CREDIT AGREEMENT

Dated as of July 7, 2022,


among


WESTROCK COMPANY,

as Holdco,

WRKCO INC.,

as the Parent Borrower,

WESTROCK COMPANY OF CANADA CORP./COMPAGNIE WESTROCK DU CANADA CORP.,
as the Canadian Borrower,

WRK LUXEMBOURG S.À R.L.,

as the Luxembourg Borrower,

CERTAIN SUBSIDIARIES OF THE PARENT BORROWER FROM TIME TO TIME PARTY HERETO,
as Subsidiary Borrowers,

CERTAIN SUBSIDIARIES OF THE PARENT BORROWER FROM TIME TO TIME PARTY HERETO,
as Guarantors,

THE LENDERS PARTIES HERETO,

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and Multicurrency Agent

 

WELLS FARGO SECURITIES, LLC,
BOFA SECURITIES, INC.,
COBANK, ACB,
GOLDMAN SACHS BANK USA,
MIZUHO BANK, LTD.,
TD BANK, N.A.,
TRUIST SECURITIES, INC.,
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
ING BANK N.V., DUBLIN BRANCH,
JPMORGAN CHASE BANK, N.A.,
PNC CAPITAL MARKETS LLC,
REGIONS BANK,
SUMITOMO MITSUI BANKING CORPORATION,

THE BANK OF NOVA SCOTIA
and
U.S. BANK NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Book Runners


BANK OF AMERICA, N.A.,
as Syndication Agent


COBANK, ACB,
GOLDMAN SACHS BANK USA,
MIZUHO BANK, LTD.,
TD BANK, N.A.,
TRUIST BANK,
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
ING BANK N.V., DUBLIN BRANCH,
JPMORGAN CHASE BANK, N.A.,
PNC CAPITAL MARKETS LLC,
REGIONS BANK,
SUMITOMO MITSUI BANKING CORPORATION,
THE BANK OF NOVA SCOTIA
and
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agents

 

TABLE OF CONTENTS

 

ARTICLE I DEFINITIONS		Page
1.1	Definitions	1
1.2	Computation of Time Periods	48
1.3	Accounting Terms	49
1.4	Exchange Rates; Currency Equivalents	50
1.5	Terms Generally; Construction	50
1.6	Divisions.	50
1.7	Luxembourg Terms.	50
1.8	Rates.	51
1.9	Change of Currency.	52
ARTICLE II CREDIT FACILITY		52
2.1	U.S. Revolving Loans	52
2.2	Canadian Revolving Loans	54
2.3	Multicurrency Alternative Currency Revolving Loans	56
2.4	[Reserved]	59
2.5	[Reserved]	59
2.6	U.S. Swingline Loan Subfacility	59
2.7	Canadian Swingline Loan Subfacility	61
2.8	Letter of Credit Subfacility	64
2.9	Default Rate	68
2.10	Conversion Options	68
2.11	Prepayments	69
2.12	Termination and Reduction of Commitments	73
2.13	Fees	74
2.14	Computation of Interest and Fees	74
2.15	Pro Rata Treatment and Payments	76
2.16	Non-Receipt of Funds by an Agent	79
2.17	Benchmark Replacement Setting	80
2.18	Illegality	81
2.19	Requirements of Law	83
2.20	Indemnity	84
2.21	Taxes	85
2.22	Indemnification; Nature of Issuing Lender’s Duties	88
2.23	Replacement of Lenders	89
2.24	Relationship between the Canadian Swingline Lender and the Administrative Agent	89
2.25	Defaulting Lenders	89
2.26	Incremental Loans	92
2.27	Extensions of Revolving Maturity Date and/or Term Loan Maturity Date	95
2.28	Mexican Peso Revolving Credit Facility.	97
2.29	Circumstances Affecting Term SOFR, Eurocurrency Rates and RFRs.	98
ARTICLE III REPRESENTATIONS AND WARRANTIES		99
3.1	Corporate Existence; Compliance with Law	99

3.2	Corporate Power; Authorization	99
3.3	Enforceable Obligations	100
3.4	No Legal Bar	100
3.5	No Material Litigation	100
3.6	Investment Company Act	100
3.7	Margin Regulations	100
3.8	Compliance with Environmental Laws	101
3.9	[Reserved].	101
3.10	Financial Statements, Fiscal Year and Fiscal Quarters	101
3.11	ERISA	102
3.12	Accuracy and Completeness of Information	102
3.13	Compliance with Trading with the Enemy Act, OFAC Rules and Regulations, Patriot Act and FCPA	102
3.14	Use of Proceeds	103
3.15	Luxembourg Specific Representations.	103
3.16	EU Directive	104
ARTICLE IV CONDITIONS PRECEDENT		104
4.1	Conditions to Closing Date and Initial Revolving Loans	104
4.2	Conditions to Subsequent Extensions of Credit	106
ARTICLE V AFFIRMATIVE COVENANTS		108
5.1	Corporate Existence, Etc.	108
5.2	Compliance with Laws, Etc.	108
5.3	Payment of Taxes and Claims	108
5.4	Keeping of Books	108
5.5	Visitation, Inspection, Etc.	109
5.6	Insurance; Maintenance of Properties and Licenses	109
5.7	Financial Reports; Other Notices	109
5.8	Notices Under Certain Other Indebtedness	111
5.9	Notice of Litigation	112
5.10	Additional Guarantors	112
5.11	Use of Proceeds	112
ARTICLE VI NEGATIVE COVENANTS		113
6.1	Financial Requirements	113
6.2	Liens	113
6.3	Subsidiary Indebtedness	115
6.4	Merger and Sale of Assets	117
ARTICLE VII EVENTS OF DEFAULT		118
7.1	Events of Default	118
7.2	Acceleration; Remedies	121
ARTICLE VIII AGENCY PROVISIONS		121
8.1	Appointment	121

8.2	Delegation of Duties	122
8.3	Exculpatory Provisions	122
8.4	Reliance by Agents	123
8.5	Notice of Default	123
8.6	Non-Reliance on Agents and Other Lenders	123
8.7	Agents in Their Individual Capacity	124
8.8	Successor Agent; Issuing Lender; Swingline Lender	124
8.9	Patriot Act Notice	125
8.10	Guaranty Matters	125
8.11	Withholding	126
8.12	ERISA.	126
8.13	Erroneous Payments	127
ARTICLE IX MISCELLANEOUS		129
9.1	Amendments and Waivers	129
9.2	Notices	133
9.3	No Waiver; Cumulative Remedies	134
9.4	Survival of Representations and Warranties	135
9.5	Payment of Expenses	135
9.6	Successors and Assigns; Participations; Purchasing Lenders	137
9.7	Adjustments; Set-off	141
9.8	Table of Contents and Section Headings	141
9.9	Counterparts; Electronic Execution	142
9.10	Severability	142
9.11	Integration	142
9.12	Governing Law	142
9.13	Consent to Jurisdiction and Service of Process	142
9.14	Confidentiality	143
9.15	Acknowledgments	144
9.16	Waivers of Jury Trial	144
9.17	Judgment Currency	144
9.18	Subordination of Intercompany Debt	145
9.19	Acknowledgement and Consent to Bail-In of Affected Financial Institutions	145
9.20	Acknowledgement Regarding Any Supported QFCs.	145
ARTICLE X GUARANTY OF PARENT BORROWER OBLIGATIONS		147
10.1	The Guaranty	147
10.2	Bankruptcy	147
10.3	Nature of Liability	147
10.4	Independent Obligation	148
10.5	Authorization	148
10.6	Reliance	148
10.7	Waiver	148
10.8	Limitation on Enforcement	149
10.9	Confirmation of Payment	150
10.10	Keepwell	150

ARTICLE XI GUARANTY OF CANADIAN OBLIGATIONS AND FOREIGN SUBSIDIARY BORROWER OBLIGATIONS		150
11.1	The Guaranty	150
11.2	Bankruptcy	151
11.3	Nature of Liability	151
11.4	Independent Obligation.	151
11.5	Authorization	151
11.6	Reliance	152
11.7	Waiver	152
11.8	Limitation on Enforcement	153
11.9	Confirmation of Payment	153
11.10	Keepwell	153
ARTICLE XII SPECIAL PROVISIONS APPLICABLE TO LENDERS  UPON THE OCCURRENCE OF A SHARING EVENT		154
12.1	Participations	154
12.2	Administrative Agent’s Determinations Binding.	154
12.3	Participation Payments in U.S. Dollars	154
12.4	Delinquent Participation Payments	155
12.5	Settlement of Participation Payments	155
12.6	Participation Obligations Absolute	155
12.7	Increased Costs; Indemnities	156
12.8	Provisions Solely to Effect Sharing Arrangement	156

EXHIBITS

Exhibit A	Form of Account Designation Letter
Exhibit B	Form of Notice of Borrowing
Exhibit C	Form of Notice of Conversion/Extension
Exhibit D	Form of Designation Notice
Exhibit E-1	Form of U.S. Revolving Note
Exhibit E-2	Form of Canadian Revolving Note
Exhibit E-3	Form of Multicurrency Revolving Note
Exhibit E-4	[Reserved]
Exhibit E-5	Form of U.S. Swingline Note
Exhibit E-6	Form of Canadian Swingline Note
Exhibit F	Form of Tax Exempt Certificate
Exhibit G	Form of Officer’s Compliance Certificate
Exhibit H	Form of Joinder Agreement
Exhibit I	Form of Assignment and Assumption
Exhibit J	Form of Discounted Prepayment Option Notice
Exhibit K	Form of Lender Participation Notice
Exhibit L	Form of Discounted Voluntary Prepayment Notice

