in, or otherwise make such proceeds available to, a Sanctioned Entity or a Sanctioned Person, to fund any operations, activities or business of a Sanctioned Entity or a Sanctioned Person, or in any other manner that would result in a violation of Sanctions by any Person, or (z) directly or to Lead Borrower’s knowledge after due care and inquiry, indirectly, in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.
. Make any change in fiscal year; provided, however, that Holdings and any Borrower may, upon written notice to the Administrative Agent, change their fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, Holdings and the Borrowers and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary to reflect such change in fiscal year.
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. Holdings shall not (a) incur, directly or indirectly, any Indebtedness or any other obligation or liability whatsoever, other than (i) Indebtedness and obligations under this Agreement and the other Loan Documents and (ii) Indebtedness represented by Holdings’ guarantee of obligations under any Additional Permitted Debt Documents, the Excluded Sale-Leasebacks, any documents relating to any Permitted Refinancing of the foregoing and operating leases of its Subsidiaries, (b) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired by it other than Liens permitted by Section 7.01 (but only to the extent securing obligations or liabilities which Holdings is not prohibited from incurring or owing under the terms of this Agreement and the other Loan Documents), or (c) engage in any business or activity or own any assets (other than (i) those incidental to its ownership of the Equity Interests of the Borrowers and any Captive Insurance Subsidiary, (ii) holding the Subordinated Contribution Note, (iii) maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance), (iv) the performance of its obligations with respect to the Loan Documents and any other Indebtedness permitted to be incurred by Holdings under this Agreement or the other Loan Documents, (v) to the extent not otherwise prohibited by the terms of this Agreement or the other Loan Documents, financing activities relating to the issuance of its securities, the declaration and payment of dividends, the making of contributions to the capital of the Borrower, and guaranteeing the obligations of the Borrowers, (vi) participating in tax, accounting and other administrative matters as a member of the consolidated group of Holdings and the Borrower, (vii) holding any cash incidental to any activities permitted under this Section 7.13, (viii) providing indemnification to officers, managers and directors and (ix) any activities incidental to the foregoing). Holdings shall not incur any Liens on Equity Interests of the Lead Borrower other than those permitted by Sections 7.01(a) and (ee).
. After the occurrence and during the continuance of a Trigger Event (Cash Dominion), use the funds on deposit in the Designated Account for any purposes other than (a) the payment of operating expenses incurred by the Loan Parties in the ordinary course of business (including payments of interest when due on account of any Additional Permitted Debt), and (b) for such other ordinary course purposes as the Loan Parties deem appropriate.
. Designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary, unless such designation is made by the board of directors of Holdings; provided that no Subsidiary shall be designated an Unrestricted Subsidiary if (i) a Default shall exist or would result therefrom, (ii) such Subsidiary is a Borrower or such Subsidiary owns any property subject to the Borrowing Base, or (iii) such Subsidiary continues to be a guarantor in respect of any Additional Permitted Debt, any Junior Financing, or any Additional Loan or any Permitted Refinancing of the foregoing. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrowers therein at the date of
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designation in an amount equal to the net book value of the Lead Borrower’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any Indebtedness or Liens of such Subsidiary existing at such time.
Events of Default and Remedies
. Any of the following events referred to in any of clauses (a) through (m) inclusive of this Section 8.01 shall constitute an “Event of Default”:
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. If any Event of Default occurs and is continuing, the Administrative Agent may and, at the request of the Required Lenders, shall take any or all of the following actions:
provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrowers under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans (including Swingline Loans) and any obligation of the Issuing Bank to issue Letters of Credit shall automatically terminate, the unpaid principal amount of all outstanding Loans (including Swingline Loans) and all interest and other amounts as aforesaid shall automatically become due and payable and the obligations of the Borrowers to cash collateralize the amount of the Letter of Credit Outstandings as aforesaid shall automatically become effective, in each case, without further act of the Administrative Agent or any Lender.
. Solely for the purpose of determining whether a Default has occurred under clause (f) or (g) of Section 8.01, any reference in any such clause to any Restricted Subsidiary or Loan Party shall be deemed not to include any Restricted Subsidiary affected by any event or circumstances referred to in any such clause that is not a Material Subsidiary (it being agreed that all Restricted Subsidiaries affected by any event or circumstance referred to in any such clause shall be considered together, as a single consolidated Restricted Subsidiary, for purposes of determining whether the condition specified above is satisfied).
. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:
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First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 10.04 and amounts payable under Article III) payable to the Administrative Agent and the Collateral Agent, the Swingline Lender and the Issuing Banks, in their respective capacities as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including Attorney Costs payable under Section 10.05 and amounts payable under Article III, but other than fees owed to Tranche A-1 Lenders), ratably among the Lenders in proportion to the amounts described in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans (other than Tranche A-1 Loans), ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Swingline Loans, payable to the Swingline Lender, in its capacity as such;
Fifth, to payment of that portion of the Obligations constituting unpaid principal of the Loans (other than Tranche A-1 Loans) and any amounts due and owing under Secured Hedge Agreements (including the Swap Termination Value under Secured Hedge Agreements), ratably among the Secured Parties in proportion to the respective amounts described in this clause Fifth payable to them;
Sixth, to the Administrative Agent, to be held by the Administrative Agent, for the ratable benefit of the Issuing Bank and the Tranche A Lenders as cash collateral in an amount up to 101.5% of the then Stated Amount of Letters of Credit (other than those in which the Tranche A-1 Lenders participate) until paid in full;
Seventh, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Tranche A-1 Lenders (including Attorney Costs payable under Section 10.05 and amounts payable under Article III), ratably among the Tranche A-1 Lenders in proportion to the amounts described in this clause Seventh payable to them;
Eighth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Tranche A-1 Loans, ratably among the Tranche A-1 Lenders in proportion to the respective amounts described in this clause Eighth payable to them;
Ninth, to payment of that portion of the Obligations constituting unpaid principal of the Tranche A-1 Loans, ratably among the Tranche A-1 Lenders in proportion to the respective amounts described in this clause Ninth payable to them;
Tenth, to pay outstanding Obligations with respect to Cash Management Services furnished to any Loan Party by the Secured Parties; and
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Eleventh, to the payment of all other Obligations (including any other outstanding Other Liabilities) that are due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by Law.
Agents
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. The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document (including for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents or of exercising any rights and remedies thereunder) by or through agents, employees or attorneys-in-fact, such sub-agents as shall be deemed necessary by the Administrative Agent and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or sub-agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct (as determined in the final judgment of a court of competent jurisdiction).
. No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein), or (b) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Loan Party, any Guarantor or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or the perfection or priority of any Lien or security interest created or purported to be created under the Collateral Documents, or for any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or participant to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate thereof.
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. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or the Borrowers referring to this Agreement, describing such Default and stating that such notice is a “notice of default”. The Administrative Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to any Event of Default as may be directed by the Required Lenders in accordance with Article VIII; provided that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default as it shall deem advisable or in the best interest of the Lenders.
. Each Lender acknowledges that no Agent-Related Person has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Lender represents to each Agent that it has, independently and without reliance upon any Agent-Related Person and based on such documents and
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information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrowers and the other Loan Parties hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Borrowers and the other Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by any Agent herein, such Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent-Related Person.
. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), on an Aggregate Pro Rata Share basis, and hold harmless each Agent-Related Person from and against any and all Indemnified Liabilities incurred by it; provided that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities resulting from such Agent-Related Person’s own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction; provided that no action taken in accordance with the directions of the Required Lenders (or such other number or percentage of the Lenders as shall be required by the Loan Documents) shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 9.07. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Liabilities, this Section 9.07 applies whether any such investigation, litigation or proceeding is brought by any Lender or any other Person. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its Aggregate Pro Rata Share of any costs or out-of-pocket expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Borrowers, provided that such reimbursement by the Lenders shall not affect the Borrowers’ continuing reimbursement obligations with respect thereto. The undertaking in this Section 9.07 shall survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent.
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. The Administrative Agent and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with each of the Loan Parties, the Guarantors and their respective Affiliates as though the Administrative Agent were not the Administrative Agent hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party, any Guarantor or any of their Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party, such Guarantor or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. With respect to its Loans, the Administrative Agent shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” include the Administrative Agent in its individual capacity.