Adjusted Eurocurrency Rate =		Eurocurrency Rate for such Currency for such Interest Period
		1.00-Eurocurrency Reserve Percentage

Level	Leverage Ratio	Rating (S&P / Moody’s)	Applicable Percentage for Term SOFR Loans	Applicable Percentage for Eurocurrency Rate Loans and RFR Loans	Applicable Percentage for Base Rate Loans	Commitment Fee
I	< 1.50 to 1.00	A- / A3 (or better)	0.875%	0.875%	0.000%	0.080%
II	> 1.50 to 1.00 but < 2.00 to 1.00	BBB+ / Baa1	1.000%	1.000%	0.000%	0.100%
III	> 2.00 to 1.00 but < 2.50 to 1.00	BBB / Baa2	1.125%	1.125%	0.125%	0.125%
IV	> 2.50 to 1.00 but < 3.00 to 1.00	BBB- / Baa3	1.250%	1.250%	0.250%	0.175%
V	> 3.00 to 1.00	BB+ / Ba1 (or worse)	1.500%	1.500%	0.500%	0.225%

 

    

2.12            Termination and Reduction of Commitments.

 

(a)            Voluntary Reductions.

 

(x)            (i) The Parent Borrower shall have the right to terminate or permanently reduce the unused portion of the U.S. Revolving Committed Amount, (ii) the Canadian Borrower shall have the right to terminate or permanently reduce the unused portion of the Multicurrency Revolving Committed Amount, and (iii) each Multicurrency Borrower shall have the right to terminate or permanently reduce the unused portion of the Multicurrency Revolving Committed Amount, in each case at any time or from time to time upon not less than three (3) Business Days’ prior written notice to the Agents (who shall notify the Lenders thereof as soon as practicable) of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction which shall be in a minimum amount of U.S.$2,000,000 or a whole multiple of U.S.$1,000,000 in excess thereof and shall be accompanied by any prepayment required under Section 2.11(b)(i).  Delivery by the Applicable Borrower of a notice of reduction pursuant to this Section shall be deemed to be a permanent reduction of the U.S. Revolving Committed Amount or the Multicurrency Revolving Committed Amount, as applicable.  Each notice delivered by the Parent Borrower, by a Multicurrency Borrower or by the Canadian Borrower pursuant to this Section 2.12(a) shall be revocable by the Parent Borrower, by such Multicurrency Borrower or by the Canadian Borrower, as applicable (by notice to the Agents on or prior to the proposed termination or reduction date specified therein).

 

(y)            [Reserved].

 

(b)            Mandatory Reduction.  The Revolving Commitments shall terminate automatically on the Revolving Maturity Date.

 

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2.13            Fees.

 

(a)            Commitment Fee.

 

(i)            In consideration of the U.S. Revolving Commitment, the Parent Borrower agrees to pay to the Administrative Agent for the ratable benefit of the U.S. Revolving Lenders a commitment fee (the “U.S. Commitment Fee”) in an amount equal to the Applicable Percentage per annum on the average daily unused amount of the U.S. Revolving Committed Amount then in effect (other than that portion attributable to the Defaulting Lenders, if any).  For purposes of computation of the U.S. Commitment Fee, LOC Obligations shall be considered usage of the U.S. Revolving Committed Amount, but U.S. Swingline Loans shall not be considered usage of the U.S. Revolving Committed Amount.

 

(ii)            In consideration of the Multicurrency Revolving Commitment, the Canadian Borrower and the Multicurrency Borrowers, jointly and severally, agree to pay to the Multicurrency Agent for the ratable benefit of the Multicurrency Revolving Lenders a commitment fee (the “Multicurrency Commitment Fee”; together with the U.S. Commitment Fee, the “Commitment Fees”) in an amount equal to the Applicable Percentage per annum on the average daily unused amount of the Multicurrency Revolving Committed Amount then in effect (other than that portion attributable to the Defaulting Lenders, if any).  For purposes of computation of the Multicurrency Commitment Fee, Canadian Swingline Loans shall not be considered usage of the Multicurrency Revolving Committed Amount.

(iii)            [Reserved].

 

The Commitment Fees shall be payable quarterly in arrears on the last day of each calendar quarter.

 

(b)            Letter of Credit Fee.  In consideration of the LOC Commitments, the Parent Borrower agrees to pay to the Administrative Agent, for the ratable benefit of the U.S. Revolving Lenders (including the Issuing Lender) a fee (the “Letter of Credit Fee”) equal to the Applicable Percentage per annum for Term SOFR Loans on the average daily maximum amount available to be drawn under each Letter of Credit from the date of issuance to the date of expiration.  The Letter of Credit Fee shall be payable quarterly in arrears on the last day of each calendar quarter.

 

(c)            Issuing Lender Fees.  In addition to the Letter of Credit Fees payable pursuant to subsection (b) above, the Parent Borrower shall pay to the Issuing Lender for its own account without sharing by the other Lenders (i) a fronting fee of one-eighth of one percent (0.125%) per annum on the average daily maximum amount available to be drawn under each such Letter of Credit issued by it, such fee to be payable quarterly in arrears on the last day of each calendar quarter and (ii) the reasonable and customary charges from time to time of the Issuing Lender with respect to the amendment, transfer, administration, cancellation and conversion of, and drawings under, such Letters of Credit (collectively, the “Issuing Lender Fees”).

 

(d)            Administrative Agent’s Fee.  The Parent Borrower agrees to pay to the Administrative Agent the annual administrative agent fee as described in the Engagement Letter.

 

2.14            Computation of Interest and Fees.

 

(a)            Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable to such Loan.  Interest payable hereunder with respect to Alternate Base Rate Loans accruing interest at the Prime Rate, Canadian Prime Rate Loans, Eurocurrency Rate Loans accruing interest at CDOR, U.S. Base Rate Loans and RFR Loans shall be calculated on the basis of a year of 365 days (or 366 days, as applicable) for the actual days elapsed.  All other fees, interest and all other amounts payable hereunder shall be calculated on the basis of a 360 day year for the actual days elapsed.  The Administrative Agent shall as soon as practicable notify the Borrowers and the Lenders of each determination of Term SOFR, CDOR, EURIBOR and SONIA on the Business Day of the determination thereof.  Any change in the interest rate on a Loan resulting from a change in the Alternate Base Rate shall become effective as of the opening of business on the day on which such change in the Alternate Base Rate shall become effective.  The Administrative Agent shall as soon as practicable notify the Borrowers and the Lenders of the effective date and the amount of each such change.

 

(b)            Each determination of an interest rate by the Administrative Agent or the Multicurrency Agent, as applicable, pursuant to any provision of this Credit Agreement shall be conclusive and binding on the Borrowers and the Lenders in the absence of manifest error.  The Administrative Agent or the Multicurrency Agent shall, at the request of the Borrowers, deliver to the Borrowers a statement showing the computations used by the Administrative Agent or the Multicurrency Agent, as applicable, in determining any interest rate.

 

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(c)            Each Borrower hereby acknowledges that the rate or rates of interest applicable to certain of the Loans and fees as specified hereunder may be computed on the basis of a year of 360 days and paid for the actual number of days elapsed.  For purposes of the Interest Act (Canada), if interest to be paid hereunder is to be computed on the basis of a 360 day year or any other period of time that is less than a calendar year, the equivalent yearly rate of interest may be determined by multiplying the specified rate of interest by the number of days (365 or 366) in such calendar year and dividing such product by 360 or such other period of time, as the case may be.  For the purposes of the Interest Act (Canada), (i) the principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder and (ii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields. Each Credit Party hereby irrevocably agrees, to the extent permitted by applicable law, not to plead or assert, whether by way of defense or otherwise, in any proceeding relating to this Agreement and the other Credit Documents, that the interest payable under this Credit Agreement and the calculation thereof has not been adequately disclosed to it, whether pursuant to section 4 of the Interest Act (Canada) or any other applicable law or legal principle.

 

Notwithstanding any other provisions of this Credit Agreement, if the amount of any interest, premium, fees or other monies or any rate of interest stipulated for, taken, reserved or extracted under this Credit Agreement would otherwise contravene the provisions of Section 347 of the Criminal Code (Canada) or any successor or similar legislation, or would exceed the amounts which any Lender is legally entitled to charge and receive under any law to which such compensation is subject, then such amount or rate of interest shall be reduced to such maximum amount as would not contravene such provision; and to the extent that any excess has been charged or received such Lender shall apply such excess against the outstanding Canadian Revolving Loans and Canadian Swingline Loans and refund any further excess amount.

 

(d)            It is the intent of the Agents, the Lenders and the Credit Parties to conform to and contract in strict compliance with applicable usury law from time to time in effect.  All agreements between or among the Agents, the Lenders and the Credit Parties are hereby limited by the provisions of this subsection which shall override and control all such agreements, whether now existing or hereafter arising and whether written or oral.  In no way, nor in any event or contingency (including prepayment or acceleration of the maturity of any Credit Party Obligation), shall the interest taken, reserved, contracted for, charged, or received under this Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount permissible under applicable law.  If, from any possible construction of any of the Credit Documents or any other document, interest would otherwise be payable in excess of the maximum nonusurious amount, any such construction shall be subject to the provisions of this subsection and such interest shall be automatically reduced to the maximum nonusurious amount permitted under applicable law, without the necessity of execution of any amendment or new document.  If any Agent or Lender shall ever receive anything of value which is characterized as interest on the Loans under applicable law and which would, apart from this provision, be in excess of the maximum nonusurious amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Loans and not to the payment of interest, or refunded to the applicable Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal amount of the Loans.  The right to demand payment of the Loans or any other Indebtedness evidenced by any of the Credit Documents does not include the right to receive any interest which has not otherwise accrued on the date of such demand, and the Lenders do not intend to charge or receive any unearned interest in the event of such demand.  All interest paid or agreed to be paid to the Lenders with respect to the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term (including any renewal or extension) of the Loans so that the amount of interest on account of such Indebtedness does not exceed the maximum nonusurious amount permitted by applicable law.

 

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(e)            Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of this Agreement shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the applicable Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender shall not be entitled to any amounts payable hereunder solely in respect of increased costs resulting from such exercise and existing at the time of such exercise.

 

2.15            Pro Rata Treatment and Payments.

 

(a)            Pro Rata Distribution of Payments.  Each payment on account of an amount due from the Parent Borrower hereunder or under any other Credit Document (other than any such payment in respect of the Multicurrency Revolving Commitment) shall be made by the Parent Borrower to the Administrative Agent for the pro rata account of the Lenders entitled to receive such payment as provided herein in the currency in which such amount is denominated and in such funds as are customary at the place and time of payment for the settlement of international payments in such currency.  Each payment on account of an amount due from the Canadian Borrower hereunder or under any other Credit Document shall be made by the Canadian Borrower to the Multicurrency Agent for the pro rata account of the Canadian Lenders entitled to receive such payment as provided herein in the currency in which such amount is denominated and in such funds as are customary at the place and time of payment for the settlement of international payments in such currency.  Without limiting the terms of the preceding sentence, accrued interest on any Loans denominated in Canadian Dollars shall be payable in Canadian Dollars, and accrued interest on Canadian Revolving Loans denominated in U.S. Dollars shall be payable in U.S. Dollars, in each case to the Multicurrency Agent.  Each payment on account of an amount due from any Multicurrency Borrower hereunder or under any other Credit Document in respect of the Multicurrency Revolving Commitment shall be made by such Multicurrency Borrower to the Multicurrency Agent for the pro rata account of the Multicurrency Revolving Lenders entitled to receive such payment as provided herein in the currency in which such amount is denominated and in such funds as are customary at the place and time of payment for the settlement of international payments in such currency.  Without limiting the terms of the preceding sentence, accrued interest on any Loans denominated in a Multicurrency Alternative Currency shall be payable in such Multicurrency Alternative Currency to the Multicurrency Agent.  The Multicurrency Agent shall inform the Administrative Agent and the Administrative Agent shall inform the Multicurrency Agent, by facsimile as of the first Business Day of each month, of all principal, interest or fees received from the Borrowers during the prior month.  Upon request, the Administrative Agent or the Multicurrency Agent, as applicable will give the Borrowers a statement showing the computation used in calculating such amount, which statement shall be presumptively correct in the absence of manifest error.  The obligation of the Borrowers to make each payment on account of such amount in the currency in which such amount is denominated shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment, which is expressed in or converted into any other currency, except to the extent such tender or recovery shall result in the actual receipt by the Administrative Agent or the Multicurrency Agent, as applicable, of the full amount in the appropriate currency payable hereunder.  Each of the Borrowers agree that its obligation to make each payment on account of such amount in the currency in which such amount is denominated shall be enforceable as an additional or alternative claim for recovery in such currency of the amount (if any) by which such actual receipt shall fall short of the full amount of such currency payable hereunder, and shall not be affected by judgment being obtained for such amount.

 

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(b)            Application of Payments Prior to Exercise of Remedies.  Each borrowing of Revolving Loans and any reduction of the Revolving Commitments shall be made pro rata according to the respective Revolving Commitment Percentages of the Revolving Lenders.  Unless otherwise specified in this Credit Agreement, each payment under this Credit Agreement or any Note shall be applied (i) first, to any fees then due and owing by the Borrowers pursuant to Section 2.13, (ii) second, to interest then due and owing hereunder and under the Notes of the Borrowers and (iii) third, to principal then due and owing hereunder and under the Notes of the Borrowers.  Each payment on account of any fees pursuant to Section 2.13 shall be made pro rata in accordance with the respective amounts due and owing.  Each payment (other than voluntary repayments and mandatory prepayments) by the Borrowers on account of principal of and interest on the Revolving Loans and on the Term Loans shall be made pro rata according to the respective amounts due and owing hereunder.  Each voluntary repayment and mandatory prepayment on account of principal of the Loans shall be applied in accordance with Section 2.11(a) and Section 2.11(b)(ii), respectively.  All payments (including prepayments) to be made by the Borrowers on account of principal, interest and fees shall be made without defense, set-off or counterclaim and shall be made to the Administrative Agent or the Multicurrency Agent, as applicable, for the account of the Lenders (except as provided in Section 2.25(b))  at the Administrative Agent’s office or Multicurrency Agent’s Office, as applicable, specified in Section 9.2 and (i) in the case of Loans or other amounts denominated in U.S. Dollars, shall be made in U.S. Dollars not later than 12:00 p.m.  on the date when due, (ii) in the case of Loans or other amounts denominated in Canadian Dollars, shall be made in Canadian Dollars not later than 12:00 p.m. on the date when due and (iii) in the case of Loans or other amounts denominated in a Multicurrency Alternative Currency (other than U.S. Dollars), shall be made in such Multicurrency Alternative Currency not later than 12:00 p.m. on the date when due.  The Administrative Agent and the Multicurrency Agent, as applicable, shall distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds as received.  If any payment hereunder (other than payments on the Term SOFR Loans and Eurocurrency Rate Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.  If any payment on a Term SOFR Loan or a Eurocurrency Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.

 

(c)            Allocation of Payments After Exercise of Remedies.  Notwithstanding any other provision of this Credit Agreement to the contrary, after the exercise of remedies (other than the invocation of default interest pursuant to Section 2.9) by any of the Agents pursuant to Section 7.2 (or after the Commitments shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts under the Credit Documents shall automatically become due and payable in accordance with the terms of such Section), all amounts collected or received by any Agent or any Lender on account of the Credit Party Obligations or any other amounts outstanding under any of the Credit Documents shall be paid over or delivered as follows:

 

FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the Agents in connection with enforcing the rights of the Lenders under the Credit Documents;

 

SECOND, to payment of any fees owed to the Agents;

 

THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of each of the Lenders in connection with enforcing its rights under the Credit Documents or otherwise with respect to the Credit Party Obligations owing to such Lender;

 

FOURTH, to the payment of all of the Credit Party Obligations consisting of accrued fees and interest, and including, with respect to any Guaranteed Hedging Agreement and/or any Guaranteed Cash Management Agreement, any fees, premiums and scheduled periodic payments due under such Guaranteed Hedging Agreement and/or Guaranteed Cash Management Agreement and any interest accrued thereon;

 

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FIFTH, to the payment of the outstanding principal amount of the Credit Party Obligations and the payment or cash collateralization of the outstanding LOC Obligations, and including with respect to any Guaranteed Hedging Agreement and/or any Guaranteed Cash Management Agreement, any breakage, termination or other payments due under such Guaranteed Hedging Agreement and any interest accrued thereon;

 

SIXTH, to all other Credit Party Obligations and other obligations which shall have become due and payable under the Credit Documents or otherwise and not repaid pursuant to clauses “FIRST” through “FIFTH” above; and

 

SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.

 

In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category and (ii) each of the Lenders, Cash Management Banks and/or Hedging Agreement Providers shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans and LOC Obligations held by such Lender or the outstanding obligations payable to such Hedging Agreement Provider and/or Cash Management Bank bears to the aggregate then outstanding Loans and LOC Obligations and obligations payable under all Hedging Agreements with a Hedging Agreement Provider and/or Cash Management Agreements with a Cash Management Bank) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above.

 

No Agent shall be deemed to have notice of the existence of, notice of any Credit Party Obligations owed to, or be responsible for any distribution to, any Hedging Agreement Provider and/or Cash Management Bank for any purposes of this Agreement unless such amounts have been notified in writing to all Agents by the Parent Borrower and, as applicable, such Hedging Agreement Provider or Cash Management Bank.

 

(d)            Defaulting Lenders.  Notwithstanding the foregoing clauses (a), (b) and (c), if there exists a Defaulting Lender, each payment by the Borrowers to such Defaulting Lender hereunder shall be applied in accordance with Section 2.25(b).