. The Administrative Agent may resign as the Administrative Agent upon 30 days’ notice to the Lenders and the Borrowers. If the Administrative Agent resigns under this Agreement, the Required ▇▇▇▇▇▇▇ shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be consented to by the Borrowers at all times other than during the existence of an Event of Default under Section 8.01(f) or (g) (which consent of the Borrowers shall not be unreasonably withheld or delayed). If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and the Borrowers, a successor agent from among the Lenders. Upon the acceptance of its appointment as successor agent ▇▇▇▇▇▇▇▇▇, the Person acting as such successor agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent”, shall mean such successor administrative agent and/or supplemental administrative agent, as the case may be, and the retiring Administrative Agent’s appointment, powers and duties as the Administrative Agent shall be terminated. After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement. If no successor agent has accepted appointment as the Administrative Agent by the date which is 30 days following the retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required ▇▇▇▇▇▇▇ appoint a successor agent as provided for above. Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor and upon the execution and filing or recording of such financing statements, or amendments thereto, and such amendments or supplements to the Mortgages, and such other instruments or notices, as may be necessary or desirable, or as the Required Lenders may request, in order to (a) continue the perfection of the Liens granted or purported to be granted by the Collateral Documents or (b) otherwise ensure that the Collateral and Guarantee Requirement is satisfied, the Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges, and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents. After the retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Article IX shall continue
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in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent.
. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
. The Lenders irrevocably agree:
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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Administrative Agent will promptly (and each Lender irrevocably authorizes the Administrative Agent to), at the Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to evidence the release of such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.11.
. None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement or any other Loan Document as a “syndication agent”, “documentation agent”, “managing agent”, “joint bookrunner”, “lead arranger” or “joint lead arranger” shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
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. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. If the Internal Revenue Service or any other authority of the United States or other jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any interest, additions to tax or penalties thereto, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses.
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.
By signing this Agreement, each Lender (and with respect to clause (a), each Secured Party):
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.
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For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 9.17(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 9.17(a) or on whether or not an Erroneous Payment has been made.
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Each party’s obligations, agreements and waivers under this Section 9.17 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Secured Party, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations and / or Secured Obligations (or any portion thereof) under any Loan Document.
Miscellaneous
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provided, further that (A) no amendment, waiver or consent shall, unless in writing and signed by each Issuing Bank in addition to the Lenders required above, affect the rights or duties of the Issuing Bank under this Agreement or any Letter of Credit application relating to any Letter of Credit issued or to be issued by it; (B) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement; (C) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent under this Agreement or any other Loan Document; and (D) Section 10.07(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other modification. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of the Lenders).
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All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of Section 10.02(c)), when delivered; provided that notices and other communications to the Administrative Agent, the Collateral Agent, the Issuing Bank, and the Swingline Lender pursuant to Article II shall not be effective until actually received by such Person. In no event shall a voice mail message be effective as a notice, communication or confirmation hereunder.
. Except as otherwise specifically provided herein, each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. No failure by any Lender or the Agents to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law.
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. The Borrowers agree (a) to pay or reimburse (i) the Administrative Agent, the Collateral Agent and ▇▇▇▇▇ Fargo, in its capacity as a joint lead arranger, for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the preparation, negotiation, syndication and execution of this Agreement and the other Loan Documents, and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including (x) all Attorney Costs of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, and one local and foreign counsel in each relevant jurisdiction and (y) outside consultants for the Agents consisting of one inventory appraisal firm, one real estate appraisal firm, and one field examination firm, in each case in accordance with Section 6.10(b), and (ii) the Issuing Bank for all reasonable out-of-pocket expenses incurred in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (b) to pay or reimburse the Administrative Agent, the Collateral Agent, the Swingline Lender, the Issuing Bank and each Lender for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all Attorney Costs of counsel to the Agents and outside consultants for the Agents (including, without limitation, inventory appraisal firms, real estate appraisal firms and field examination firms)). The foregoing costs and expenses shall include all reasonable search, filing, recording and title insurance charges and fees related thereto, and other (reasonable, in the case of Section 10.04(a)) and documented out-of-pocket expenses incurred by the Agents. The agreements in this Section 10.04 shall survive the termination of the Aggregate Commitments and repayment of all other Obligations. All amounts due under this Section 10.04 shall be paid within ten Business Days of receipt by the Lead Borrower of an invoice relating thereto setting forth such expenses in reasonable detail. If any Loan Party or Guarantor fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party or such Guarantor by the Administrative Agent in its sole discretion.