 

2.16            Non-Receipt of Funds by an Agent.

 

(a)            Funding by Lenders; Presumption by Agent.  Unless the applicable Agent shall have been notified in writing by a Lender prior to the date a Loan is to be made by such Lender (which notice shall be effective upon receipt) that such Lender does not intend to make the proceeds of such Loan available to such Agent, such Agent may assume that such Lender has made such proceeds available to such Agent on such date, and such Agent may in reliance upon such assumption (but shall not be required to) make available to the Applicable Borrower a corresponding amount.  If such corresponding amount is not in fact made available to such Agent, such Agent shall be able to recover such corresponding amount from such Lender.  If such Lender does not pay such corresponding amount forthwith upon such Agent’s demand therefor, such Agent will promptly notify the Applicable Borrower, and such Borrower shall immediately pay such corresponding amount to such Agent.  The applicable Agent shall also be entitled to recover from the Lender or the Applicable Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by such Agent to the Applicable Borrower to the date such corresponding amount is recovered by such Agent at a per annum rate equal to (i) from the Applicable Borrower at the applicable rate for the applicable borrowing pursuant to the Notice of Borrowing and (ii) from a Lender at the Federal Funds Rate or the Interbank Reference Rate, as applicable.

 

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3.9            [Reserved].

 

3.10            Financial Statements, Fiscal Year and Fiscal Quarters.

 

(a)            The Parent Borrower has furnished to the Administrative Agent and the Lenders (i) copies of the audited consolidated financial statements of Holdco and its Subsidiaries for the three (3) fiscal years most recently ended prior to the Closing Date for which audited financial statements are available (it being understood that the Administrative Agent and the Lenders have received audited consolidated financial statements of Holdco and its Subsidiaries for fiscal years 2019, 2020 and 2021), in each case audited by independent public accounts of recognized national standing and prepared in conformity with GAAP and (ii) copies of interim unaudited condensed consolidated balance sheets, statements of operations and statements of cash flows of Holdco and its Subsidiaries as of and for the Fiscal Quarters ended December 31, 2021 and March 31, 2022.

 

(b)            The financial statements referenced in subsection (a) fairly present in all material respects the consolidated financial condition of Holdco and its Subsidiaries as of the dates thereof and the results of operations for such periods in conformity with GAAP consistently applied (subject, in the case of the quarterly financial statements, to normal year-end audit adjustments and the absence of certain notes). The Borrowers and the Restricted Subsidiaries taken as a whole did not have any material contingent obligations, contingent liabilities, or material liabilities for known taxes, long-term leases or unusual forward or long-term commitments required to be reflected in the foregoing financial statements or the notes thereto that are not so reflected.

 

(c)            [Reserved].

 

(d)            [Reserved].

 

(e)            Since September 30, 2021, there has been no change with respect to the Consolidated Companies taken as a whole which has had or is reasonably likely to have a Material Adverse Effect.

 

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3.11            ERISA.

 

(a)            Compliance.  Each Plan maintained by the Borrowers and the Restricted Subsidiaries has at all times been maintained, by its terms and in operation, in compliance with all applicable laws, except for such instances of non-compliance that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect.

(b)            Liabilities.  None of the Borrowers and the Restricted Subsidiaries is subject to any liabilities (including withdrawal liabilities) with respect to any Plans of the Borrowers, the Restricted Subsidiaries and their ERISA Affiliates arising from Titles I or IV of ERISA, other than obligations to fund benefits under an ongoing Plan and to pay current contributions, expenses and premiums with respect to such Plans, except for such liabilities that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect.

 

(c)            Funding.  Each Borrower and each Restricted Subsidiary and, with respect to any Plan which is subject to Title IV of ERISA, each of their respective ERISA Affiliates, have made full and timely payment of all amounts (A) required to be contributed under the terms of each Plan and applicable law, and (B) required to be paid as expenses (including PBGC or other premiums) of each Plan, except for failures to pay such amounts (including any penalties attributable to such amounts) that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect.

 

(d)            ERISA Event or Foreign Plan Event.  No ERISA Event or Foreign Plan Event has occurred or is reasonably expected to occur, except for such ERISA Events and Foreign Plan Events that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect.

 

3.12            Accuracy and Completeness of Information.

 

None of the written reports, financial statements, certificates, or final schedules to this Agreement or any other Credit Document heretofore, contemporaneously or hereafter furnished by or on behalf of any Credit Party or any of its Subsidiaries to the Agents, the Lead Arrangers or any Lender for purposes of or in connection with this Credit Agreement or any other Credit Document, or any transaction contemplated hereby or thereby, when taken as a whole, contains as of the date of such report, financial statement, certificate or schedule or, with respect to any such items so furnished on or prior to the Closing Date, as of the Closing Date 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 misleading; provided that, with respect to forecasts or projected financial information, the Credit Parties represent only that such information was prepared in good faith based upon assumptions believed by them to be reasonable at the time made, at the time so furnished and, with respect to any such items so furnished on or prior to the Closing Date, as of the Closing Date (it being understood that such forecasts and projections may vary from actual results and that such variances may be material).

 

3.13            Compliance with Trading with the Enemy Act, OFAC Rules and Regulations, Patriot Act and FCPA.

 

(a)            Neither any Credit Party nor any of its Subsidiaries is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended.  Neither any Credit Party nor any or its Subsidiaries is in violation of (i) the Trading with the Enemy Act, as amended, (ii) any of the foreign assets control regulations of the Office of Foreign Assets Control of the United States Treasury Department (“OFAC”) (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (iii) the Patriot Act or (iv) the Canadian AML Acts.  None of the Credit Parties (A) is subject to sanctions administered by OFAC or the U.S. Department of State or (B) to the best of its knowledge, engages in any dealings or transactions, or is otherwise associated, with any person subject to such sanctions.

 

(b)            None of the Credit Parties or their Subsidiaries or, to the knowledge of the Credit Parties, their respective Affiliates, directors, officers, employees or agents is in violation of any Sanctions.

 

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(c)            None of the Credit Parties or their Subsidiaries or their respective Affiliates, directors, officers, employees or agents (i) is a Sanctioned Person or a Sanctioned Entity, (ii) has more than 15% of its assets located in Sanctioned Entities, or (iii) derives more than 15% of its operating income from investments in, or transactions with Sanctioned Persons or Sanctioned Entities.  The proceeds of any Loan will not be used and have not been used, in each case directly by any Credit Party or any of its Subsidiaries or, to the knowledge of the Credit Parties, indirectly by any other Person, to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Entity.

 

(d)            Each of the Credit Parties and their Subsidiaries and, to the knowledge of the Credit Parties, their respective directors, officers, employees or agents is in compliance with the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., the Corruption of Foreign Public Officials Act (Canada) and any applicable foreign counterpart thereto.  None of the Credit Parties or their Subsidiaries or, to the knowledge of the Credit Parties, their respective directors, officers, employees or agents has made and no proceeds of any Loan will be used, in each case directly by any Credit Party or any of its Subsidiaries or, to the knowledge of the Credit Parties, indirectly by any other Person, to make a payment, offering, or promise to pay, or authorized the payment of, money or anything of value (a) in order to assist in obtaining or retaining business for or with, or directing business to, any foreign official, foreign political party, party official or candidate for foreign political office, (b) to a foreign official, foreign political party or party official or any candidate for foreign political office, and (c) with the intent to induce the recipient to misuse his or her official position to direct business wrongfully to such Credit Party or its Subsidiary or to any other Person, in violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., the Corruption of Foreign Public Officials Act (Canada) or any applicable foreign counterpart thereto.

 

3.14            Use of Proceeds.

 

The Extensions of Credit will be used solely (a) to repay Indebtedness under the Existing Credit Agreement, (b) to pay fees and expenses incurred in connection with the Transactions and (c) to provide for working capital and general corporate purposes of Holdco and its Subsidiaries, including any Acquisition or other Investment not prohibited hereunder.

 

3.15            Luxembourg Specific Representations.

 

(a)            The head office (administration centrale), the place of effective management (siège de direction effective) and (for the purposes of the European Insolvency Regulation ) and the center of main interests (centre des intérêts principaux) of the Luxembourg Borrower are  located at the place of its registered office (siège statutaire) in Luxembourg.

 

(b)            The Luxembourg Borrower has no “establishment” (as that term is used in Article 2(10) of the European Insolvency Regulation) in any other jurisdiction and the Luxembourg Borrower keeps its shareholder register (registre des associés) at its registered office in Luxembourg.

 

(c)            The Luxembourg Borrower does not carry out any activity in the financial sector on a professional basis (as referred to in the Luxembourg law dated 5 April 1993 on the financial sector, as amended from time to time) or any activity requiring the granting of a business license under the Luxembourg law dated 2 September 2011 governing the access to the professions of skilled craftsman, tradesman, manufacturer, as well as to certain liberal professions.

 

(d)            The Luxembourg Borrower complies with all requirements of the Luxembourg law of 31 may 1999 on the domiciliation of companies, as amended, and all related regulations.

 

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(e)            The Luxembourg Borrower is not, and will not, as a result of its entry into the Credit Documents or the performance of its obligations thereunder, be in a state of cessation of payments (cessation des paiements), or be deemed to be in such state, and has not lost, and will not, as a result of its entry into the Credit Documents or the performance of its obligations thereunder, lose its creditworthiness (ébranlement de crédit), or be deemed to have lost such creditworthiness and is not aware, or may be not reasonably be aware, of such circumstances.

 

3.16            EU Directive.  To the knowledge of the Credit Parties, neither any transaction contemplated by the Loan Documents, nor any transaction to be carried out in connection with any transaction contemplated thereby, meets any hallmark set out in Annex IV of the Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU.

 

ARTICLE IV
CONDITIONS PRECEDENT

 

4.1            Conditions to Closing Date and Initial Revolving Loans.

 

This Credit Agreement shall become effective upon, and the obligation of each Lender to make the initial Revolving Loans on the Closing Date is subject to, the satisfaction of the following conditions precedent:

(a)            Execution of Credit Agreement and Credit Documents.  Receipt by the Administrative Agent of (i) for the account of each U.S. Revolving Lender that makes a request therefor, a U.S. Revolving Note, (ii) for the account of each Multicurrency Revolving Lender that makes a request therefor, a Multicurrency Revolving Note, (iii) for the account of each Canadian Revolving Lender that makes a request therefor, a Canadian Revolving Note, (iv) for the account of the U.S. Swingline Lender, a U.S. Swingline Note, (v) for the account of the Canadian Swingline Lender, a Canadian Swingline Note, and (vi) a fully-executed counterpart of this Credit Agreement; in each case executed by a duly authorized officer of each party thereto and in each case conforming to the requirements of this Credit Agreement.

 

(b)            Legal Opinion.  Receipt by the Administrative Agent of the following legal opinions of counsel to the Credit Parties, in each case in form and substance reasonably acceptable to the Administrative Agent:  (i) a legal opinion of Cravath, Swaine & Moore LLP, special New York counsel to the Credit Parties, (ii) a legal opinion of the assistant general counsel of the Parent Borrower, (iii) a legal opinion of McInnes Cooper, special Canadian counsel to the Canadian Credit Parties and (iv) a legal opinion of Eversheds Sutherland (Luxembourg) LLP, special Luxembourg counsel to the Luxembourg Borrower.

 

(c)            Corporate Documents.

 

(i) With respect to each Credit Party (other than the Luxembourg Borrower), receipt by the Administrative Agent of the following (or their equivalent), each (other than with respect to clause (D)) certified by the secretary or assistant secretary of the applicable Credit Party as of the Closing Date to be true and correct and in force and effect pursuant to a certificate in a form reasonably satisfactory to the Administrative Agent:  (A) copies of the articles of incorporation or charter documents of each Credit Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state of its organization (to the extent customary in the applicable jurisdiction); (B) copies of resolutions of the board of directors or comparable managing body of each Credit Party approving and adopting the respective Credit Documents (including the transactions contemplated therein) and authorizing execution and delivery thereof; (C) copies of the bylaws, operating agreement or partnership agreement of each Credit Party; and (D) copies, where applicable, of certificates of good standing, existence or its equivalent of each Credit Party in its state or province of organization, certified as of a recent date by the appropriate Governmental Authorities of the applicable state or province of organization.

 

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(ii) With respect to the Luxembourg Borrower, receipt by the Administrative Agent of the following (or their equivalent), each certified by an authorized signatory of the Luxembourg Borrower as of the Closing Date to be true and correct and in force and effect pursuant to a certificate in a form reasonably satisfactory to the Administrative Agent:  (A) a true, complete and up-to-date copy of the articles association (statuts) of the Luxembourg Borrower; (B) a true, complete and up-to-date copy of an extract (extrait) from the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) (the “Luxembourg Companies Register”) dated as at the Closing Date, certified by an authorized signatory of the Luxembourg Borrower; (C) a negative certificate (certificat de non-inscription d’une décision judiciaire) from the Luxembourg Companies Register in respect of the Luxembourg Borrower and dated as at the Closing Date, certified by an authorized signatory of the Luxembourg Borrower; (D) a copy of a resolution of the board of managers of the Luxembourg Borrower approving and adopting this Agreement (including the transactions contemplated herein) and authorizing execution and delivery hereof; (E) a specimen of the signature of each person authorized by the resolution referred to in clause (D) above; (F) a solvency certificate dated as of the Closing Date (signed by an authorized signatory of the Luxembourg Borrower) stating that such Luxembourg Borrower is not subject to nor, as applicable, meets or threatens to meet the criteria of bankruptcy (faillite), insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de la faillite), controlled management (gestion contrôlée), reprieve from payment (sursis de paiement), general settlement with creditors, reorganization or similar laws affecting the rights of creditors generally in Luxembourg or abroad, or any analogous procedure in any jurisdiction, nor subject to any proceedings under the European Insolvency Regulation and no application has been made or is to be made by its manager or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any voluntary or judicial insolvency, winding-up, liquidation or similar proceedings; and (G) a certificate from an authorized signatory of the Luxembourg Borrower, certifying that it has complied with the Luxembourg law of 31 May 1999 on the domiciliation of companies, as amended and all related regulations.

 

(d)            Officer’s Certificate.  Receipt by the Administrative Agent of a certificate, in form and substance reasonably satisfactory to it, of a Responsible Officer certifying that after giving effect to each of the Transactions, the Credit Parties taken as a whole are solvent as of the Closing Date.

 

(e)            Account Designation Letter.  Receipt by the Administrative Agent of an executed counterpart of the Account Designation Letter.

 

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(f)            [Reserved].

 

(g)            Termination of Existing Credit Agreement.  The Administrative Agent shall have received evidence, in form and substance reasonably satisfactory to the Administrative Agent, that all principal, interest and other amounts outstanding in connection with the Existing Credit Agreement have been or substantially concurrently with the Closing Date are being repaid in full and terminated.

 

(h)            Fees.  Receipt by the Agents and the Lenders of all fees, if any, then owing pursuant to the Engagement Letter or pursuant to any other Credit Document, which fees may be paid or netted from the proceeds of the initial Extensions of Credit hereunder.

 

(i)            Patriot Act; Beneficial Ownership Regulation.  Each of the Lenders shall have received, at least three (3) days prior to the Closing Date (to the extent reasonably requested on a timely basis at least seven (7) days prior to the Closing Date), all documentation and other information required by the applicable Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Canadian AML Acts.  To the extent that any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Closing Date, any Lender that has requested, in a written notice to the Parent Borrower at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to such Borrower shall have received such Beneficial Ownership Certification.

 

(j)            Representations and Warranties.  The representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the Closing Date as if made on and as of such date (except for those which expressly relate to an earlier date).

 

(k)            No Default or Event of Default.  No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Closing Date.

4.2            Conditions to Subsequent Extensions of Credit.

 

The obligation of each Lender to make any Extension of Credit hereunder (other than the initial Extensions of Credit hereunder on the Closing Date) is subject to the satisfaction of the following conditions precedent on the date of making such Extension of Credit:

(a)            Representations and Warranties.  The representations and warranties made by the Credit Parties herein or in any other Credit Document (other than the representations and warranties pursuant to Sections 3.5 and 3.10(e)) or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Extension of Credit as if made on and as of such date (except for those which expressly relate to an earlier date).

 

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(b)            No Default or Event of Default.  No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Extension of Credit to be made on such date.

 

(c)            Compliance with Commitments.  Immediately after giving effect to the making of any such Extension of Credit (and the application of the proceeds thereof), (i) the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of outstanding Revolving Loans, Swingline Loans and LOC Obligations shall not exceed the Aggregate Revolving Committed Amount, (ii) the aggregate principal Dollar Amount of the outstanding U.S. Revolving Loans, U.S. Swingline Loans and LOC Obligations shall not exceed the U.S. Revolving Committed Amount, (iii) the aggregate Dollar Amount of LOC Obligations shall not exceed the LOC Committed Amount, (iv) the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of outstanding U.S. Swingline Loans shall not exceed the U.S. Swingline Committed Amount, (v) the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of outstanding Canadian Swingline Loans shall not exceed the Canadian Swingline Committed Amount and (vi) the aggregate principal Dollar Amount (determined as of the most recent Determination Date) of outstanding Canadian Revolving Loans plus Multicurrency Alternative Currency Revolving Loans plus Canadian Swingline Loans shall not exceed the Multicurrency Revolving Committed Amount.

 

(d)            Additional Conditions to U.S. Revolving Loans.  If a U.S. Revolving Loan is requested, all conditions set forth in Section 2.1 shall have been satisfied.

 

(e)            Additional Conditions to Canadian Revolving Loans.  If a Canadian Revolving Loan is requested, all conditions set forth in Section 2.2 shall have been satisfied.

(f)            Additional Conditions to Multicurrency Alternative Currency Revolving Loans.  If a Multicurrency Alternative Currency Revolving Loan is requested, all conditions set forth in Section 2.3 shall have been satisfied.

 

(g)            Additional Conditions to U.S. Swingline Loans.  If a U.S. Swingline Loan is requested, all conditions set forth in Section 2.6 shall have been satisfied.

 

(h)            Additional Conditions to Canadian Swingline Loans.  If a Canadian Swingline Loan is requested, all conditions set forth in Section 2.7 shall have been satisfied.

 

(i)            Additional Conditions to Letters of Credit.  If the issuance of a Letter of Credit is requested, all conditions set forth in Section 2.8 shall have been satisfied.

 

(j)            Additional Conditions to Incremental Term Loans.  Any Incremental Term Loans shall be borrowed pursuant to, and in accordance with, Section 2.26.

 

Other than the initial Extensions of Credit hereunder on the Closing Date, each request for an Extension of Credit (including extensions and conversions) and each acceptance by a Borrower of an Extension of Credit (including extensions and conversions) shall be deemed to constitute a representation and warranty by the Credit Parties as of the date of such Loan that the conditions in subsections (a) through (c) of this Section and, as applicable, subsections (d) through (i) of this Section, in each case have been satisfied.