. Whether or not the transactions contemplated hereby are consummated, the Borrowers shall indemnify and hold harmless each Agent-Related Person, each Lender and their respective Affiliates, directors, officers, employees, agents, trustees and investment advisors (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by the Borrowers, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to the Borrowers, any
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Subsidiary or any other Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (x) the gross negligence, fraud, bad faith or willful misconduct of such Indemnitee or of any affiliate, director, officer, employee or agent of such Indemnitee, (y) a material breach of the Loan Documents by such Indemnitee or of any affiliate, director, officer, employee or agent of such Indemnitee or (z) any dispute among Indemnitees other than claims against any Indemnitee in its capacity or in fulfilling its role as an agent or arranger or any other similar role hereunder and other than any claims arising out of any act or omission of the Borrowers or their affiliates. No Indemnitee shall be liable for any damages arising from the use by others of any information or other materials obtained through the Platform in connection with this Agreement, nor shall any Indemnitee or any Loan Party have any liability for any special, punitive, indirect or consequential damages relating to this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Fifth Restatement Effective Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 10.05 applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section 10.05 shall be paid within ten Business Days after demand therefor; provided, however, that such Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee was not entitled to indemnification or contribution rights with respect to such payment pursuant to the express terms of this Section 10.05. The agreements in this Section 10.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
. To the extent that any payment by or on behalf of the Borrowers is made to any Agent or any Lender, or any Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by any Agent, plus interest thereon
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from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate.
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. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information and to not use or disclose such information, except that Information may be disclosed (a) to its Affiliates and its and its Affiliates’ directors, officers, employees, trustees, investment advisors and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any Governmental Authority; (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) subject to an agreement containing provisions at least as restrictive as those of this Section 10.08 (or as may otherwise be reasonably acceptable to the Lead Borrower), to any pledgee referred to in Section 10.07(g), counterparty to a Swap Contract or to any swap or derivative transaction relating to the Borrowers and their obligations, Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement; (f) with the written consent of the Lead Borrower; (g) to the extent such Information becomes publicly available other than as a result of a breach of this Section 10.08; (h) to any Governmental Authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender; (i) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Lender); or (j) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder. In addition, the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Borrowings. For the purposes of this Section 10.08, “Information” means all information received from any Loan Party or its Affiliates or its Affiliates’ directors, officers, employees, trustees, investment advisors or agents, relating to Holdings, the Borrowers or any of their subsidiaries or its business, other than any such
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information that is publicly available to any Agent or any Lender prior to disclosure by any Loan Party other than as a result of a breach of this Section 10.08.
Each Borrower Party agrees that the Administrative Agent may make materials or information provided by or on behalf of Holdings and its Subsidiaries hereunder (collectively, “Borrower Materials”) available to the Lenders by posting the communications on IntraLinks, SyndTrak, or a substantially similar secure electronic transmission system (the “Platform”). The Platform is provided “as is” and “as available.” The Administrative Agent does not warrant the accuracy or completeness of the Borrower Materials or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Administrative Agent in connection with the Borrower Materials or the Platform. Each of Holdings and the Borrowers (and each other Loan Party by virtue of its execution and delivery of the Guaranty) further agrees that certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Lead Borrower shall be deemed to have authorized Agent and its Affiliates and the Lenders to treat Borrower Materials marked “PUBLIC” or otherwise at any time filed with the SEC as not containing any material non-public information with respect to the Loan Parties or their securities for purposes of United States federal and state securities laws. All Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor” (or another similar term). The Administrative Agent and its Affiliates and the Lenders shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” or that are not at any time filed with the SEC as being suitable only for posting on a portion of the Platform not marked as “Public Investor” (or such other similar term).