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ARTICLE V
AFFIRMATIVE COVENANTS

 

The Credit Parties covenant and agree that on the Closing Date, and so long as this Credit Agreement is in effect and until the Commitments have been terminated, no Loans remain outstanding and all amounts owing hereunder or under any other Credit Document or in connection herewith or therewith (other than contingent indemnity obligations) have been paid in full (or, in the case of any Letter of Credit, cash collateralized, backstopped or replaced in a manner reasonably satisfactory to the applicable Issuing Lender), the Credit Parties shall:

 

5.1            Corporate Existence, Etc.

 

Preserve and maintain, and cause each of the Material Subsidiaries to preserve and maintain, its corporate existence (except as otherwise permitted pursuant to Section 6.4), its material rights, franchises, licenses, permits, consents, approvals and contracts, and its material trade names, service marks and other Intellectual Property (for the scheduled duration thereof), in each case material to the normal conduct of its business, and its qualification to do business as a foreign corporation in all jurisdictions where it conducts business or other activities making such qualification necessary, where the failure to be so qualified is reasonably likely to have a Material Adverse Effect.

 

5.2            Compliance with Laws, Etc.

 

Comply, and cause each of the Restricted Subsidiaries to comply, with all Requirements of Law (including all Environmental Laws, ERISA, the Trading with the Enemy Act, OFAC, the Patriot Act and the Canadian AML Acts, each as amended) and Contractual Obligations applicable to or binding on any of them where the failure to comply with such Requirements of Law and Contractual Obligations is reasonably likely to have a Material Adverse Effect.  Each of the Borrowers will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrowers, their Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.

 

5.3            Payment of Taxes and Claims.

 

File and cause each Restricted Subsidiary to file all Tax returns that are required to be filed by each of them and pay, collect, withhold and remit all Taxes that have become due pursuant to such returns or pursuant to any assessment in respect thereof received by a Borrower or any Restricted Subsidiary, and each Borrower and each Restricted Subsidiary will pay or cause to be paid all other Taxes due and payable (whether or not shown on a Tax return) before the same become delinquent, except, in each case, (i) such Taxes as are being contested in good faith by appropriate and timely proceedings and as to which adequate reserves have been established in accordance with GAAP or (ii) where failure to take the foregoing actions, individually or in the aggregate, is not reasonably likely to have a Material Adverse Effect.

 

5.4            Keeping of Books.

 

Keep, and cause each of the Restricted Subsidiaries to keep, proper books of record and account, containing complete and accurate entries of all their respective financial and business transactions.

 

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5.5 Visitation, Inspection, Etc.

 

Permit, and cause each of the Restricted Subsidiaries to permit, any representative of an Agent or, during the continuance of an Event of Default, any Lender, at such Agent’s or such Lender’s expense, to visit and inspect any of its property, to examine its books and records and to make copies and take extracts therefrom, and to discuss its affairs, finances and accounts with its officers, all at such reasonable times during normal business hours of Holdco or the applicable Restricted Subsidiary, as the case may be, after reasonable prior notice to the Parent Borrower; provided, however, that unless an Event of Default has occurred and is continuing, such visits and inspections can occur no more frequently than once per year.

5.6            Insurance; Maintenance of Properties and Licenses.

 

(a)            Maintain or cause to be maintained with financially sound and reputable insurers or through self-insurance (including with a Captive Insurance Subsidiary), risk retention or risk transfer programs, insurance with respect to its properties and business, and the properties and business of the Restricted Subsidiaries, against loss or damage of the kinds that the Parent Borrower in its judgment deems reasonable, such insurance to be of such types and in such amounts and subject to such deductibles and self-insurance programs as the Parent Borrower in its judgment deems reasonable.

 

(b)            Cause, and cause each Restricted Subsidiary to cause, all properties material to the conduct of its business to be maintained and kept in good condition, repair and working order, ordinary wear and tear excepted, and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, settlements and improvements thereof, all as in the judgment of any Borrower may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times except as would not, individually or in the aggregate, have a Material Adverse Effect; provided, however, that nothing in this Section 5.6(b) shall prevent a Credit Party from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the judgment of the Parent Borrower, desirable in the conduct of its business or the business of any Borrower or any of the Restricted Subsidiaries.

 

(c)            Maintain, in full force and effect in all material respects, each and every material license, permit, certification, qualification, approval or franchise issued by any Governmental Authority (each a “License”) required for each of the Credit Parties to conduct their respective businesses as presently conducted except as would not, individually or in the aggregate, have a Material Adverse Effect; provided, however, that nothing in this Section 5.6(c) shall prevent a Credit Party from discontinuing the operation or maintenance of any such License if such discontinuance is, in the judgment of the Parent Borrower, desirable in the conduct of its business or business of Holdco or any of the Restricted Subsidiaries.

 

5.7            Financial Reports; Other Notices.

 

Furnish to the Administrative Agent (for delivery to each Lender):

 

(a)            after the end of each of the first three quarterly accounting periods of each of its Fiscal Years (commencing with the Fiscal Quarter ending on the last day of the first Fiscal Quarter ending after the Closing Date), as soon as prepared, but in any event at the same time the SEC Filer files or is (or would be) required to file the same with the SEC, the quarterly unaudited consolidated balance sheet of Holdco and its consolidated Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows (together with all footnotes thereto) of Holdco  and its consolidated Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the SEC Filer’s previous Fiscal Year, accompanied by a certificate, dated the date of furnishing, signed by a Responsible Officer of the SEC Filer to the effect that such financial statements accurately present in all material respects the consolidated financial condition of Holdco and its consolidated Subsidiaries and that such financial statements have been prepared in accordance with GAAP consistently applied (subject to year-end adjustments); provided, however, during any period that Holdco has consolidated Subsidiaries which are not Consolidated Companies, Holdco shall also provide such financial information in a form sufficient to enable the Agents and the Lenders to determine the compliance of the Borrowers with the terms of this Credit Agreement with respect to the Consolidated Companies;

 

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(b)            after the end of each of its Fiscal Years (commencing with the first Fiscal Year ending after the Closing Date), as soon as prepared, but in any event at the same time the SEC Filer files or is (or would be) required to file the same with the SEC, the annual audited report for that Fiscal Year for Holdco and its consolidated Subsidiaries, containing a consolidated balance sheet of Holdco and its consolidated Subsidiaries as of the end of such fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of Holdco and its consolidated Subsidiaries for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year (which financial statements shall be reported on by the SEC Filer’s independent certified public accountants, such report to state that such financial statements fairly present in all material respects the consolidated financial condition and results of operation of Holdco and its consolidated Subsidiaries in accordance with GAAP, and which shall not be subject to any “going concern” or like qualification, exception, assumption or explanatory language (other than solely as a result of a maturity date in respect of any Term Loans, Revolving Commitments or Revolving Loans) or any qualification, exception, assumption or explanatory language as to the scope of such audit); provided, however, during any period that Holdco has consolidated Subsidiaries which are not Consolidated Companies, Holdco shall also provide such financial information in a form sufficient to enable the Agents and the Lenders to determine the compliance of the Borrowers with the terms of this Credit Agreement with respect to the Consolidated Companies;

 

(c)            not later than five days after the delivery of the financial statements described in Section 5.7(a) and (b) above, commencing with such financial statements for the earlier of the first Fiscal Quarter and the first Fiscal Year ending after the Closing Date, a certificate of a Responsible Officer substantially in the form of Exhibit G, stating that, to the best of such Responsible Officer’s knowledge, each of the Credit Parties during such period observed or performed in all material respects all of its covenants and other agreements, and satisfied in all material respects every condition, contained in this Credit Agreement to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and such certificate shall include (i) the calculations in reasonable detail required to indicate compliance with Section 6.1 as of the last day of such period and that the financial information provided has been prepared in accordance with GAAP applied consistently for the periods related thereto and (ii) a schedule that includes actual actions taken and run-rate synergies achieved versus actions scheduled and associated estimated run-rate synergies pursuant to clause (ix) in the definition of EBITDA;

 

(d)            promptly upon the filing thereof or otherwise becoming available, copies of all financial statements, annual, quarterly and special reports, proxy statements and notices sent or made available generally by Holdco to its public security holders, of all regular and periodic reports and all registration statements and prospectuses, if any, filed by any of them with any securities exchange or with the SEC;

 

(e)            as soon as possible and in any event within thirty (30) days after Holdco or any Restricted Subsidiary knows or has reason to know that any ERISA Event or Foreign Plan Event with respect to any Plan or Foreign Plan has occurred and such ERISA Event or Foreign Plan Event involves a matter that has had, or is reasonably likely to have, a Material Adverse Effect, a statement of a Responsible Officer setting forth details as to such ERISA Event or Foreign Plan Event and the action which Holdco or such Restricted Subsidiary proposes to take with respect thereto;

 

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(f)            to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, an updated Beneficial Ownership Certification as promptly as practicable following any change in the information provided in the Beneficial Ownership Certification delivered to any Lender in relation to such Borrower that would result in a change to the list of beneficial owners identified in such certification;

 

(g)            prompt written notice of the occurrence of any Default or Event of Default;

 

(h)            prompt written notice of the occurrence of any Material Adverse Effect;

 

(i)            a copy of any material notice to the holders of (or any trustee with respect to) the Existing Senior Notes; and

 

(j)            with reasonable promptness, (x) such other information relating to each Borrower’s performance of this Credit Agreement or its financial condition as may reasonably be requested from time to time by the Administrative Agent (at the request of the Multicurrency Agent or any Lender) and (y) all documentation and other information required by the applicable Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Canadian AML Acts, or applicable anti-corruption statutes, including the Foreign Corrupt Practices Act, that is reasonably requested from time to time by any Agent or any Lender.

 

The Credit Parties will cooperate with the Administrative Agent in connection with the publication of certain materials and/or information provided by or on behalf of the Credit Parties to the Administrative Agent and Lenders (collectively, “Information Materials”) pursuant to this Article V; provided that upon the filing by the Credit Parties of the items referenced in Section 5.7(a), 5.7(b) or 5.7(d) with the SEC for public availability, the Credit Parties, with respect to such items so filed, shall not be required to separately furnish such items to the Administrative Agent and Lenders.  In addition, the Credit Parties will designate Information Materials (i) that are either available to the public or not material with respect to the Credit Parties and their Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (ii) that are not Public Information as “Private Information”.

 

5.8            Notices Under Certain Other Indebtedness.

 

Promptly following its receipt thereof, Holdco shall furnish the Administrative Agent a copy of any notice received by it, the Parent Borrower, the Canadian Borrower, any Multicurrency Borrower or any of the other Restricted Subsidiaries from the holder(s) of Indebtedness (or from any trustee, agent, attorney, or other party acting on behalf of such holder(s)) in a Dollar Amount which, in the aggregate, exceeds U.S.$200,000,000, where such notice states or claims the existence or occurrence of any default or event of default with respect to such Indebtedness under the terms of any indenture, loan or credit agreement, debenture, note, or other document evidencing or governing such Indebtedness.

  

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5.9            Notice of Litigation.

 

Notify the Administrative Agent of any actions, suits or proceedings instituted by any Person against Holdco, a Borrower or any Restricted Subsidiary where the uninsured portion of the money damages sought (which shall include any deductible amount to be paid by Holdco, such Borrower or such Restricted Subsidiary) is reasonably likely to have a Material Adverse Effect.  Said notice is to be given promptly, and is to specify the amount of damages being claimed or other relief being sought, the nature of the claim, the Person instituting the action, suit or proceeding, and any other significant features of the claim.

5.10            Additional Guarantors.

 

(a)            If any Wholly-Owned Restricted Subsidiary that is a Domestic Subsidiary (a “Wholly-Owned Domestic Restricted Subsidiary”) (x) provides a guarantee with respect to any Indebtedness of Holdco, the Parent Borrower, RKT or MWV in a Dollar Amount which, in the aggregate, exceeds U.S.$200,000,000 and (y) is not a Guarantor at such time, the Parent Borrower shall cause such Wholly-Owned Domestic Restricted Subsidiary to become a Guarantor of the Parent Borrower’s Credit Party Obligations.  Holdco, the Parent Borrower, the Canadian Borrower or a Multicurrency Borrower may, in its sole and absolute discretion, elect to cause a Restricted Subsidiary to become a Guarantor of its Credit Party Obligations by executing a Joinder Agreement.  Upon the execution and delivery by such Subsidiary of a Joinder Agreement, such Restricted Subsidiary shall be deemed to be a Credit Party hereunder, and each reference in this Agreement to a “Credit Party” shall also mean and be a reference to such Restricted Subsidiary, for so long as such Joinder Agreement is in effect.

 

(b)            In the case of each Restricted Subsidiary that becomes a Guarantor in accordance with clause (a) above, Holdco or the applicable Borrower shall ensure that before the execution of any Joinder Agreement, the Administrative Agent receives the items referred to in Section 4.1(a) in respect of such Guarantor, and a certificate of a Responsible Officer with respect to the representations and warranties in Article III.

 

(c)            Notwithstanding anything herein to the contrary, in no event shall a Captive Insurance Subsidiary be required to become a Guarantor.

 

5.11            Use of Proceeds.

 

Use the Loans (other than the Incremental Loans) solely for the purposes provided in Section 3.14.  Use the proceeds of any Incremental Term Loan and any Incremental Revolving Commitment Increases as permitted pursuant to Section 2.26, as applicable.  The Borrowers will not request any Extension of Credit, and no Borrower shall  use directly or, to its knowledge, indirectly, and shall procure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use directly or, to its knowledge, indirectly, the proceeds of any Extension of Credit (A) 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 Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Entity, to the extent such activities, businesses or transaction would be prohibited by Sanctions if conducted by a corporation incorporated in the United States, Canada (or any province or territory thereof) or in a European Union member state, or (C) in any manner that would result in the violation of  any Sanctions applicable to any party hereto.

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ARTICLE VI

NEGATIVE COVENANTS

The Credit Parties covenant and agree that on the Closing Date, and so long as this Credit Agreement is in effect and until the Commitments have been terminated, no Loans remain outstanding and all amounts owing hereunder or under any other Credit Document or in connection herewith or therewith (other than contingent indemnity obligations) have been paid in full (or, in the case of any Letter of Credit, cash collateralized, backstopped or replaced in a manner reasonably satisfactory to the Issuing Lender):

6.1            Financial Requirements.

 

Holdco and the Borrowers will not suffer or permit the Debt to Capitalization Ratio as of the last day of each Fiscal Quarter ending on or after the Closing Date to be greater than 0.65:1.00; provided that in lieu of the foregoing, for any such date occurring after a Qualified Acquisition and on or prior to the last day of the third full Fiscal Quarter ending after the consummation of such Qualified Acquisition, Holdco and the Borrowers will not suffer or permit the Debt to Capitalization Ratio as of the last day of any such Fiscal Quarter to be greater than 0.70:1.00.

 

6.2            Liens.

 

Holdco and the Borrowers will not, and will not permit any Restricted Subsidiary to, create, assume or suffer to exist any Lien upon any of their respective Properties whether now owned or hereafter acquired; provided, however, that this Section 6.2 shall not apply to the following:

(a)            any Lien for Taxes not yet due or Taxes or assessments or other governmental charges which are being actively contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP;

 

(b)            any Liens, pledges or deposits (i) in connection with worker’s compensation, social security, health, disability or other employee benefits, or property, casualty or liability insurance, assessments or other similar charges or deposits incidental to the conduct of the business of Holdco, a Borrower or any Restricted Subsidiary (including security deposits posted with landlords and utility companies) or the ownership of any of their assets or properties which were not incurred in connection with the borrowing of money or the obtaining of advances or credit and which do not in the aggregate materially detract from the value of their Properties or materially impair the use thereof in the operation of their businesses and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the account of any Credit Party in the ordinary course of business supporting obligations of the type set forth in clause (i) above;

 

(c)            statutory Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by law created in the ordinary course of business for amounts not overdue by more than 30 days, or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established, or which are not material in amount;

 

(d)            pledges or deposits for the purpose of securing a stay or discharge in the course of any legal proceeding and judgment liens in respect of judgments that do not constitute an Event of Default under Section 7.1(i);

 

(e)            Liens consisting of encumbrances in the nature of zoning restrictions, easements, rights and restrictions on real property and statutory Liens of landlords and lessors which in each case do not materially impair the use of any material Property;

 

(f)            any Lien in favor of the United States of America or any department or agency thereof, or in favor of any state government or political subdivision thereof, or in favor of a prime contractor under a government contract of the United States, or of any state government or any political subdivision thereof, and, in each case, resulting from acceptance of partial, progress, advance or other payments in the ordinary course of business under government contracts of the United States, or of any state government or any political subdivision thereof, or subcontracts thereunder and which do not materially impair the use of such Property as currently being utilized by Holdco or any Restricted Subsidiary;

 

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(g)            any Lien securing any debt securities issued (including via exchange offer and regardless of when issued) in the capital markets if and to the extent that the Credit Party Obligations under this Agreement are concurrently secured by a Lien equal and ratable with the Lien securing such debt securities;

 

(h)            Liens (i)(A) existing on the Closing Date securing industrial development bonds and Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed $325,000,000 and (B) securing Refinancing Indebtedness in respect of Indebtedness referenced in clause (i)(A) above and (ii) securing any industrial development bonds or similar instruments with respect to which both the debtor and the investor are Consolidated Companies;

 

(i)            (i) Liens existing or deemed to exist in connection with any Permitted Securitization Transaction, but only to the extent that any such Lien relates to the applicable Securitization Assets or other accounts receivable and other assets (together with related rights and proceeds) sold, contributed, financed or otherwise conveyed or pledged pursuant to such transactions and (ii) Liens existing or deemed to exist in connection with any inventory financing arrangement so long as the fair market value of the inventory on which such Liens exist pursuant to this clause (ii) does not exceed $250,000,000 at any time;

 

(j)            any interest of a lessor, licensor, sublessor or sublicensor (or of a lessee, licensee, sublessee or sublicensee) under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases, licenses, subleases and sublicenses not prohibited by this Agreement;

 

(k)            any interest of title of an owner of equipment or inventory on loan or consignment to, or subject to any title retention or similar arrangement with, a Credit Party, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to such arrangements entered into in the ordinary course of business (but excluding any general inventory financing);

 

(l)            banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with depositary institutions and securities accounts and other financial assets maintained with a securities intermediary; provided that such deposit accounts or other funds and securities accounts or other financial assets are not established or deposited for the purpose of providing collateral for any Indebtedness and are not subject to restrictions on access by any Credit Party in excess of those required by applicable banking regulations;