. In addition to any rights and remedies of the Lenders provided by Law, upon the occurrence and during the continuance of any Event of Default, each Lender and its Affiliates and each Issuing Bank and its Affiliates is authorized at any time and from time to time, without prior notice to the Lead Borrower or any other Loan Party, any such notice being waived by the Lead Borrower (on its own behalf and on behalf of each Loan Party and its Subsidiaries) to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other Indebtedness at any time owing by, such Lender and its Affiliates or the Issuing Bank and its Affiliates, as the case may be, to or for the credit or the account of the respective Loan Parties and their Subsidiaries against any and all Obligations owing to such Lender and its Affiliates or the Issuing Bank and its Affiliates hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not such Agent or such Lender or Affiliate shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable deposit or Indebtedness; provided that, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.24 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
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Administrative Agent, the Issuing Banks, and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Notwithstanding anything to the contrary contained herein, no Lender or its Affiliates and no Issuing Bank or its Affiliates shall have a right to set off and apply any deposits held or other Indebtedness owing by such Lender or its Affiliates or the Issuing Bank or its Affiliates, as the case may be, to or for the credit or the account of any Subsidiary of a Loan Party which is not a “United States person” within the meaning of Section 7701(a)(30) of the Code unless such Subsidiary is not a direct or indirect subsidiary of the Borrowers. Each Lender and Issuing Bank agrees promptly to notify the Lead Borrower and the Administrative Agent after any such set off and application made by such Lender or Issuing Bank, as the case may be; provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the Administrative Agent, each Lender and each Issuing Bank under this Section 10.09 are in addition to other rights and remedies (including other rights of setoff) that the Administrative Agent, such Lender and the Issuing Bank may have.
. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Lead Borrower. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
. This Agreement and each other Loan Document may be executed by means of (a) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. The Administrative Agent reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Agreement or any other Loan Document. This Agreement and each other Loan Document may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument. Delivery of an executed counterpart of a signature page of this Agreement or any other Loan Document as set forth herein will be as effective as delivery of a manually executed counterpart of the Agreement or such other Loan Document, as applicable. Each of the parties hereto represents and warrants to the other parties that it has the corporate capacity and authority to execute the Agreement and each other Loan
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Document through electronic means and there are no restrictions for doing so in that party’s constitutive documents.
. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Agents or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 10.17 WITH ANY COURT AS WRITTEN
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EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
. This Agreement shall become effective when it shall have been executed by the Borrowers and Holdings and the Administrative Agent shall have been notified by each Lender, Swingline Lender and Issuing Bank that each such Lender, Swingline Lender and Issuing Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrowers, each Agent and each Lender and their respective successors and assigns, except that the Borrowers shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by Section 7.04.
. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrowers in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable Law).
. Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents or any of the Secured Hedge Agreements or other Swap Contracts (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures, with respect to any Collateral or any other property of any such Loan Party, without the prior written consent of the Administrative Agent. The provision of this Section 10.20 are for the sole benefit of the Lenders and shall not afford any right to, or constitute a defense available to, any Loan Party.
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. The Borrowers agree that promptly following request by the Administrative Agent it shall cause each Material Foreign Subsidiary or for whose account a Letter of Credit is issued to appoint and maintain an agent reasonably satisfactory to the Administrative Agent to receive service of process in New York City on behalf of such Material Foreign Subsidiary.
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. This Agreement constitutes an amendment and restatement of the Existing Credit Agreement, as amended, effective from and after the Fifth Restatement Effective Date. It is the express intent of the parties to this Agreement that (A) the execution and delivery of this Agreement not constitute a novation or extinguishment of any indebtedness or other obligations owing to the Lenders or the Administrative Agent under the Existing Credit Agreement but that such indebtedness and other obligations under the Existing Credit Agreement shall continue, uninterrupted, but on the amended and restated terms set forth in this Agreement and, as applicable, the other Loan Documents; (B) this Agreement does not supersede the Existing Credit Agreement but, instead, amends and restates the Existing Credit Agreement on the terms set forth herein; (C) the execution and delivery of any amendment to, or amendment and restatement of, any Collateral Document executed or delivered in connection with the Existing Credit Agreement not constitute a novation or extinguishment of any security interest or Lien created under such Collateral Document; and (D) all security interests in and Liens on the Collateral granted under any Collateral Document executed or delivered in connection with the Existing Credit Agreement shall, upon the execution and delivery of this Agreement, continue, uninterrupted, to secure the Loan Parties’ indebtedness and obligations under the Loan Documents (as applicable) on the terms set forth in the such Collateral Document or, as applicable, any amendment to or amendment and restatement of such Collateral Document executed or delivered in connection with this Agreement). On the Fifth Restatement Effective Date, the credit facilities described in the Existing Credit Agreement, as amended, shall be amended, supplemented, modified and restated in their entirety by the corresponding credit facilities described herein, and all loans and other obligations of the Borrowers and the obligations of the other Loan Parties outstanding or existing as of such date under the Existing Credit Agreement are and shall be deemed to be loans and obligations outstanding under the corresponding facilities described herein, without any further action by any Person, except that the Administrative Agent shall make such transfers of funds as are necessary for the outstanding balance of such Revolving Loans, together with any Revolving Loans funded on the Fifth Restatement Effective Date, to comport with the respective Revolving Commitments of the Revolving Lenders hereunder (and each Revolving Lender party hereto agrees to cooperate with the Administrative Agent in determining and making such transfers and in accepting such transfers). In furtherance of (but not limited to) the foregoing, (i) all interest and fees of the Loan Parties under the Existing Credit Agreement shall accrue at the rates therefor under the Existing Credit Agreement and shall, on and after the Fifth Restatement Effective Date, accrue at the rates set forth in this Agreement and be payable on the dates set forth in this Agreement and (ii) all Letters of Credit issued pursuant to the Existing Credit Agreement and outstanding on the Fifth Restatement Effective Date are and shall be deemed to be Letters of Credit under this Agreement.
. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
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Section 10.28 Appointment for the Province of Quebec
[Continued on following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as of the date first written above.
PERFORMANCE FOOD GROUP, INC.
By:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Treasurer
PFGC, INC.
By:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Treasurer
[PFG—FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent, Swingline Lender, Issuing Bank and Lender
By:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
[PFG—FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
[LENDERS], as lender
By:
Name:
Title:
[PFG—FIFTH AMENDED AND RESTATED CREDIT AGREEMENT]
ANNEX B
[See attached.]
EXHIBIT M
FORM OF
SOFR NOTICE
▇▇▇▇▇ Fargo Bank, National Association, as Administrative Agent
MAC G0189-160
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Atlanta, Georgia 30328
United States of America
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇/Portfolio Manager
Ladies and Gentlemen:
Reference is made to the Fifth Amended and Restated Credit Agreement dated as of September 17, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among PERFORMANCE FOOD GROUP, INC., a Colorado corporation (the “Lead Borrower”), the other Borrowers from time to time party thereto, PFGC, INC., a Delaware corporation (“Holdings”), ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent and each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”). Capitalized terms used herein, but not specifically defined herein, shall have the meanings ascribed to them in the Credit Agreement.
This SOFR Notice represents Borrowers’ request to elect the SOFR Option with respect to outstanding Loans (select one):
A conversion of a Base Rate Loan to a SOFR Loan
A conversion of a SOFR Loan to a Base Rate Loan
A continuation of a SOFR Loan
To be made on the terms set forth below:
(A) Date of conversion or
continuation (which is a Business Day):
(B) A SOFR Loan in the amount of:
(C) With an Interest Period of:
This SOFR Notice further confirms Borrowers’ acceptance, for purposes of determining the rate of interest based on Adjusted Term SOFR as determined pursuant to the Credit Agreement.
Lead Borrower represents and warrants that (i) as of the date hereof, the representations and warranties of the Credit Parties in the Credit Agreement and in the other Loan Documents are 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) on and as of the date hereof, as though made on and as of such date (except to the extent that such representations and warranties relate solely 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)), (ii) each of the covenants and agreements contained in any Loan Document have been performed (to the extent required to be performed on or before the date hereof or each such effective date), and (iii) no Default or Event of Default has occurred and is continuing on the date hereof, nor will any thereof occur after giving effect to the request above.
[Continued on following page.]
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Dated: PERFORMANCE FOOD GROUP, INC., as Lead Borrower By: Name: Title:
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Acknowledged by: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent By: Name: Title: |
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