 

(m)            Liens of a collecting bank arising in the ordinary course of business under Section 4-208 (or the applicable corresponding section) of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon;

 

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

 

(o)            Liens that are contractual rights of set-off not securing any Indebtedness;

 

(p)            Liens (i) solely on any cash earnest money deposits, escrow arrangements or similar arrangements made by any Credit Party in connection with a letter of intent or purchase agreement for an Acquisition or other transaction not prohibited hereunder and (ii) consisting of an agreement to dispose of any Property in a disposition not prohibited hereunder, including customary rights and restrictions contained in such an agreement;

 

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(q)            Liens on (i) any Property of a Credit Party in favor of any other Credit Party or Restricted Subsidiary and (ii) any Property of a Non-Credit Party securing Indebtedness of a Non-Credit Party to the extent such Indebtedness is permitted to exist or be incurred pursuant to Section 6.3;

 

(r)            any restriction or encumbrance with respect to the pledge or transfer of the Capital Stock of any Joint Venture;

 

(s)            Liens securing insurance premium financing arrangements;

 

(t)            any Lien renewing, extending, refinancing or refunding any Lien permitted by subsection (g) or (h) above; provided that (i) the Property covered thereby is not increased, (ii) the amount secured or benefited thereby is not increased, (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 6.3;

 

(u)            Liens on cash, deposits or other collateral granted in favor of the Swingline Lender or the Issuing Lender to cash collateralize any Defaulting Lender’s participation in Letters of Credit or Swingline Loans;

 

(v)            Liens on cash or deposits granted to any Agent or Issuing Lender in accordance with the terms of this Agreement to cash collateralize any of the Credit Party Obligations;

 

(w)            other Liens in addition to those permitted by subsections (a) through (v) above; provided that, at the time of incurrence of any Lien under this subsection (w), the aggregate outstanding principal amount of all obligations secured by such Lien (or in the case of Liens on inventory in connection with an inventory financing arrangement, which Liens are not otherwise permitted by subsection (i) of this Section 6.2, the fair market value of the inventory on which such Liens exist) shall not exceed the Priority Debt Basket at such time (determined prior to giving effect to the incurrence of such Lien); and

 

(x)            Liens on any Property of an Eligible Subsidiary securing any Indebtedness incurred pursuant to Section 6.3(n).

 

6.3            Subsidiary Indebtedness.

 

Holdco and the Borrowers will not permit any of their respective Restricted Subsidiaries (other than the Borrowers and the Guarantors) to create, incur, assume or suffer to exist any Indebtedness except:

(a)            (A) Indebtedness existing as of the Closing Date in respect of industrial development bonds and Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed $325,000,000 and (B) Refinancing Indebtedness in respect of Indebtedness incurred under clause (A) above;

 

(b)            Indebtedness of any Restricted Subsidiary owing to Holdco or any Restricted Subsidiary;

 

(c)            other Indebtedness (whether secured or unsecured); provided that (i) at the time of incurrence of any Indebtedness under this subsection (c), the aggregate principal amount of such Indebtedness does not exceed the Priority Debt Basket at such time (determined prior to giving effect to the incurrence of such Indebtedness) and (ii) for the avoidance of doubt, the Farm Credit Term Loan Facility shall be considered Indebtedness incurred pursuant to this clause (c);

 

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(d)            Indebtedness and obligations owing under Hedging Agreements and/or Cash Management Agreements so long as such Hedging Agreements and/or Cash Management Agreements are not entered into for speculative purposes;

 

(e)            Guaranty Obligations of any Restricted Subsidiary in respect of Indebtedness of Holdco or any other Restricted Subsidiary to the extent such Indebtedness is permitted to exist or be incurred pursuant to this Section 6.3;

 

(f)            obligations of any Restricted Subsidiary in connection with (i) any Permitted Securitization Transaction to the extent such obligations constitute Indebtedness and (ii) any inventory financing arrangements so long as the aggregate principal amount of Indebtedness in respect thereof incurred under this subsection (f)(ii) does not exceed $250,000,000 at any time outstanding;

 

(g)            Indebtedness of any Restricted Subsidiary consisting of completion guarantees, performance bonds, surety bonds or customs bonds incurred in the ordinary course of business;

 

(h)            Indebtedness owed to any Person (including obligations in respect of letters of credit, bank guarantees and similar instruments for the benefit of such Person) providing workers’ compensation, social security, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;

 

(i)            Indebtedness owed in respect of any overdrafts and related liabilities arising from treasury, depositary and cash management services or in connection with any automated clearinghouse transfers of funds; provided that such Indebtedness shall be repaid in full within five Business Days of the incurrence thereof;

 

(j)            Indebtedness in respect of judgments that do not constitute an Event of Default under Section 7.1(i);

 

(k)            Indebtedness consisting of the financing of insurance premiums with the providers of such insurance or their Affiliates;

 

(l)            Indebtedness created under this Agreement or any other Credit Document;

 

(m)            Indebtedness of any Restricted Subsidiary that is a Foreign Subsidiary in an aggregate principal amount not to exceed $600,000,000 at any time outstanding; and

 

(n)            Indebtedness of an Eligible Subsidiary in an aggregate principal amount not to exceed $1,000,000,000 at any time outstanding.

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6.4            Merger and Sale of Assets.

 

Holdco and the Borrowers will not, and will not permit any Restricted Subsidiary to, dissolve, wind-up, merge, amalgamate or consolidate with any other Person or sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of the business or assets of Holdco, the Borrowers and their respective Restricted Subsidiaries (taken as a whole), whether now owned or hereafter acquired (excluding any inventory or other assets sold or disposed of in the ordinary course of business); provided that, notwithstanding any of the foregoing limitations, Holdco, the Borrowers and the Restricted Subsidiaries may take the following actions:

 

(a)            (i) if no Event of Default shall then exist or immediately thereafter will exist, a Borrower may merge, amalgamate or consolidate with any Person so long as (A) such Borrower is the surviving entity or (B) the surviving entity (the “Successor Borrower”) (x) is organized under the laws of the United States or any State thereof, (y) expressly assumes such Borrower’s obligations under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto, as applicable, in form and substance reasonably satisfactory to the Administrative Agent and (z) each Guarantor of the Credit Party Obligations of such Borrower shall have confirmed that its obligations hereunder in respect of such Credit Party Obligations shall apply to the Successor Borrower’s obligations under this Agreement (it being understood that, if the foregoing conditions in clauses (x) through (z) are satisfied, then the Successor Borrower will automatically succeed to, and be substituted for, such Borrower under this Agreement); provided, however, that such Borrower shall have provided not less than five Business Days’ notice of any merger, amalgamation or consolidation of such Borrower, and such Borrower or Successor Borrower shall, promptly upon the request of the Administrative Agent or any Lender, supply any documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations, (ii) any Restricted Subsidiary (other than the Parent Borrower) may merge, amalgamate or consolidate with a Borrower if such Borrower is the surviving entity, (iii) any Restricted Subsidiary (other than a Borrower) may merge, amalgamate or consolidate with any other Person (other than a Borrower); provided that a Restricted Subsidiary shall be the continuing or surviving entity and to the extent such continuing or surviving Restricted Subsidiary assumes the obligations under any Existing Senior Notes, such Restricted Subsidiary shall become a Guarantor of the Credit Party Obligations and deliver an executed Joinder Agreement and the documents required pursuant to Section 5.10(b), (iv) any Restricted Subsidiary (other than a Borrower) may merge or amalgamate with any Person that is not a Restricted Subsidiary in connection with a sale of Property permitted under this Section 6.4, (v) any Restricted Subsidiary (other than a Borrower) may be dissolved so long as the property and assets of such Restricted Subsidiary are transferred to Holdco or any other Restricted Subsidiary and (vi) Holdco may merge, amalgamate or consolidate with any Person so long as (A) Holdco is the surviving entity, (B) if Holdco is merging, amalgamating or consolidating with the Parent Borrower, then the Parent Borrower is the surviving entity or (C) the surviving entity (the “Successor Holdco”) (x) is organized under the laws of the United States or any State thereof and (y) expressly assumes Holdco’s obligations under this Agreement and the other Credit Documents to which Holdco is a party pursuant to a supplement hereto or thereto, as applicable, in form and substance reasonably satisfactory to the Administrative Agent (it being understood that, if the foregoing conditions in clauses (x) and (y) are satisfied, then the Successor Holdco will automatically succeed to, and be substituted for, Holdco under this Agreement); provided, however, that Holdco shall have provided not less than five Business Days’ notice of any merger, amalgamation or consolidation of Holdco, and Holdco or Successor Holdco shall, promptly upon the request of the Administrative Agent or any Lender, supply any documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations;

 

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(b)            any Restricted Subsidiary (other than the Parent Borrower) may sell, lease, transfer or otherwise dispose of any or all of its Property to (i) a Borrower, (ii) any Guarantor or (iii) any Restricted Subsidiary; provided that, with respect to transfers described in clause (iii), upon completion of such transaction (A) there shall exist no Default or Event of Default and (B) the Subsidiary to which the Restricted Subsidiary’s Property is sold, leased, transferred or otherwise disposed shall be a Restricted Subsidiary and, if such Restricted Subsidiary is a Guarantor, a Guarantor; and

 

(c)            any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders.