8-K
0001527508false00015275082024-05-282024-05-28

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 28, 2024

 

 

PACTIV EVERGREEN INC.

(Exact name of Registrant as Specified in Its Charter)

 

 

Delaware

001-39528

88-0927268

(State or Other Jurisdiction
of Incorporation)

(Commission File Number)

(IRS Employer
Identification No.)

 

 

 

 

 

1900 W. Field Court

 

Lake Forest, Illinois

 

60045

(Address of Principal Executive Offices)

 

(Zip Code)

 

Registrant’s Telephone Number, Including Area Code: 847 482-2000

 

 

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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


Title of each class

 

Trading
Symbol(s)

 


Name of each exchange on which registered

Common stock, $0.001 par value

 

PTVE

 

The Nasdaq Stock Market LLC

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

Emerging growth company

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

 

 

 


 

Item 1.01. Entry into a Material Definitive Agreement.

On May 28, 2024, Pactiv Evergreen Inc. (the “Company”), Pactiv Evergreen Group Holdings Inc. (“PEGHI”), Pactiv LLC (“Pactiv”), Evergreen Packaging LLC (together with PEGHI and Pactiv, the “Borrowers”), certain other subsidiaries of the Company, Credit Suisse AG, Cayman Islands Branch (“Credit Suisse”), as term loan facility administrative agent, Wells Fargo Bank, National Association (“Wells Fargo”), as revolving credit facility administrative agent, and the lenders party thereto, entered into the Specified Refinancing Amendment and Administrative Agency Transfer Agreement (Amendment No. 18), dated as of May 28, 2024 (“Amendment No. 18”), to the Fourth Amended and Restated Credit Agreement, dated as of August 5, 2016 (as amended and supplemented from time to time, the “Credit Agreement”).

Amendment No. 18 provided for a new tranche of term loans denominated tranche B-4 U.S. term loans (the “B-4 Term Loans”), drawn in a single draw in an aggregate principal amount equal to $1,330 million by the Borrowers on May 28, 2024. The Borrowers used the proceeds of the B-4 Term Loans, together with the proceeds of revolving loans borrowed on the same date, to prepay in full the Company’s then outstanding tranche B-2 U.S. term loans and tranche B-3 U.S. term loans (collectively, the “Existing Term Loans”). The B-4 Term Loans will mature on September 24, 2028. Unlike the Existing Term Loans, the B-4 Term Loans do not provide for a credit spread adjustment, and the B-4 Term Loans will bear interest at a rate per annum equal to (i) in the case of SOFR borrowings, Term SOFR plus 2.50% and (ii) in the case of ABR borrowings, the Alternate Base Rate plus 1.50%. Amendment No. 18 also transferred all remaining administrative agent responsibilities from Credit Suisse to Wells Fargo.

The foregoing summary of Amendment No. 18 is qualified in its entirety by reference to the complete terms and provisions of Amendment No. 18, which is filed herewith as Exhibit 10.1 and incorporated herein by reference.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The disclosure set forth under Item 1.01 above is incorporated herein by reference.

Item 7.01. Regulation FD Disclosure.

On May 29, 2024, the Company issued a press release announcing the execution of Amendment No. 18. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.

The information included in this Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1 attached hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, nor shall it be deemed incorporated by reference into any other filing under the Securities Act of 1933, as amended, or the Exchange Act, except as otherwise expressly set forth by specific reference in such filing.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit

Number

 

Description

10.1

 

Specified Refinancing Amendment and Administrative Agency Transfer Agreement (Amendment No. 18), dated as of May 28, 2024, by and among Pactiv Evergreen Group Holdings Inc., Pactiv LLC, Evergreen Packaging LLC, the Registrant, the guarantors from time to time party thereto, the lenders from time to time party thereto, Credit Suisse AG, Cayman Islands Branch, as term loan facility administrative agent, and Wells Fargo Bank, National Association, as revolving credit facility administrative agent.

10.2

 

Fourth Amended and Restated Credit Agreement, dated as of August 5, 2016, as conformed to reflect amendments through Amendment No. 18, dated May 28, 2024, by and among Pactiv Evergreen Group Holdings Inc., Pactiv LLC, Evergreen Packaging LLC, the Registrant, the guarantors from time to time party thereto, the lenders from time to time party thereto and Wells Fargo Bank, National Association, as administrative agent.

99.1

 

Press Release issued by Pactiv Evergreen Inc., dated May 29, 2024.

EX 104

 

Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 


 

SIGNATURES

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

 

Date: May 29, 2024

 

 

PACTIV EVERGREEN INC.

 

 

 

 

 

By:

 

/s/ Chandra J. Mitchell

 

 

 

Chandra J. Mitchell

 

 

 

Chief Legal Officer and Secretary

 

 


EX-10.1

Exhibit 10.1

1

 

SPECIFIED REFINANCING AMENDMENT AND ADMINISTRATIVE AGENCY TRANSFER AGREEMENT (AMENDMENT NO. 18) dated as of May 28, 2024 (this “Agreement”), related to the Fourth Amended and Restated Credit Agreement dated as of August 5, 2016 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”; and as amended by this Agreement, the “Amended Credit Agreement”), by and among Pactiv Evergreen Group Holdings Inc., Pactiv LLC, Evergreen Packaging LLC, Pactiv Evergreen Inc. (“Holdings”), the Guarantors from time to time party thereto, the Lenders from time to time party thereto, Credit Suisse AG, Cayman Islands Branch (“CS”), as Term Loan Facility Administrative Agent (in such capacity, the “Predecessor Term Loan Facility Administrative Agent”) and Wells Fargo Bank, National Association (“Wells Fargo”), as Revolving Credit Facility Administrative Agent and successor Term Loan Facility Administrative Agent (in its capacity as successor Term Loan Facility Administrative Agent, the “Successor Term Loan Facility Administrative Agent”, and in its capacities as Revolving Credit Facility Administrative Agent and successor Term Loan Facility Administrative Agent, the “Administrative Agent”).

A.
Pursuant to Section 2.25 of the Existing Credit Agreement, the U.S. Borrowers have requested that the Existing Credit Agreement be amended in the form of the Amended Credit Agreement to provide for a new tranche of Term Loans constituting Specified Refinancing Term Loans (the “New Term Loan Facility”, and the loans thereunder, the “New Term Loans”), in a single draw in an aggregate principal amount equal to $1,330,000,000, the proceeds of which will be used, together with (x) cash on hand of the Borrowers and (y) the proceeds of Revolving Loans borrowed on the Amendment No. 18 Effective Date (as defined below), (i) to repay in full the Tranche B-3 U.S. Term Loans (as defined in the Existing Credit Agreement, the “Existing 2028 Term Loans”) and the Tranche B-2 U.S. Term Loans (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement immediately prior to the Amendment No. 18 Effective Date and (ii) to pay accrued and unpaid interest, fees, premiums and expenses in connection with the foregoing and in connection with the transactions contemplated by this Agreement. This Agreement also provides for certain other amendments to the Existing Credit Agreement, including Exhibit E to the Existing Credit Agreement, effective as of the Amendment No. 18 Effective Date, as set forth in Section 4 hereof.
B.
Each Lender holding an Existing 2028 Term Loan immediately prior to the effectiveness of this Agreement (each, an “Existing 2028 Term Lender”) that executes and delivers a consent and executed signature page to this Agreement in the form of the “Lender New Commitment” attached to the Election Notice Memorandum posted on LendAmend on May 16, 2024 (a “Lender Consent”) electing the “Cashless Settlement Option” (each, a “Cashless Settlement Term Lender”) will be deemed (i) to have agreed to the terms of this Agreement and the Amended Credit Agreement, (ii) to have agreed to exchange all of its Existing 2028 Term Loans (or such lesser amount allocated to such Lender by Wells Fargo) (as applicable, its “Cashless Settlement Term Loans”) pursuant to that certain Cashless Settlement of Existing Loans letter, dated as of May 28, 2024, among Holdings, the U.S. Borrowers, the Guarantors, the

 

 


2

New Term Lender (as defined below), the Predecessor Term Facility Administrative Agent and the Administrative Agent (the “Cashless Settlement Letter”) for New Term Loans in an equal principal amount and (iii) on the Amendment No. 18 Effective Date, to have exchanged its Cashless Settlement Term Loans for New Term Loans in an equal principal amount to such Cashless Settlement Term Loans.
C.
Each Existing 2028 Term Lender that executes a Lender Consent electing the “Assignment Settlement Option” (each, a “Cash Settlement Term Lender” and, together with the Cashless Settlement Term Lenders, the “Exchanging Term Lenders”) will be deemed (i) to have agreed to the terms of this Agreement and the Amended Credit Agreement and (ii) to have agreed to (x) have all of its Existing 2028 Term Loans (its “Cash Settlement Term Loans”) prepaid by the U.S. Borrowers on the Amendment No. 18 Effective Date and (y) purchase by assignment New Term Loans in an equal principal amount to such Cash Settlement Term Loans (or such lesser amount allocated to such Lender by Wells Fargo) from the New Term Lender pursuant to procedures separately agreed between the New Term Lender and such Cash Settlement Term Lender.
D.
Each Person that executes and delivers a signature page to this Agreement in the capacity of a “New Term Lender” (each, a “New Term Lender” and, together with the Exchanging Term Lenders, the “New B-4 Term Lenders”) will be deemed (i) to have agreed to the terms of this Agreement and the Amended Credit Agreement and (ii) to have committed to make, and confirms that it is prepared to provide, New Term Loans to the U.S. Borrowers on the Amendment No. 18 Effective Date, in an amount equal to its commitment to provide such Loans as set forth on Schedule I hereto, subject to the terms and conditions set forth herein.
E.
Each Revolving Lender that executes and delivers a signature page to this Agreement (each, a “Consenting Revolving Lender”) will be deemed to have agreed to the terms of this Agreement and the Amended Credit Agreement.
F.
(i) CS desires to resign in its capacity as Term Loan Facility Administrative Agent under the Existing Credit Agreement, (ii) pursuant to Section 9.08 of the Existing Credit Agreement, the New B-4 Term Lenders and the Consenting Revolving Lenders (who collectively constitute the Required Lenders) desire to appoint Wells Fargo as the Term Loan Facility Administrative Agent under the Amended Credit Agreement and (iii) in connection with said resignation of CS, CS will assign all of its duties, rights and powers in, to and under the Existing Credit Agreement, solely to the extent they relate to the administration of the Term Loans, to Wells Fargo, and Wells Fargo will accept such assignment, in each case pursuant to the terms hereof.
G.
The establishment of the New Term Loan Facility, the resignation of CS as Term Loan Facility Administrative Agent, the appointment of Wells Fargo as successor Term Loan Facility Administrative Agent and the execution, delivery and performance by the Loan Parties of this Agreement and the payment of fees and expenses incurred in connection with the foregoing are collectively referred to herein as the “2024 Term Loan Transactions”.
H.
Capitalized terms used but not defined herein shall have the meanings assigned to them in the Amended Credit Agreement.

 


3

Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1.
Defined Terms; Interpretation; Etc. The rules of construction set forth in Section 1.02 of the Amended Credit Agreement shall apply to this Agreement as if the references in such Section to “this Agreement” or “herein” were to this Agreement. This Agreement shall be a “Loan Document” and a “Specified Refinancing Amendment” for all purposes of the Amended Credit Agreement and the other Loan Documents.
SECTION 2.
Cashless Settlement Term Loans; Cash Settlement Term Loans; Agreement to make New Term Loans. (a) As of the Amendment No. 18 Effective Date, subject to the terms and conditions set forth herein, each Cashless Settlement Term Lender agrees that its Cashless Settlement Term Loans shall be exchanged for New Term Loans of an equivalent principal amount through a cashless rollover, as selected by such Cashless Settlement Term Lender in its Lender Consent. For all purposes of the Loan Documents, such exchange shall be deemed to constitute the making of New Term Loans by each Cashless Settlement Term Lender in such principal amount.
(b)
Subject to the terms and conditions set forth herein, each Cash Settlement Term Lender agrees that its Cash Settlement Term Loans shall be prepaid in cash by the U.S. Borrowers on the Amendment No. 18 Effective Date, and on or after the Amendment No. 18 Effective Date such Cash Settlement Term Lender shall purchase by assignment New Term Loans in a principal amount equal to such Cash Settlement Term Loans (or such lesser amount allocated to such Lender by Wells Fargo) from the New Term Lender.
(c)
Subject to the terms and conditions set forth herein, each U.S. Borrower agrees that the aggregate principal amount of Existing 2028 Term Loans that are not exchanged pursuant to Section 2(a) and the entire principal amount of Tranche B-2 U.S. Term Loans will in each case be prepaid in cash on the Amendment No. 18 Effective Date.
(d)
Each New Term Lender severally agrees to make to the U.S. Borrowers on the Amendment No. 18 Effective Date New Term Loans in a single drawing in an aggregate principal amount equal to the amount set forth opposite such New Term Lender’s name on Schedule I, which New Term Loans shall, together with the New Term Loans issued in exchange for Cashless Settlement Term Loans pursuant to Section 2(a), be deemed to be incurred pursuant to a single borrowing and constitute a single Class of New Term Loans. The commitments of each New Term Lender shall terminate at 5:00 p.m. (New York City time) on the Amendment No. 18 Effective Date.
(e)
Each U.S. Borrower agrees to pay, on the Amendment No. 18 Effective Date, to the Predecessor Term Loan Facility Administrative Agent, (i) for the account of each Existing 2028 Term Lender as of the Amendment No. 18 Effective Date, all accrued and unpaid interest on the Existing 2028 Term Loans as of but not including the Amendment No. 18 Effective Date (the “Existing 2028 Term Loan Interest Payment”) and (ii) for the account of each Tranche B-2 U.S. Term Lender (as defined in the Existing Credit Agreement) as of the Amendment No. 18 Effective Date, all accrued and unpaid interest on

 


4

the Tranche B-2 U.S. Term Loans as of but not including the Amendment No. 18 Effective Date (the “Tranche B-2 U.S. Term Loan Interest Payment”, and together with the Existing 2028 Term Loan Interest Payment, the “Term Loan Interest Prepayment”).
(f)
Unless the context shall otherwise require, (i) the New Term Loans shall constitute “Specified Refinancing Term Loans”, “Term Loans” and “Loans” and (ii) each New Term Lender shall constitute a “U.S. Term Lender”, a “Term Lender” and a “Lender”, in each case, for all purposes of the Amended Credit Agreement and the other Loan Documents. The New Term Loans shall have the same terms as the Existing 2028 Term Loans outstanding immediately prior to the Amendment No. 18 Effective Date, other than to the extent expressly provided in this Agreement and the Amended Credit Agreement.
SECTION 3.
Resignation and Appointment of the Term Loan Facility Administrative Agent.
(a)
Effective as of the Amendment No. 18 Effective Date, (i) CS hereby resigns as the Term Loan Facility Administrative Agent under the Existing Credit Agreement, (ii) the New B-4 Term Lenders and the Consenting Revolving Lenders (who collectively constitute the Required Lenders) hereby appoint Wells Fargo as successor Term Loan Facility Administrative Agent, (iii) Wells Fargo hereby accepts the appointment to act as Term Loan Facility Administrative Agent, (iv) except to the extent expressly provided otherwise in this Section 3, the Successor Term Loan Facility Administrative Agent hereby succeeds to and becomes vested with all the rights, powers, privileges and duties of the Predecessor Term Loan Facility Administrative Agent with respect to the term loan facilities under the Amended Credit Agreement and the other Loan Documents, (v) the Predecessor Term Loan Facility Administrative Agent is hereby discharged from all of its duties and obligations as Term Loan Facility Administrative Agent under the Existing Credit Agreement and the other Loan Documents, except with respect to the Predecessor Term Loan Facility Administrative Agent’s obligations under this Agreement and (vi) the distinction established in Amendment No. 17 to the Existing Credit Agreement between the Revolving Credit Facility Administrative Agent and the Term Loan Facility Administrative Agent shall be discontinued and there shall be a single agent under the Amended Credit Agreement in respect of all Classes now existing and hereafter established thereunder.
(b)
It is understood and agreed that (i) Wells Fargo shall bear no liability or responsibility for any actions taken or omitted to be taken by CS while CS served as the Term Loan Facility Administrative Agent under the Existing Credit Agreement, or for any other event or action related to the Existing Credit Agreement or the other Loan Documents that occurred in respect of any Term Loans prior to the Amendment No. 18 Effective Date and (ii) CS shall bear no liability or responsibility for any actions taken or omitted to be taken by Wells Fargo while Wells Fargo is serving as the Term Loan Facility Administrative Agent under the Amended Credit Agreement, or for any other event or action related to the administration of the Amended Credit Agreement that occurs after the Amendment No. 18 Effective Date. The parties hereto acknowledge and agree that, absent its own gross negligence, willful misconduct or bad faith, the Successor Term Loan Facility Administrative Agent shall not be liable for any loss or liability incurred as a consequence of the Successor Term Loan Facility Administrative Agent not having been provided with

 


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all information or documents available to the Predecessor Term Loan Facility Administrative Agent or in the Predecessor Term Loan Facility Administrative Agent’s possession.
(c)
The parties hereto agree that, notwithstanding the resignation of CS as set forth herein, (i) the provisions of Article VIII and Section 9.05 of the Existing Credit Agreement and the equivalent provision of any other Loan Document for the benefit of the Administrative Agent (including the Term Loan Facility Administrative Agent) and its Related Parties (as defined in the Existing Credit Agreement) (such provisions collectively, the “Agent Provisions”) shall, in each case, continue in effect for the benefit of the Predecessor Term Loan Facility Administrative Agent and its Related Parties (each, an “Indemnified Predecessor Term Loan Facility Administrative Agent Party”) to the extent provided for in the Agent Provisions in respect of any actions taken or omitted to be taken by any of them, whether taken before, on or after the date of this Agreement, while it or they were acting as, or on behalf of or for the benefit of, or in fulfilling CS’s role as, the Term Loan Facility Administrative Agent and in respect of any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements that may be incurred by or asserted against any Indemnified Predecessor Term Loan Facility Administrative Agent Party in connection therewith and (ii) all references in such provisions to the Administrative Agent (including the Term Loan Facility Administrative Agent) shall be deemed to include CS as Predecessor Term Loan Facility Administrative Agent. It is understood and agreed that, for purposes of the foregoing provisions of this Section 3(c), references to any Agent Provision, including the defined terms used therein, shall be deemed to refer to such Agent Provision without giving effect to any amendment, waiver or other modification thereof after the Amendment No. 18 Effective Date.
(d)
Each of the U.S. Borrowers, each Guarantor and CS hereby expressly agrees and acknowledges that the Successor Term Loan Facility Administrative Agent, in its capacity as such, is not hereby assuming any liability (i) under or related to the Existing Credit Agreement, the Amended Credit Agreement or any other Loan Document prior to the Amendment No. 18 Effective Date and (ii) for any and all claims under or related to the Existing Credit Agreement, the Amended Credit Agreement or any of the other Loan Documents that may have arisen or accrued prior to the Amendment No. 18 Effective Date. Without limiting the generality of the Agent Provisions, each of the U.S. Borrowers and each Guarantor hereby expressly agrees and confirms that the Successor Term Loan Facility Administrative Agent and its Related Parties shall be entitled to the benefits of the Agent Provisions, including the indemnities, expense reimbursement and exculpatory provisions set forth therein, with respect to any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements, that may be incurred by or asserted against the Successor Term Loan Facility Administrative Agent or any of its Related Parties in connection with actions taken or omitted to be taken by the Predecessor Term Loan Facility Administrative Agent or any of its Related Parties prior to the Amendment No. 18 Effective Date, to the extent provided for in the Agent Provisions.
(e)
The Successor Term Loan Facility Administrative Agent shall be entitled to conclusively rely upon, and shall not incur any liability for relying upon, the

 


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records and other information supplied to it by the U.S Borrowers, the Guarantors or the Predecessor Term Loan Facility Administrative Agent.
(f)
The parties hereto acknowledge and agree that neither the Predecessor Term Loan Facility Administrative Agent nor any of its Related Parties has made any representation or warranty with respect to (i) any recital, statement, information, warranty or representation made or delivered by any Person in or in connection with this Agreement or any Loan Document (other than as set forth in Section 6), (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document (other than, in each case prior to the Amendment No. 18 Effective Date, the covenants and agreements of the Predecessor Term Loan Facility Administrative Agent in its capacity as such), (iv) the U.S. Borrowers, the Guarantors or any Obligations, (v) the legality, validity, sufficiency, collectability, enforceability, effectiveness or genuineness of this Agreement, any Loan Document, any Obligations or any other agreement, instrument or document, or (vi) the assets, liabilities, condition (financial or otherwise), results of operations, business, creditworthiness or legal status of the U.S. Borrowers, the Guarantors or any of their Related Parties. The Successor Term Loan Facility Administrative Agent acknowledges that it has, independently and without reliance on the Predecessor Term Loan Facility Administrative Agent and its Related Parties, made its own decision to enter into this Agreement and the transactions contemplated hereby.
(g)
The parties hereto acknowledge and agree that the Successor Term Loan Facility Administrative Agent (i) has not undertaken any analysis of the Existing Credit Agreement or the other Loan Documents, (ii) has not made an independent investigation as to the completeness or accuracy of the information delivered to it by the U.S. Borrowers, the Guarantors or the Predecessor Term Loan Facility Administrative Agent, whether prior to, on or after the date hereof, and may conclusively rely thereon for all purposes under the Existing Credit Agreement, the Amended Credit Agreement and the other Loan Documents and (iii) has made no determination, and makes no representation and warranty, with respect to (A) any recital, statement, information, warranty or representation made or delivered by any Person in or in connection with this Agreement or any other Loan Document (other than as set forth in Section 6), (B) the contents of any certificate, report or other document delivered hereunder or in connection with any other Loan Document, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document (other than any covenants and agreements of the Successor Term Loan Facility Administrative Agent in its capacity as such), (D) the U.S. Borrowers, the Guarantors or any Obligations, (E) the legality, validity, sufficiency, enforceability, effectiveness or genuineness of this Agreement, any Loan Document, any Obligations or any other agreement, instrument or document, or (F) the assets, liabilities, condition (financial or otherwise), results of operations, business, creditworthiness or legal status of the U.S. Borrowers, the Guarantors or any of their Related Parties.
(h)
All provisions of the Loan Documents providing for the payment of fees and expenses of, and providing for indemnities or exculpation for the benefit of, the

 


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Administrative Agent (including the Term Loan Facility Administrative Agent) shall remain in full force and effect for the benefit of the Successor Term Loan Facility Administrative Agent and the Predecessor Term Loan Facility Administrative Agent (in the case of the Predecessor Term Loan Facility Administrative Agent, as set forth in Section 3(c) hereof). In addition, Holdings and the U.S. Borrowers agree to pay all reasonable out-of-pocket expenses incurred by the Successor Term Loan Facility Administrative Agent or the Predecessor Term Loan Facility Administrative Agent (including the fees, charges and disbursements of counsel) in connection with the negotiation, preparation, execution and delivery of this Agreement or any related documents.
(i)
Without limiting their obligations in any way under any Loan Document, each of the U.S. Borrowers and each Guarantor (i) consents to the substitution of the Successor Term Loan Facility Administrative Agent (and the consolidation of the administrative agent function as provided for herein) under the Amended Credit Agreement and the other Loan Documents, (ii) reaffirms and acknowledges its obligations to the Administrative Agent (including the Successor Term Loan Facility Administrative Agent) with respect to the Amended Credit Agreement and the other Loan Documents and (iii) agrees to (A) execute and deliver all documents and take all other commercially reasonable actions as may be requested by the Successor Term Loan Facility Administrative Agent or the Predecessor Term Loan Facility Administrative Agent in order to evidence or effect the resignation and appointment described herein and the other matters covered hereby, including the transfer of the rights, powers and duties of the Predecessor Term Loan Facility Administrative Agent under the Amended Credit Agreement and the other Loan Documents to the Successor Term Loan Facility Administrative Agent, and (B) take all actions as may be reasonably requested by the Successor Term Loan Facility Administrative Agent to facilitate the transfer of information to the Successor Term Loan Facility Administrative Agent in connection with the Amended Credit Agreement and the other Loan Documents, at the sole cost and expense of the U.S. Borrowers.
(j)
The Predecessor Term Loan Facility Administrative Agent agrees to execute and deliver all documents and take all other commercially reasonable actions (including any actions to facilitate the transfer of information to the Successor Term Loan Facility Administrative Agent in connection with the Amended Credit Agreement and the other Loan Documents) as may be requested by the Successor Term Loan Facility Administrative Agent in order to evidence or effect the resignation and appointment described herein and the other matters covered hereby, including the transfer of the rights, powers and duties of the Predecessor Term Loan Facility Administrative Agent under the Amended Credit Agreement and the other Loan Documents to the Successor Term Loan Facility Administrative Agent, in each case at the sole cost and expense of the U.S. Borrowers; provided that any document, instrument or agreement to be furnished or executed by, or other action to be taken by, the Predecessor Term Loan Facility Administrative Agent shall be reasonably satisfactory to it, and the Predecessor Term Loan Facility Administrative Agent shall be reasonably satisfied that the delivery of any information requested of it would not breach any confidentiality restrictions binding on it. Without limiting the foregoing, the Predecessor Term Loan Facility Administrative Agent agrees to promptly deliver or cause to be delivered to the Successor Term Loan Facility Administrative Agent copies of any written notices or documents delivered by the U.S.

 


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Borrowers or the Guarantors to the Predecessor Term Loan Facility Administrative Agent in its capacity as such, or by the Predecessor Term Loan Facility Administrative Agent in its capacity as such to the U.S. Borrowers or the Guarantors, in each case, pursuant to the Amended Credit Agreement or any other Loan Document, that are received on or after the date hereof; provided that the failure of the Predecessor Term Loan Facility Administrative Agent to so deliver, or cause to be delivered, any such notice shall not be a breach of this Agreement or result in any liability of the Predecessor Term Loan Facility Administrative Agent to the Successor Term Loan Facility Administrative Agent, the U.S. Borrowers, the Guarantors or any other Person.
(k)
Each of the U.S. Borrowers and each Guarantor hereby consents to all actions taken by the Predecessor Term Loan Facility Administrative Agent and the Successor Term Loan Facility Administrative Agent in accordance with this Agreement.
(l)
The U.S. Borrowers and each Guarantor shall indemnify the Predecessor Term Loan Facility Administrative Agent, the Successor Term Loan Facility Administrative Agent and each Related Party of the Predecessor Term Loan Facility Administrative Agent or the Successor Term Loan Facility Administrative Agent (each such Person, an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements that may be incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of (i) executing any documents requested by the Successor Term Loan Facility Administrative Agent to transfer the rights and privileges of the Predecessor Term Loan Facility Administrative Agent under the Amended Credit Agreement and the other Loan Documents to the Successor Term Loan Facility Administrative Agent, (ii) taking any action to facilitate the transfer of information to the Successor Term Loan Facility Administrative Agent in connection with the Amended Credit Agreement and the other Loan Documents, (iii) the performance by the Predecessor Term Loan Facility Administrative Agent or the Successor Term Loan Facility Administrative Agent or their respective Related Parties of their respective obligations hereunder and (iv) any claim, litigation, investigation or proceeding relating to any of the foregoing; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities, penalties and related reasonable out-of-pocket expenses are determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. This Section 3(l) is in addition to, and shall not limit, the obligations of the U.S. Borrowers and the Guarantors contained in the Agent Provisions or Section 3(c) hereof.
(m)
Each of the U.S. Borrowers and each Guarantor hereby unconditionally and irrevocably waives, releases, acquits and discharges all claims, suits, debts, liens, losses, causes of action, demands, rights, damages or costs, or expenses of any kind, character or nature whatsoever, known or unknown, fixed or contingent, which it may have or claim to have against CS and its Related Parties to the extent arising out of or in connection with CS’s performance as Term Loan Facility Administrative Agent under the Existing Credit Agreement and the other Loan Documents prior to the Amendment No. 18 Effective Date (collectively, the “Claims”), including, without limitation, CS’s resignation

 


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as Term Loan Facility Administrative Agent hereunder. Each of the U.S. Borrowers and each Guarantor further agrees forever to refrain from commencing, instituting or prosecuting any lawsuit, action, claim or other proceeding against CS or any of its Related Parties with respect to any and all of the foregoing described waived, released, acquitted and discharged Claims. Each of CS’s Related Parties shall be a third-party beneficiary of this Section 3(m).
SECTION 4.
Amendments to Existing Credit Agreement. Effective as of the Amendment No. 18 Effective Date, the Existing Credit Agreement, including Exhibit E to the Existing Credit Agreement, is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text or stricken text) and to add the underlined text (indicated textually in the same manner as the following example: underlined text or double-underlined text) as set forth in the pages thereof attached as Exhibit A and Exhibit B hereto.
SECTION 5.
Effectiveness of New Term Loan Facility and Effectiveness of Agreement. The effectiveness of this Agreement, including the resignation of CS as Term Loan Facility Administrative Agent, the appointment of Wells Fargo as successor Term Loan Facility Administrative Agent, the agreements of the New B-4 Term Lenders and the Consenting Revolving Lenders hereunder and the agreements of the New Term Lender to provide New Term Loans hereunder, shall be subject to the satisfaction of the following conditions precedent (the date (which must be a Business Day) on which such conditions precedent are satisfied or waived by the New B-4 Term Lenders and the Consenting Revolving Lenders being referred to herein as the Amendment No. 18 Effective Date”):
(a)
The Administrative Agent shall have received counterparts of this Agreement and Lender Consents that, when taken together, bear the signatures of (i) each Loan Party, (ii) the Predecessor Term Loan Facility Administrative Agent, (iii) the Administrative Agent, (iv) each New Term Lender and (v) the Required Lenders (it being acknowledged that the New B-4 Term Lenders and the Consenting Revolving Lenders, collectively, constitute the Required Lenders).
(b)
Subject to the Agreed Security Principles, on the Amendment No. 18 Effective Date, each of the conditions set forth in paragraphs (b) and (c) of Section 4.01 of the Amended Credit Agreement shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of Holdings; provided that, for purposes of determining the satisfaction of the condition set forth in paragraph (b) of Section 4.01 of the Amended Credit Agreement, each reference in the representation set forth in Section 3.22 of the Amended Credit Agreement to the 2016 Restatement Transactions and the 2016 Restatement Date shall be deemed to be a reference to the 2024 Term Loan Transactions and the Amendment No. 18 Effective Date, respectively.
(c)
Subject to the Agreed Security Principles, the Administrative Agent shall have received legal opinions, corporate authorizations and closing certificates (similar in type to those described in clauses (i), (ii), (iii) and (iv) of Section 4.02(c) of the Existing Credit Agreement) reasonably requested by the Administrative Agent for each Loan Party.

 


10

(d)
The Predecessor Term Loan Facility Administrative Agent shall have received (i) a notice of prepayment of all Existing 2028 Term Loans outstanding prior to the Amendment No. 18 Effective Date, (ii) a notice of prepayment of all Tranche B-2 U.S. Term Loans outstanding prior to the Amendment No. 18 Effective Date and (iii) a borrowing notice in respect of the New Term Loans.
(e)
(i) The Predecessor Term Loan Facility Administrative Agent shall have received from the U.S. Borrowers the Term Loan Interest Payment and (ii) the Administrative Agent shall have received from Holdings or the U.S. Borrowers, as applicable, all fees and other amounts due and payable on or prior to the Amendment No. 18 Effective Date in connection with the 2024 Term Loan Transactions and, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the U.S. Borrowers hereunder or under any other Loan Document.
(f)
The Bank of New York Mellon, in its capacity as Collateral Agent, and each Loan Party shall have executed and delivered to the Administrative Agent a reaffirmation agreement (the “Reaffirmation Agreement”), substantially in the form attached hereto as Exhibit C, and other amendments, supplements and confirmations of existing Loan Documents reasonably requested by the Administrative Agent (it being understood that the documentation required to be delivered shall, in any event, be no more onerous to Holdings and the Subsidiaries than the documentation required to be delivered in connection with the 2021 Specified Refinancing and Incremental Amendment), in each case subject to the Agreed Security Principles and with any modifications necessary to reflect the 2024 Term Loan Transactions and such other modifications that are reasonably satisfactory to Holdings and the Administrative Agent.
(g)
(i) The Administrative Agent shall have received all documentation and other information about the Loan Parties reasonably requested by the Administrative Agent (on behalf of itself or of the Lenders) in writing at least five Business Days in advance of the Amendment No. 18 Effective Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”) and (ii) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Amendment No. 18 Effective Date, any Lender that has requested, in a written notice to the U.S. Borrowers at least five days prior to the Amendment No. 18 Effective Date, a certification regarding beneficial ownership under the Beneficial Ownership Regulation in relation to the U.S. Borrowers shall have received such certification.
SECTION 6.
Representations and Warranties. To induce the other parties hereto to enter into this Agreement, each Loan Party party hereto, the Predecessor Term Loan Facility Administrative Agent and the Administrative Agent each represents and warrants to the other parties hereto, with respect to itself, that, as of the Amendment No. 18 Effective Date, this Agreement has been duly authorized, executed and delivered by such party and, subject to the

 


11

Legal Reservations, constitutes a legal, valid and binding obligation of such party enforceable against such party in accordance with its terms.
SECTION 7.
Effect of Agreement. Except as expressly set forth herein, this Agreement shall not, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders, the Predecessor Term Loan Facility Administrative Agent, the Administrative Agent or the Collateral Agent under the Amended Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document, all of which shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Amended Credit Agreement or any other Loan Document in similar or different circumstances. After the date hereof, any reference in any Loan Document to the Amended Credit Agreement shall be deemed to refer without further amendment to the Amended Credit Agreement as modified hereby.
SECTION 8.
Consent. Each Loan Party hereby consents to this Agreement and the transactions contemplated hereby.
SECTION 9.
[reserved.]
SECTION 10.
Notices. All notices hereunder shall be given in accordance with the provisions of Section 9.01 of the Amended Credit Agreement.
SECTION 11.
Counterparts. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. Any signature to this Agreement may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this Agreement. Each of the parties to this Agreement represents and warrants to the other parties that it has the corporate capacity and authority to execute this Agreement through electronic means and there are no restrictions for doing so in that party’s constitutive documents.
SECTION 12.
Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 13.
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO

 


12

REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.
SECTION 14.
Jurisdiction; Consent to Service of Process.
(a)
Each Loan Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York state court or Federal court of the United States of America sitting in the Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Predecessor Term Loan Facility Administrative Agent, the Administrative Agent, the Collateral Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against any Borrower, Holdings or their respective properties in the courts of any jurisdiction.
(b)
Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New York State or Federal court located in the Borough of Manhattan. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c)
Each party to this Agreement irrevocably, to the extent permitted under applicable law, consents to service of process in the manner provided for notices in Section 9.01 of the Amended Credit Agreement. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 15.
Waivers; Amendment. Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the U.S. Borrowers and each of the New Term Lenders; provided, however, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Predecessor Term Loan Facility Administrative Agent or the Administrative Agent without the prior written consent of the Predecessor Term Loan Facility Administrative Agent or the Administrative Agent, as the case may be.
SECTION 16.
Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

 


13

SECTION 17.
Required Lender Direction. The New B-4 Term Lenders and the Consenting Revolving Lenders (who collectively constitute the Required Lenders) hereby direct the Administrative Agent to instruct the Collateral Agent to execute and deliver the mortgage releases described in Exhibit D. All rights, protections, indemnities and benefits granted to the Administrative Agent in the Amended Credit Agreement are hereby reaffirmed with respect to its actions taken pursuant to this Agreement (including this Section 17) and incorporated as if fully set forth in this Agreement (and without limiting the foregoing, (x) each U.S. Borrower specifically reaffirms its obligations under Section 9.05(b) of the Amended Credit Agreement and (y) the Lenders party to this Agreement specifically reaffirm their several obligations under Section 9.05(c) of the Amended Credit Agreement).

[Remainder of page intentionally left blank]

 


 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

PACTIV EVERGREEN GROUP HOLDINGS INC.

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

PACTIV LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

Evergreen packaging LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

PACTIV EVERGREEN INC.

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: Chief Legal Officer and Secretary

 

 

Blue Ridge Paper Products LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


15

Evergreen Packaging International LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

Fabri-Kal LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

Pactiv Europe Services LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

Pactiv Evergreen Group Issuer Inc.

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

Pactiv Evergreen Group Issuer LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


16

Pactiv Evergreen Services Inc.

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

Pactiv Packaging Inc.

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

PCA West Inc.

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

PEI Holdings Company LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

Pure Pulp Products LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

 

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


17

Reynolds Packaging International LLC

by

 

/s/ Chandra J. Mitchell

 

Name: Chandra J. Mitchell

 

Title: VP, General Counsel and Secretary

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


 

 

CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as the Predecessor Term Loan Facility Administrative Agent

 

by

 

/s/ Markus Lammer

 

Name: Markus Lammer

 

Title: Authorized Signatory

 

by

 

/s/ Cassandra Droogan

 

Name: Cassandra Droogan

 

Title: Authorized Signatory

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]

 

 


 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Administrative Agent and as a New Term Lender,

by

 

/s/ Adam Spreyer

 

Name: Adam Spreyer

 

Title: Managing Director

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]

 

 


20

BANK OF AMERICA, N.A., as a Consenting Revolving Lender,

by

 

/s/ Erron Powers

 

Name: Erron Powers

 

Title: Director

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


21

Citibank N.A., as a Consenting Revolving Lender,

by

 

/s/ Sumeet Singal

 

Name: Sumeet Singal

 

Title: Managing Director

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


22

 

Goldman Sachs Bank USA, as a Consenting Revolving Lender,

by

 

/s/ Thomas Manning

 

Name: Thomas Manning

 

Title: Authorized Signatory

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


23

HSBC BANK USA, NATIONAL ASSOCIATION, as a Consenting Revolving Lender,

by

 

/s/ Matthew McLaurin

 

Name: Matthew McLaurin

 

Title: Director

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


24

JPMORGAN CHASE BANK, N.A., as a Consenting Revolving Lender,

by

 

/s/ Jacqueline Panos

 

Name: Jacqueline Panos

 

Title: Vice President

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


25

COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as a Consenting Revolving Lender,

by

 

/s/ Michael Falter

 

Name: Michael Falter

 

Title: Managing Director

 

by

 

/s/ Regan Rybarczyk

 

Name: Regan Rybarczyk

 

Title: Vice President

 

 

 

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


26

UBS AG, STAMFORD BRANCH, as a Consenting Revolving Lender,

by

 

/s/ Muhammad Afzal

 

Name: Muhammad Afzal

 

Title: Director

 

by

 

/s/ Peter Hazoglou

 

Name: Peter Hazoglou

 

Title: Director

 

 

 

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


27

BMO Bank N.A., as a Consenting Revolving Lender,

by

 

/s/ Thomas Hasenauer

 

Name: Thomas Hasenauer

 

Title: Managing Director

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


28

BNP Paribas, as a Consenting Revolving Lender,

by

 

/s/ Bilal Nizami

 

Name: Bilal Nizami

 

Title: Director

 

by

 

/s/ Zoe Lin

 

Name: Zoe Lin

 

Title: Vice President

 

 

 

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


29

Sumitomo Mitsui Banking Corporation, as a Consenting Revolving Lender,

by

 

/s/ Rosa Pritsch

 

Name: Rosa Pritsch

 

Title: Director

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


30

The Toronto-Dominion Bank, New York Branch, as a Consenting Revolving Lender,

by

 

/s/ Emily Chott

 

Name: Emily Chott

 

Title: Authorized Signatory

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


31

Truist Bank, as a Consenting Revolving Lender,

by

 

/s/ Christian Jacobsen

 

Name: Christian Jacobsen

 

Title: Director

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


32

KeyBank National Association, as a Consenting Revolving Lender,

by

 

/s/ Michael G Kousaie

 

Name: Michael G Kousaie

 

Title: Vice President

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


33

Capital One, N.A., as a Consenting Revolving Lender,

by

 

/s/ Madeline Cassidy

 

Name: Madeline Cassidy

 

Title: Duly Authorized Signatory

 

 

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]


 

[EXCHANGING TERM LENDER SIGNATURE PAGES ON FILE WITH THE ADMINISTRATIVE AGENT]

[Signature Page to Specified Refinancing Amendment and Administrative Agency Transfer Agreement]

 

 


SCHEDULE I

 

 

 

 

 

New Term Lender

New Term Lender

New Term Loan Commitments

wells fargo bank, national association

$372,119,722.80

TOTAL

$372,119,722.80

 

 

 

 


EXHIBIT A

As amended by Amendment No. 18 dated as of May 28, 2024

 

The Amended Credit Agreement

 

 

 


 

 

 

FOURTH AMENDED AND RESTATED CREDIT AGREEMENT

dated as of August 5, 2016

 

among

 

PACTIV EVERGREEN GROUP HOLDINGS INC.,

PACTIV LLC

 

and

 

the other Borrowers set forth herein,

as Borrowers,

 

PACTIV EVERGREEN INC.,

 

THE LENDERS PARTY HERETO,

 

CREDIT SUISSE AG,

as Term Loan Facility Administrative Agent

and

 

Wells Fargo Bank, National Association,
as
Revolving Credit Facility Administrative Agent

 

 

 

 

ii


 

Table of Contents

Page

 

ARTICLE I

Definitions

SECTION 1.01. Defined Terms 2

SECTION 1.02. Terms Generally 6867

SECTION 1.03. Pro Forma Calculations 6968

SECTION 1.04. Classification of Loans and Borrowings 6968

SECTION 1.05. Exchange Rate Calculations 69Rates; Currency Equivalents 68

SECTION 1.06. Designation as Senior Debt 7069

SECTION 1.07. Limited Condition Acquisitions 7069

ARTICLE II

The Credits

SECTION 2.01. Commitments 7170

SECTION 2.02. Loans 7170

SECTION 2.03. Borrowing Procedure 7473

SECTION 2.04. Evidence of Debt; Repayment of Loans 7473

SECTION 2.05. Fees 7574

SECTION 2.06. Interest on Loans 7675

SECTION 2.07. Default Interest 7776

SECTION 2.08. Alternate Rate of Interest 7776

SECTION 2.09. Termination and Reduction of Commitments 8079

SECTION 2.10. Conversion and Continuation of Borrowings 8079

SECTION 2.11. Repayment of Term Borrowings 8281

SECTION 2.12. Voluntary Prepayment 8382

SECTION 2.13. Mandatory Prepayments 8685

i

 

 

 


 

Table of Contents

Page

 

SECTION 2.14. Reserve Requirements; Change in Circumstances 8988

SECTION 2.15. Change in Legality 9190

SECTION 2.16. Breakage 9190

SECTION 2.17. Pro Rata Treatment 9291

SECTION 2.18. Sharing of Setoffs 9291

SECTION 2.19. Payments 9392

SECTION 2.20. Taxes 9392

SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate 9796

SECTION 2.22. Letters of Credit 9998

SECTION 2.23. Incremental Term Loans and Incremental Revolving Credit Commitments 105104

SECTION 2.24. Loan Modification Offers 108

SECTION 2.25. Specified Refinancing Facilities 109108

SECTION 2.26. Permitted Debt Exchanges 111

ARTICLE III

Representations and Warranties

SECTION 3.01. Organization; Powers 114113

SECTION 3.02. Authorization 114113

SECTION 3.03. Enforceability 115114

SECTION 3.04. Governmental Approvals 115114

SECTION 3.05. Financial Statements 115114

SECTION 3.06. No Material Adverse Change 115

SECTION 3.07. Title to Properties; Possession Under Leases 115

SECTION 3.08. Subsidiaries 116115

ii


 

Table of Contents

Page

 

SECTION 3.09. Litigation; Compliance with Laws 116115

SECTION 3.10. Agreements 117116

SECTION 3.11. Federal Reserve Regulations 117116

SECTION 3.12. Investment Company Act 117116

SECTION 3.13. Use of Proceeds 117116

SECTION 3.14. Taxes 117

SECTION 3.15. No Material Misstatements 118117

SECTION 3.16. Employee Benefit Plans 118117

SECTION 3.17. Environmental Matters 119118

SECTION 3.18. Insurance 119118

SECTION 3.19. Security Documents 119

SECTION 3.20. Location of Real Property and Leased Premises 121120

SECTION 3.21. Labor Matters 121120

SECTION 3.22. Solvency 121120

SECTION 3.23. Senior Indebtedness 121

SECTION 3.24. Sanctioned Persons 122Sanctions 121

SECTION 3.25. Anti-Money Laundering and Anti-Corruption Laws 121

ARTICLE IV

Conditions of Lending

SECTION 4.01. All Credit Events 122121

ARTICLE V

Affirmative Covenants

SECTION 5.01. Existence; Compliance with Laws; Businesses and Properties 123122

SECTION 5.02. Insurance 123

iii


 

Table of Contents

Page

 

SECTION 5.03. Taxes 124

SECTION 5.04. Financial Statements, Reports, etc 124

SECTION 5.05. Litigation and Other Notices 126

SECTION 5.06. Information Regarding Collateral 127126

SECTION 5.07. Maintaining Records; Access to Properties and Inspections; Maintenance of Ratings 127

SECTION 5.08. Use of Proceeds 128127

SECTION 5.09. Employee Benefits 128

SECTION 5.10. Compliance with Environmental Laws 128

SECTION 5.11. Preparation of Environmental Reports 128

SECTION 5.12. Further Assurances 129128

SECTION 5.13. Post-Closing Obligations 130

SECTION 5.14. Compliance with Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions 130

ARTICLE VI

Negative Covenants

SECTION 6.01. Indebtedness 130

SECTION 6.02. Liens 136135

SECTION 6.03. Sale and Lease-Back Transactions 139

SECTION 6.04. Investments, Loans and Advances 139

SECTION 6.05. Mergers, Consolidations and Sales of Assets 144

SECTION 6.06. Restricted Payments; Restrictive Agreements 145

SECTION 6.07. Transactions with Affiliates 148149

SECTION 6.08. Conduct of Business 150

SECTION 6.09. Other Indebtedness and Agreements 150

iv


 

Table of Contents

Page

 

SECTION 6.10. [Reserved]Fiscal Year; etc 151

SECTION 6.11. [Reserved]Agreements for the Benefit of the Revolving Credit Lenders 151

SECTION 6.12. Maximum Total Secured Leverage Ratio 151Further Agreements for the Benefit of all Lenders 152

SECTION 6.13. Fiscal Year 151

ARTICLE VII

Events of Default

ARTICLE VIII

The Administrative Agent and the Collateral Agents

ARTICLE IX

Miscellaneous

SECTION 9.01. Notices; Electronic Communications 160162

SECTION 9.02. Survival of Agreement 162164

SECTION 9.03. [Reserved] 163165

SECTION 9.04. Successors and Assigns 163165

SECTION 9.05. Expenses; Indemnity 170172

SECTION 9.06. Right of Setoff 172174

SECTION 9.07. Applicable Law 172175

SECTION 9.08. Waivers; Amendment 173175

SECTION 9.09. Interest Rate Limitation 174176

SECTION 9.10. Entire Agreement 175177

SECTION 9.11. WAIVER OF JURY TRIAL 175177

SECTION 9.12. Severability 175177

SECTION 9.13. Counterparts 175177

v


 

Table of Contents

Page

 

SECTION 9.14. Headings 175178

SECTION 9.15. Jurisdiction; Consent to Service of Process 176178

SECTION 9.16. Confidentiality 176179

SECTION 9.17. Conversion of Currencies 177179

SECTION 9.18. USA PATRIOT Act Notice 178180

SECTION 9.19. Place of Performance 178180

SECTION 9.20. Acknowledgement and Consent to Bail-In of Affected Financial Institutions 178180

SECTION 9.21. Additional Borrowers; Resignation of Borrowers 180182

SECTION 9.22. Application of Proceeds 181184

SECTION 9.23. Loan Parties’ Agent 182184

SECTION 9.24. [Reserved] 183185

SECTION 9.25. Release or Re-Assignment of Securitization Assets in Connection with a Permitted Receivables Financing 183185

SECTION 9.26. Additional Intercreditor and Security Arrangements 183185

SECTION 9.27. Acknowledgment Regarding Any Supported QFCs 184186

SECTION 9.28. Further Agreement for the Benefit of the Revolving Credit Lenders 184Certain Agreements with respect to Real Property 187

ARTICLE X

Guarantee

SECTION 10.01. Guarantee 185187

SECTION 10.02. Guarantee of Payment 185187

SECTION 10.03. No Discharge or Diminishment of Guarantee 185187

SECTION 10.04. Defenses Waived 186188

SECTION 10.05. Rights of Subrogation 186189

vi


 

Table of Contents

Page

 

SECTION 10.06. Reinstatement; Stay of Acceleration 186189

SECTION 10.07. Information 187189

SECTION 10.08. Maximum Liability 187189

SECTION 10.09. Contribution 187190

SECTION 10.10. Subordination 188190

SECTION 10.11. Liability Cumulative 188190

SECTION 10.12. Release of Guarantors 188190

SECTION 10.13. Keepwell 189191

 

vii


 

SCHEDULES

 

Schedule 1.01(a) - Existing Letters of Credit

Schedule 1.01(b) - [Reserved]

Schedule 1.01(c) - Excluded Subsidiaries

Schedule 1.01(d) - Mortgaged Property

Schedule 1.01(e) - Subsidiary Guarantors

Schedule 2.01 - Lenders and Commitments

Schedule 3.04 - Governmental Approvals

Schedule 3.08 - Subsidiaries

Schedule 3.09 - Litigation

Schedule 3.17 - Environmental Matters

Schedule 3.18 - Insurance

Schedule 3.19(a) - UCC Filing Offices

Schedule 3.19(c) - Post-Closing Mortgage Amendments

Schedule 3.19(d) - Foreign Pledge Agreement Filing Requirements

Schedule 3.20 - Owned Real Property

Schedule 6.01 - Existing Indebtedness

Schedule 6.02 - Existing Liens

Schedule 6.04(l) - Existing Investments

Schedule 6.06(b) - Existing Encumbrances

Schedule 10.03 - Limitations on Guarantees and Certain Waivers

 

EXHIBITS

 

Exhibit A - Form of Administrative Questionnaire

Exhibit B - Form of Assignment and Acceptance

Exhibit C - Form of Borrowing Request

Exhibit D - Form of Guarantor Joinder

Exhibit E - Agreed Security Principles

Exhibit F - U.S. Collateral Agreement

Exhibit G - First Lien Intercreditor Agreement

Exhibit H - Form of Affiliate Subordination Agreement

Exhibit I - Form of Junior Lien Intercreditor Agreement

Exhibit J - [Reserved]

Exhibit K - Form of Compliance Certificate

Exhibit L - [Reserved]

Exhibit M-1 - Form of Borrowing Subsidiary Agreement

Exhibit M-2 - Form of Borrowing Subsidiary Termination

Exhibit N - Form of Additional Bank Secured Party Acknowledgment

 

viii

 

 

 


 

 

FOURTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 5, 2016 (this “Agreement”), among Pactiv evergreen group holdings inc. (formerly Reynolds Group Holdings Inc.), a Delaware corporation (“PEGHI”), PACTIV LLC, a Delaware limited liability company (“Pactiv”), EVERGREEN PACKAGING LLC (formerly Evergreen Packaging Inc.), a Delaware limited liability company (“Evergreen” and, together with PEGHI, and Pactiv, the “U.S. Borrowers” or the “Revolving Borrowers”), PACTIV EVERGREEN INC. (formerly Reynolds Group Holdings Limited), a Delaware corporation (“Holdings”), the Guarantors (such term and each other capitalized term used but not defined in this introductory statement having the meaning given it in Article I), the Lenders, CREDIT SUISSE AG, as administrative agent for the Term Lenders (in such capacity, including any successor thereto, the “Term Loan Facility Administrative Agent”) and Wells Fargo Bank, National Association, as administrative agent for the Revolving Credit Lenders (in such capacity, including any successor thereto, the “Revolving Credit Facility Administrative Agent”).

The Borrowers have requested (a) the U.S. Term Lenders (as defined in Article I) to extend credit in the form of U.S. Term Loans (as defined in Article I) to the U.S. Borrowers on the 2016 Restatement Date, in an aggregate principal amount not in excess of $1,973,000,000, (b) the European Term Lenders (as defined in Article I) to make European Term Loans (as defined in Article I) to the European Borrowers on the 2016 Restatement Date, in an aggregate principal amount not in excess of €250,000,000, (c) the Revolving Credit Lenders (as defined in Article I) to extend credit to the Revolving Borrowers in the form of Revolving Loans from time to time prior to the Revolving Credit Maturity Date in an aggregate principal amount at any time outstanding not in excess of $1,100,000,000 and (d) the Issuing Banks to issue Letters of Credit in an aggregate face amount at any time outstanding not in excess of the aggregate amount of the L/C Commitments at such time. The U.S. Term Lenders, the European Term Lenders, the Revolving Credit Lenders and the Issuing Banks are willing to extend such credit, in each case on the terms and subject to the conditions set forth herein and in Amendment No. 10.

The proceeds of the Term Loans to be made on the 2016 Restatement Date are to be used solely to consummate the 2016 Restatement Transactions and for general corporate purposes of Holdings and the Subsidiaries. The proceeds of the Revolving Loans and any Incremental Term Loans made after the 2016 Restatement Date are to be used solely for general corporate purposes of Holdings and the Subsidiaries. Letters of Credit are to be issued to support payment obligations incurred in the ordinary course of business by the Borrowers and the Subsidiaries of Holdings (including payment obligations with respect to any local working capital facilities (other than the Local Facilities)).

Pursuant to Amendment No. 10, the Borrowers and the Lenders party thereto have agreed to amend and restate the Existing Credit Agreement in the form hereof. The amendment and restatement of the Existing Credit Agreement evidenced by this Agreement shall become effective as provided in Amendment No. 10.

Accordingly, theThe parties hereto agree as follows:

ARTICLE I
Definitions

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:

2007 Intercreditor Agreement” shall mean the Intercreditor Agreement dated May 11, 2007, as amended and restated as of the Closing Date, among Holdings, BP I, the other obligors signatory thereto,

 


 

 

and Credit Suisse AG, on behalf of the senior lenders thereunder, and as senior agent, security trustee and senior issuing bank thereunder.

2016 Incremental U.S. Term Loans” shall mean the Incremental Term Loans made pursuant to the First Incremental Assumption Agreement.

2016 Incremental Term Loans Effective Date” shall mean October 7, 2016, which was the “Effective Date” under and as defined in the First Incremental Assumption Agreement.

2016 Restatement Date” shall mean August 5, 2016, which was the “Effective Date” under and as defined in Amendment No. 10.

2016 Restatement Transactions” shall have the meaning assigned to such term in Amendment No. 10.

2017 Incremental Term Loan Effective Date” shall mean February 7, 2017, which was the “Effective Date” under and as defined in the Second Incremental Assumption Agreement.

2021 Specified Refinancing and Incremental Amendment” shall mean the Specified Refinancing and Incremental Amendment (Amendment No. 14) dated as of September 24, 2021, to this Agreement.

2021 Specified Refinancing and Incremental Amendment Effective Date” shall have the meaning assigned to the term “Effective Date” in the 2021 Specified Refinancing and Incremental Amendment.

2024 Revolving Facility Transactions Amendment” shall mean the Specified Refinancing Amendment, Incremental Amendment and Administrative Agency Transfer Agreement (Amendment No. 17) dated as of May 1, 2024, among the Revolving Borrowers, the other Loan Parties signatory thereto, the Revolving Credit Lenders signatory thereto, Credit Suisse AG, Cayman Islands Branch, as predecessor Administrative Agent for the Revolving Credit Lenders, and Wells Fargo Bank, National Association, as successor Administrative Agent for the Revolving Credit Lenders.

2024 Revolving Facility Transactions Amendment Effective Date” shall have the meaning assigned to the term “Amendment No. 17 Effective Date” in the 2024 Revolving Facility Transactions Amendment.

2024 Tranche B-4 U.S. Term Loan Transactions Amendment” shall mean the Specified Refinancing Amendment and Administrative Agency Transfer Agreement (Amendment No. 18) dated as of May 28, 2024, among the U.S. Borrowers signatory thereto, the other Loan Parties signatory thereto, Credit Suisse AG, Cayman Islands Branch, as predecessor Administrative Agent for the Term Lenders, and Wells Fargo Bank, National Association, as Revolving Credit Facility Administrative Agent, successor Term Loan Facility Administrative Agent and New Term Lender (as defined therein).

2024 Tranche B-4 U.S. Term Loan Transactions Amendment Effective Date” shall have the meaning assigned to the term “Amendment No. 18 Effective Date” in the 2024 Tranche B-4 U.S. Term Loan Transactions Amendment.

ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

 


 

 

Accepting Lenders” shall have the meaning assigned to such term in Section 2.24(a).

Acquired Entity” shall have the meaning assigned to such term in Section 6.04(h).

Additional Bank Secured Party Acknowledgment” shall mean an Additional Bank Secured Party Acknowledgment executed under a Prior Credit Agreement or substantially in the form attached hereto as Exhibit N or in another form permitted by the Administrative Agent.

Additional Specified Refinancing Lender” shall have the meaning assigned to such term in Section 2.25(b).

Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that in no event shall the Adjusted Term SOFR in respect of (x) any Tranche B-3 U.S. Term Loan be less than 0.50% per annum and (y) any other Loan be less than 0% per annum.

Administrative Agent” shall have the meaning assigned to such term in the introductory statement to this Agreement.

Administrative Agent” means:

(a) with respect to any (x) Borrowing, advance, prepayment, repayment, reimbursement and other payment with respect to or in connection with, or (y) any fee payable with respect to or in connection with, in the case of each of (x) and (y), any Term Loan, the Term Loan Facility Administrative Agent;

(b) with respect to any (x) Borrowing, advance, prepayment, repayment, reimbursement and other payment with respect to or in connection with, or (y) any fee payable with respect to or in connection with, in the case of each of (x) and (y), any Revolving Loan, the Revolving Credit Facility Administrative Agent;

(c) with respect to any matters related to determination, calculation, replacement or approval of an interest rate (or any component thereof) in respect of a Term Loan, the Term Loan Facility Administrative Agent;

(d) with respect to any matters related to determination, calculation, replacement or approval of an interest rate (or any component thereof) or Designated Foreign Currency in respect of any Revolving Loan, the Revolving Credit Facility Administrative Agent;

(e) with respect to any notices, certificates, questionnaires, documents, reports, communications and any other information and documentation to be delivered to the Administrative Agent by (x) any Loan Party that are exclusively related to any Term Loan or any Term Lender (including borrowing and prepayment notices and excluding, for the avoidance of doubt, any reports, notices, documents, communications and information (A) delivered by any of the Loan Parties under ‎Article V or (B) related to Collateral and security interests therein) or (y) any Term Lender, the Term Loan Facility Administrative Agent;

(f) with respect to any notices, certificates, questionnaires, documents, reports, communications and any other information and documentation to be delivered to the Administrative Agent by (x) any Loan Party that are exclusively related to the Revolving Loan or any Revolving Credit Lender (including borrowing, prepayment, commitment termination and cancellation notices and excluding, for the

 


 

 

avoidance of doubt, any reports, notices, documents, communications and information (A) delivered by any of the Loan Parties under Article V or (B) related to Collateral and security interests therein) or (y) any Revolving Credit Lender, the Revolving Credit Facility Administrative Agent;

(g) with respect to any notices, certificates, documents, reports, communications and any other information and documentation to be delivered, made or posted by the Administrative Agent to (x) any Loan Party that are exclusively related to any Term Loan or any Term Lender (excluding any notices described in clause (t) below) or (y) any Term Lender, the Term Loan Facility Administrative Agent;

(h) with respect to any notices, certificates, documents, reports, communications and any other information and documentation to be delivered, made or posted by the Administrative Agent to (x) any Loan Party that are exclusively related to any of the Revolving Loan or any Revolving Credit Lender (excluding any notices described in clause (s) below) or (y) any Revolving Credit Lender, the Revolving Credit Facility Administrative Agent;

(i) with respect to any demands and requests that the Administrative Agent is required to, or has the right or option to, make (excluding any demands and requests described in clause (t) below) with respect to (x) any Loan Party that are exclusively related to any Term Loan or (y) any Term Lender, the Term Loan Facility Administrative Agent;

(j) with respect to any demands and requests that the Administrative Agent is required to, or has the right or option to, make (excluding any demands and requests described in clause ‎(s) below) with respect to (x) any Loan Party that are exclusively related to the Revolving Loan or (y) any Revolving Credit Lender, the Revolving Credit Facility Administrative Agent;

(k) with respect to any matter related to conditions precedent to any Term Borrowing and any determination whether such conditions are satisfied, the Term Loan Facility Administrative Agent;

(l) with respect to any matter related to conditions precedent to any Revolving Credit Borrowing or any L/C Disbursement and any determination whether such conditions are satisfied, the Revolving Credit Facility Administrative Agent;

(m) with respect to any matter related to any assignments of, or participations in, any Term Loan (including the maintenance of the Register of Term Lenders), the Term Loan Facility Administrative Agent;

(n) with respect to any matter related to any assignments of, or participations in, any of the Revolving Loan (including the maintenance of the Register of Revolving Credit Lenders), the Revolving Credit Facility Administrative Agent;

(o) with respect to any matter related to the designation of any Term Lender as a Defaulting Lender, the Term Loan Facility Administrative Agent;

(p) with respect to any matter related to the designation of any Revolving Credit Lender as a Defaulting Lender, the Revolving Credit Facility Administrative Agent;

(q) with respect to any amendments or other modifications of the Loan Documents in connection with Section 2.23, 2.24, 2.25 or 2.26 in respect of Term Loan Commitments and/or Term Loans, the Term Loan Facility Administrative Agent;

 


 

 

(r) with respect to any amendments or other modifications of the Loan Documents in connection with Section 2.23, 2.24, 2.25 or 2.26 in respect of Revolving Credit Commitments and/or Revolving Loans, the Revolving Credit Facility Administrative Agent;

(s) with respect to any action to be taken (including any request or demand to be made, notice to be delivered or any approval, consent or acceptance to be granted) by the Administrative Agent at the instruction or direction of the Required Lenders constituting solely Term Lenders, the Term Loan Facility Administrative Agent;

(t) with respect to any action to be taken (including any request or demand to be made, notice to be delivered or any approval, consent or acceptance to be granted) by the Administrative Agent at the instruction or direction of the Required Lenders or Required Revolving Credit Lenders, the Revolving Credit Facility Administrative Agent;

(u) with respect to any notices that the Administrative Agent is authorized or required to deliver to any Loan Party (excluding any notices described in clause ‎(g), ‎(h), ‎(s) or ‎(t)), the Revolving Credit Facility Administrative Agent, the Term Loan Facility Administrative Agent or either of them;

(v) with respect to any demands, requests and any other action that the Administrative Agent is required to, or has the right or option to, provide, make or take (excluding any demands and requests set forth in clause ‎(i), ‎(j), ‎(s) or ‎(t)), the Revolving Credit Facility Administrative Agent, the Term Loan Facility Administrative Agent or either of them;

(w) with respect to any other matters (including, for the avoidance of doubt, any reference to the Administrative Agent in connection with (A) the delivery of any reports, notices, documents, communications and information by the Loan Parties under Article V, (B) any amendments, waivers or modifications of the Loan Documents, (C) any matter requiring approval, consent, acceptance or agreement of the Administrative Agent, (D) the description of the powers and authority of the Administrative Agent and (E) any indemnity, exculpation and reimbursement provisions), solely to the extent not otherwise described in any of clauses (a) through ‎(v) above, both the Revolving Credit Facility Administrative Agent and the Term Loan Facility Administrative Agent.

Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(b).

Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.

Affected Class” shall have the meaning assigned to such term in Section 2.24(a).

Affiliate” shall mean, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided, however, that, for purposes of the definition of “Eligible Assignee” and Section 6.07 the term “Affiliate” shall also include any Person that directly or indirectly owns 10% or more of any class of Equity Interests of the Person specified or that is an officer or director of the Person specified.

Affiliate Subordination Agreement” shall mean an Affiliate Subordination Agreement in the form of Exhibit H pursuant to which intercompany obligations and advances owed by any Loan Party are subordinated to the Bank Obligations.

Affiliated Lender” shall mean any Lender that is a Related Person.

 


 

 

Agents” shall have the meaning assigned to such term in Article VIII.

Aggregate Revolving Credit Exposure” shall mean the aggregate amount of the Lenders’ Revolving Credit Exposures.

Agreed Security Principles” shall mean the principles set forth on Exhibit E.

Agreement Value” shall mean, for each Hedging Agreement, on any date of determination, the maximum aggregate amount (giving effect to any netting agreements) that Holdings or any Subsidiary would be required to pay if such Hedging Agreement were terminated on such date.

Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted Term SOFR on such day for a three-month Interest Period commencing on the second Business Day after such day plus 1%; provided that in no event shall the Alternate Base Rate be less than 1.00% per annum. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate or the Adjusted Term SOFR for any reason, the Alternate Base Rate shall be determined without regard to clause (b) or (c), as applicable, of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate, or the Adjusted Term SOFR shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR, as the case may be.

Amendment No. 2” shall mean Amendment No. 2 and Incremental Term Loan Assumption Agreement dated as of May 4, 2010, to the Original Credit Agreement.

Amendment No. 2 Effective Date” shall mean May 4, 2010.

Amendment No. 3” shall mean Amendment No. 3 and Incremental Term Loan Assumption Agreement dated as of September 30, 2010, to the Original Credit Agreement.

Amendment No. 6” shall mean Amendment No. 6 and Incremental Term Loan Assumption Agreement dated as of August 9, 2011, to the Original Credit Agreement.

Amendment No. 9” shall mean Loan Modification Agreement and Amendment No. 9 dated as of February 25, 2015, to the Existing Credit Agreement.

Amendment No. 10” shall mean Amendment No. 10 and Incremental Assumption Agreement dated as of the 2016 Restatement Date, to the Existing Credit Agreement.

Amendment No. 13” shall mean Specified Refinancing Amendment and Amendment No. 13 dated as of October 1, 2020, to this Agreement.

Amendment No. 13 Effective Date” shall have the meaning assigned to such term in Amendment No. 13.

Ancillary Borrower” shall mean any Borrower that is not a Principal Borrower.

Anti-Corruption Laws” shall mean: (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Bribery Act 2010, as amended; and (c) any other anti-bribery or anti-corruption

 


 

 

laws, regulations or ordinances in any jurisdiction in which any Borrower or any member of the Borrowing Group is located or doing business.

 

Anti-Money Laundering Laws” shall mean applicable laws or regulations in any jurisdiction in which any Borrower or any member of the Borrowing Group is located or doing business that relates to money laundering or any financial record keeping and reporting requirements related thereto.

Applicable Discount” shall have the meaning assigned to such term in Section 2.12(b)(iii).

Applicable Margin” shall mean, for any day, (a) [reserved], (b) with respect to any Term SOFR Tranche B-2 U.S. Term Loan, 3.25% per annum[reserved], (c) with respect to any Term SOFR Tranche B-3-4 U.S. Term Loans, the applicable rate2.50% per annum set forth below under the caption “Term SOFR Spread – Tranche B-3 U.S. Term Loans”, (d) [reserved], (e) with respect to any Daily Rate Tranche B-2 U.S. Term Loan, 2.25% per annum,[reserved], (f) with respect to any Daily Rate Tranche B-3-4 U.S. Term Loans, the applicable rate1.50% per annum set forth below under the caption “Daily Rate Spread – Tranche B-3 U.S. Term Loans”, (g) with respect to any Eurocurrency Revolving Loan or Term SOFR Revolving Loan, the applicable rate per annum set forth below under the caption “Term SOFR and Eurocurrency Spread – Revolving Loans” and (h) with respect to any Daily Rate Revolving Loan, the applicable rate per annum set forth under the caption “Daily Rate Spread – Revolving Loans”.

Senior Secured First Lien Leverage Ratio

Term SOFR Spread – Tranche B-3 U.S. Term Loans

Daily Rate Spread – Tranche B-3 U.S. Term Loans

 

Category 1

> 4.80 to 1.00

3.50%

2.50%

Category 2

≤ 4.80 to 1.00

3.25%

2.25%

 

Each change in the Applicable Margin resulting from a change in the Senior Secured First Lien Leverage Ratio shall be effective with respect to all Tranche B-3 U.S. Term Loans outstanding on and after the date of delivery to the Administrative Agent of the financial statements and certificates required by Section 5.04(a) or (b) and Section 5.04(c), respectively, indicating such change until the date immediately preceding the next date of delivery of such financial statements and certificates indicating another such change. Notwithstanding the foregoing, the Senior Secured First Lien Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Applicable Margin until the delivery of such financial statements and certificates with respect to the first full fiscal quarter ending after the 2021 Specified Refinancing and Incremental Amendment Effective Date. In addition, (a) at any time during which Holdings has failed to deliver the financial statements and certificates required by Section 5.04(a) or (b) and Section 5.04(c), respectively (until the time of the delivery thereof), or (b) at any time after the occurrence and during the continuance of an Event of Default, the Senior Secured First Lien Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Applicable Margin.

 


 

 

Total Leverage Ratio

Term SOFR and Eurocurrency Spread – Revolving Loans

Daily Rate Spread – Revolving Loans

Category 1

> 4.75 to 1.00

2.75%

1.75%

Category 2

≤ 4.75 to 1.00 but > 4.00 to 1.00

2.50%

1.50%

Category 3

≤ 4.00 to 1.00 but > 3.25 to 1.00

2.25%

1.25%

Category 4

≤ 3.25 to 1.00

2.00%

1.00%

 

Each change in the Applicable Margin resulting from a change in the Total Leverage Ratio shall be effective with respect to all Revolving Loans outstanding on and after the date of delivery to the Administrative Agent of the financial statements and certificates required by Section 5.04(a) or (b) and Section 5.04(c), respectively, indicating such change until the date immediately preceding the next date of delivery of such financial statements and certificates indicating another such change. Notwithstanding the foregoing, the Total Leverage Ratio shall be deemed to be in Category 2 for purposes of determining the Applicable Margin from the 2024 Revolving Facility Transactions Amendment Effective Date until the delivery of the financial statements and certificates required by Section 5.04(b) and Section 5.04(c), respectively, with respect to the fiscal quarter ending June 30, 2024. In addition, (a) at any time during which Holdings has failed to deliver the financial statements and certificates required by Section 5.04(a) or (b) and Section 5.04(c), respectively (until the time of the delivery thereof), or (b) at any time after the occurrence and during the continuance of an Event of Default, the Total Leverage Ratio shall be deemed to be in Category 1 for purposes of determining the Applicable Margin.

Asset Sale” shall mean any sale, transfer or other disposition (including by way of merger, amalgamation, casualty, condemnation or otherwise) by Holdings or any Subsidiary to any Person other than Holdings, any Borrower or any Subsidiary Guarantor of (a) any Equity Interests of any Subsidiary (including any issuance thereof) (other than any sale or issuance of directors’ qualifying shares) or (b) any other assets of Holdings or any Subsidiary, in each case, other than:

(i) inventory (including filling machines and other equipment sold to customers), damaged, obsolete or worn out assets, scrap, cash and Permitted Investments, in each case disposed of in the ordinary course of business;

 


 

 

(ii) dispositions between or among Subsidiaries that are not Loan Parties;

(iii) dispositions of (A) Securitization Assets in connection with a Permitted Receivables Financing and (B) receivables in connection with factoring or similar arrangements in the ordinary course of business;

(iv) any disposition constituting an investment permitted under Section 6.04(a) or Section 6.04(j);

(v) dispositions consisting of the granting of Liens permitted by Section 6.02;

(vi) [reserved];

(vii) any sale, transfer or other disposition or series of related sales, transfers or other dispositions having a value not in excess of $30,000,000;

(viii) the abandonment of patents, trademarks or other intellectual property rights which, in the reasonable good faith determination of Holdings, are not material to the conduct of the business of Holdings and the Subsidiaries;

(ix) dispositions consisting of Restricted Payments permitted by Section 6.06;

(x) any exchange of assets for assets related to a Similar Business that are of comparable or greater fair market value or, as determined in good faith by the Board of Directors of Holdings, that are of comparable or greater usefulness to the business of Holdings and the Subsidiaries as a whole; provided that any cash received by Holdings or any Subsidiary must be applied in accordance with Section 2.13 as if such transaction were an Asset Sale;

(xi) dispositions of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;

(xii) leases or sub-leases of any real property or personal property in the ordinary course of business;

(xiii) licensings and sublicensings of intellectual property of Holdings or any Subsidiary in the ordinary course of business;

(xiv) dispositions of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in the joint venture arrangements and similar binding arrangements;

(xv) any disposition of Equity Interests of a Subsidiary pursuant to an agreement or other obligation with or to a Person (other than Holdings or a Subsidiary) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition;

(xvi) any Sale and Leaseback Transaction; and

(xvii) any disposition of the November 2013 5.625% Senior Unsecured Notes by a Subsidiary to BP II as part of, or in connection with, the refinancing thereof.

For the avoidance of doubt, the term “Asset Sale” shall include any Specified Asset Sale.

 


 

 

Asset Sale Prepayment Date shall mean, with respect to any Asset Sale and the Net Cash Proceeds received (or, in the case of proceeds with respect to which Holdings has delivered a notice to the Administrative Agent electing Reinvestment, deemed received) with respect thereto, the earlier of (a) the 90th day following the date on which such Net Cash Proceeds are received or deemed received, as applicable, and (b) the date on which Holdings or any of its Subsidiaries uses any of such Net Cash Proceeds to prepay or repurchase Indebtedness with Liens on the Collateral ranking pari passu with the Liens securing the Bank Obligations pursuant to an asset sale offer made in accordance with the provisions of the indenture or other agreement governing the terms of such Indebtedness.

Assignment and Acceptance shall mean an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in the form of Exhibit B or such other form as shall be approved by the Administrative Agent.

Auction” shall have the meaning assigned to such term in Section 2.12(b)(i).

Auction Amount” shall have the meaning assigned to such term in Section 2.12(b)(i).

Auction Notice” shall have the meaning assigned to such term in Section 2.12(b)(i).

August 2011 Issuers” shall mean RGHL US Escrow II LLC, a Delaware limited liability company, and RGHL US Escrow II Inc., a Delaware corporation.

August 2011 9.875% Senior Unsecured Note Indenture” shall mean the senior unsecured note Indenture dated as of August 9, 2011, between the August 2011 Issuers and The Bank of New York Mellon as trustee, pursuant to which the August 2011 9.875% Senior Unsecured Notes were issued.

August 2011 9.875% Senior Unsecured Notes” shall mean the 9.875% Senior Unsecured Notes due 2019 issued on August 9, 2011 by the August 2011 Issuers in an aggregate principal amount of $1,000,000,000 and issued on August 10, 2012 by the U.S. Issuers and the Luxembourg Issuer in exchange for February 2012 9.875% Senior Unsecured Notes, including any Senior Unsecured Notes into which such notes may be exchanged in accordance with the provisions of the August 2011 9.875% Senior Unsecured Notes Indenture.

Available Amount” shall mean, at any time, the Cumulative Credit at such time, plus the amount of any Declined Proceeds retained by the Borrowers following the 2016 Restatement Date, minus the aggregate amounts expended by Holdings and the Subsidiaries on or after the First Restatement Date and at or prior to such time to make investments, loans or advances pursuant to Section 6.04(q), to make Restricted Payments pursuant to Section 6.06(a)(ix) and to prepay, redeem, repurchase, retire or otherwise acquire Indebtedness pursuant to Section 6.09(c). As of June 30, 2016, the Available Amount was equal to $1,416,000,000.

Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark for Borrowings and Loans denominated in Dollars, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.08(f).

 


 

 

Bank Obligations” shall mean (a) the due and punctual payment of (i) the principal of and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrowers under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, and (iii) all other monetary obligations of the Borrowers to any of the Bank Secured Parties under this Agreement and each of the other Loan Documents, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), (b) the due and punctual performance of all other obligations of the Borrowers under or pursuant to this Agreement and each of the Loan Documents, (c) the due and punctual payment and performance of all obligations of each other Loan Party under or pursuant to this Agreement and each of the other Loan Documents, (d) the due and punctual payment and performance of all obligations of each Loan Party or other Subsidiary (as contemplated by the definition of the term “Hedge Provider”) under each Hedging Agreement with a Hedge Provider, (e) the due and punctual payment and performance of all obligations of each Loan Party or other Subsidiary (as contemplated by the definition of the term “Local Facility”) under each Local Facility and (f) the Cash Management Obligations. With respect to any Guarantor, if and to the extent, under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof), all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest for, the obligation (the “Excluded Guarantor Obligation”) to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act is or becomes illegal, the Bank Obligations of such Guarantor shall not include any such Excluded Guarantor Obligation.

Bank Secured Parties” shall mean (a) the Lenders, (b) the Revolving Credit Facility Administrative Agent, (c) the Term Loan Facility Administrative Agent, (d) each Collateral Agent, (e) any Issuing Bank, (f) each Hedge Provider, (g) each Local Facility Provider, (h) each Cash Management Bank, (i) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (j) the successors and assigns of each of the foregoing.

Bankruptcy Code” shall mean the provisions of Title 11 of the United States Code, 11 USC. §§ 101 et seq.

Bankruptcy Proceedings” shall have the meaning assigned to such term in Section 9.04(m).

Benchmark” shall mean, initially, (i) for Loans denominated in Dollars, the Term SOFR Reference Rate, and (ii) for Loans denominated in Euros, the EURIBO Rate; provided that if a Benchmark Transition Event or Early Opt-in Election has occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.08.

Benchmark Replacement” shall mean (A) for Loans denominated in Euros, the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and Holdings giving due consideration to (x) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention for determining a benchmark rate of interest as a replacement to the Benchmark for syndicated credit facilities denominated in the applicable currency and (ii) the Benchmark Replacement Adjustment and (B) for Loans denominated in Dollars, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date: (a) the sum of

 


 

 

Daily Simple SOFR and the Benchmark Replacement Adjustment; or (b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and Holdings giving due consideration to (x) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention for determining a benchmark rate of interest as a replacement to the then current Benchmark for U.S. dollar-denominated syndicated credit facilities and (ii) the Benchmark Replacement Adjustment; provided that in each case if the Benchmark Replacement as so determined would be (x) with respect to the Tranche B-3 U.S. Term Loans, less than 0.50% per annum, the Benchmark Replacement will be deemed to be 0.50% per annum, and (y) with respect to any other Loans, less than 0.00% per annum, the Benchmark Replacement will be deemed to be 0.00% per annum, in each case, for the purposes of this Agreement.

Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and Holdings giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable currency at such time.

Benchmark Replacement Conforming Changes” shall mean, with respect to either the use or administration or implementation of the Adjusted Term SOFR or the EURIBO Rate, or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate”, to the definition of “Interest Period”, to the definition of “Business Day”, to timing and frequency of determining rates and to making payments of interest and other administrative matters) as may be mutually agreed by the Administrative Agent and Holdings as are necessary to reflect the adoption and implementation of such rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with this Agreement with the prior written consent of Holdings, not to be unreasonably withheld, delayed or conditioned).

Benchmark Replacement Date” shall mean (i) with respect to the then current Benchmark for Borrowings and Loans denominated in Euros, the earlier to occur of the following events:

(a) in the case of clause (1) or (2) of clause (i) of the definition of “Benchmark Transition Event”, the later of (1) the date of the public statement or publication of information referenced therein and (2) the date on which the administrator of the applicable Benchmark Rate permanently or indefinitely ceases to provide such Benchmark Rate; or

(b) in the case of clause (3) of clause (i) of the definition of “Benchmark Transition Event”, the date of the public statement or publication of information referenced therein;

and (ii) with respect to the then-current Benchmark for Borrowings and Loans denominated in Dollars, the earlier to occur of the following events:

 


 

 

(a) in the case of clause (1) or (2) of clause (ii) of the definition of “Benchmark Transition Event”, the later of (1) the date of the public statement or publication of information referenced therein and (2) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or

(b) in the case of clause (3) of clause (ii) of the definition of “Benchmark Transition Event”, the first date on which all Available Tenors of such Benchmark (or the published component used in the calculation thereof) have been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.

For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (ii)(a) or (ii)(b) of this definition with respect to any Benchmark for Borrowings and Loans denominated in Dollars upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

Benchmark Transition Event” shall mean (i) with respect to the then current Benchmark for Borrowings and Loans denominated in Euros, the occurrence of one or more of the following events:

(1) a public statement or publication of information by or on behalf of the administrator of the applicable Benchmark announcing that such administrator has ceased or will cease to provide such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark;

(2) a public statement or publication of information by the regulatory supervisor for the administrator of any Benchmark, an insolvency official with jurisdiction over the administrator for any Benchmark, a resolution authority with jurisdiction over the administrator for any Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for any Benchmark, which states that the administrator of such Benchmark has ceased or will cease to provide such Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark; or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of any Benchmark announcing that such Benchmark is no longer representative; and

(ii) with respect to the then current Benchmark for Borrowings and Loans denominated in Dollars, the occurrence of one or more of the following events:

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

(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal

 


 

 

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

(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.

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

Benchmark Transition Start Date” shall mean (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to Holdings, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

Benchmark Unavailability Period” shall mean, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to any Benchmark and solely to the extent that such Benchmark has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the applicable Benchmark for all purposes hereunder in accordance with Section 2.08 and (y) ending at the time that a Benchmark Replacement has replaced the applicable Benchmark for all purposes hereunder pursuant to Section 2.08.

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

Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.

Borrowers” shall mean the U.S. Borrowers, the European Borrowers, and any other Wholly Owned Subsidiary of BP I that becomes a party hereto as a Borrower pursuant to Section 9.21.

Borrower Materials” shall have the meaning assigned to such term in Section 9.01.

Borrowing” shall mean Loans of the same Class, Type and currency made, converted or continued on the same date and, in the case of Eurocurrency Loans and Term SOFR Loans, as to which a single Interest Period is in effect.

 


 

 

Borrowing Group” shall mean, wherever located: (a) the Borrowers, (b) Holdings, (c) any Guarantor, (d) the owner of any Collateral and (e) any officer, director or agent acting on behalf of any of the parties referred to in items (a) through (c) with respect to this Agreement or any of the other Loan Documents.

Borrowing Minimum” shall mean (a) with respect to a Borrowing denominated in Dollars, $5,000,000 and (b) with respect to a Borrowing denominated in Euro, €5,000,000.

Borrowing Multiple” shall mean (a) with respect to a Borrowing denominated in Dollars, $1,000,000 and (b) with respect to a Borrowing denominated in Euro, €1,000,000.

Borrowing Request” shall mean a request by any Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved by the Administrative Agent.

Borrowing Subsidiary Agreement” shall mean a Borrowing Subsidiary Agreement substantially in the form of Exhibit M-1.

Borrowing Subsidiary Termination” shall mean a Borrowing Subsidiary Termination substantially in the form of Exhibit M-2.

BP I” shall mean Beverage Packaging Holdings (Luxembourg) I S.A., a Luxembourg public limited liability company (société anonyme) with a registered office at 6C rue Gabriel Lippmann, L-5365 Munsbach, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies under number B 128.592 and a Wholly Owned Subsidiary of Holdings.

BP II” shall mean Beverage Packaging Holdings (Luxembourg) II SA, a Luxembourg public limited liability company (société anonyme) with a registered office at 6C rue Gabriel Lippmann, L-5365 Munsbach, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies under number B 128.914 and a Wholly Owned Subsidiary of Holdings.

BP Factoring” shall mean Beverage Packaging Factoring (Luxembourg) S.à r.l., a company incorporated as a société à responsabilité limitée under the laws of Luxembourg with registered office at 6C, rue Gabriel Lippmann, L-5365 Munsbach, Grand Duchy of Luxembourg (or any successor in interest thereto).

Breakage Event” shall have the meaning assigned to such term in Section 2.16.

Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New York City are authorized or required by law to close; provided, however, that (a) when used in connection with a Term SOFR Loan, the term “Business Day” shall exclude any day which is not a U.S. Government Securities Business Day, (b) when used in connection with a Loan denominated in Euro, the term “Business Day” shall also exclude any day which is not a Target Day and (c) when used in connection with any Calculation Date or determining any date on which any amount is to be paid or made available in a Designated Foreign Currency, the term “Business Day” shall also exclude any day on which commercial banks and foreign exchange markets are not open for business in the principal financial center with respect to such Designated Foreign Currency.

Calculation Date” shall mean each of the following dates if on such date one or more Revolving Loans or Letters of Credit , subject to Section 1.05, (a) with respect to any Loan denominated in a Designated Foreign Currency would be outstanding, each of the following: (ai) the date on which any

 


 

 

Revolving Loan is made, converted or continued, (b) the date of issuance, extension or renewal ofof the borrowing of such Loan (including any borrowing or deemed borrowing in respect of any unreimbursed portion of any payment by the applicable Issuing Bank under any Letter of Credit, (c) the last Business Day of each quarter denominated in a Designated Foreign Currency) but only as to the amounts so borrowed on such date, (ii) each date of a continuation of such Loan pursuant to the terms of this Agreement, but only as to the amounts so continued on such date and (diii) such additional dates on which the Exchange Rate is calculated as the Administrative Agent shall specify.determine, and (b) with respect to any Letter of Credit denominated in a Designated Foreign Currency, each of the following: (i) each date of issuance of such Letter of Credit, but only as to the stated amount of the Letter of Credit so issued on such date, (ii) in the case of all Existing Letters of Credit denominated in Designated Foreign Currencies, the 2024 Tranche B-4 U.S. Term Loan Transactions Amendment Effective Date, but only as to such Existing Letters of Credit and (iii) such additional dates as the Administrative Agent shall determine.

 

Canton Property” shall have the meaning assigned to such term in the 2024 Revolving Facility Transactions Amendment.

Capital Expenditures” shall mean, for any period, (a) the additions to property, plant and equipment and other capital expenditures of Holdings and its consolidated Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of Holdings for such period prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by Holdings and its consolidated Subsidiaries during such period, but excluding in each case (i) any such expenditure made to restore, replace or rebuild property to the condition of such property immediately prior to any damage, loss, destruction or condemnation of such property, to the extent such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation, (ii) any such expenditure financed with the proceeds of Qualified Capital Stock or Subordinated Shareholder Loans, (iii) any such expenditure that constitutes a Permitted Acquisition or an investment in another Person permitted by Section 6.04 and (iv) any such expenditure that constitutes an amount reinvested in accordance with the definition of “Net Cash Proceeds”.

Capital Lease Obligations” of any Person shall mean the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP (excluding any lease that would be required to be so classified as a result of a change in GAAP after the 2016 Restatement Date), and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

Captive Insurance Subsidiary” shall mean any Subsidiary of Holdings that is subject to regulation as an insurance company (or any subsidiary thereof).

Cash Management Bank” shall mean any Person at the time it provides any Cash Management Services that (a) was, at the time of entry into the agreement to provide such Cash Management Services, the Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender, (b) is a Specified Cash Management Bank or (c) is otherwise approved by the Administrative Agent acting reasonably; provided that, in each case, such Person has executed and delivered to the Administrative Agent an Additional Bank Secured Party Acknowledgment, which has not been cancelled.

Cash Management Obligations” shall mean obligations owed by any Borrower or any other Subsidiary to any Cash Management Bank at the time it provides any Cash Management Services.

 


 

 

Cash Management Services” shall mean any composite accounting or other cash pooling arrangements and netting, overdraft protection and other arrangements with any bank arising under standard business terms of such bank.

A “Change in Control” shall be deemed to have occurred if (a) prior to a Qualified Public Offering, the Permitted Investors shall fail to own, directly or indirectly, beneficially and of record, shares representing at least 51% of each of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Holdings, (b) after a Qualified Public Offering, (x) a majority of the Board of Directors of Holdings shall not be Continuing Directors or (y) the Permitted Investors shall cease to own, directly or indirectly, at least 35% of the Capital Stock of Holdings and any other “person” or “group” (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date hereof) shall own a greater amount (it being understood that if any such person or group includes one or more Permitted Investors, the shares of Capital Stock of Holdings directly or indirectly owned by the Permitted Investors that are part of such person or group shall not be treated as being owned by such person or group for purposes of determining whether this clause (y) is triggered) or (c) any Principal Borrower shall cease to be a Wholly Owned Subsidiary of Holdings.

Change in Law” shall mean (a) the adoption of any law, rule or regulation after the 2016 Restatement Date or, to the extent the concept is applied to an Incremental Lender in its capacity as such, the date of the relevant Incremental Assumption Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the 2016 Restatement Date or, to the extent the concept is applied to an Incremental Lender in its capacity as such, the date of the relevant Incremental Assumption Agreement or (c) compliance by any Lender or any Issuing Bank (or, for purposes of Section 2.14, by any lending office of such Lender or Issuing Bank or by such Lender’s or such Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the 2016 Restatement Date or, to the extent the concept is applied to an Incremental Lender in its capacity as such, the date of the relevant Incremental Assumption Agreement; provided that any legislation relating to any U.K. Bank Levy and any published practice or other official guidance related thereto shall not constitute a Change in Law; provided further that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Charges” shall have the meaning assigned to such term in Section 9.09.

Claim” shall have the meaning assigned to such term in Section 9.04(m).

Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Tranche B-1-4 U.S. Term Loans, Tranche B-2 U.S. Term Loans, Tranche B-3 U.S. Term Loans, European Term Loans or Other Term Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, U.S. Term Loan Commitment, European Term Loan Commitment or Incremental Term Loan Commitment. Other Term Loans and Other Revolving Loans (and the related Commitments) made and established at different times and with different terms, and new tranches of Term Loans and Revolving Credit Commitments established as a result of a Loan Modification Offer, shall be construed to be in different Classes.

Closing Date” shall mean November 5, 2009.

 


 

 

Code” shall mean the U.S. Internal Revenue Code of 1986, and the regulations promulgated thereunder, as amended from time to time.

Collateral” shall mean all the collateral described in the Security Documents and the First Lien Intercreditor Agreement. Notwithstanding anything herein or in any other Loan Document to the contrary, none of (x) the Canton Property, (y) the Mortgage encumbering the Canton Property (but solely in respect of the Canton Property) or (z) the assets, equipment, fixtures or other property located on the Canton Property shall, in any such case constitute “Collateral” securing Obligations or Bank Obligations in respect of the Revolving Credit Commitments, the Revolving Loans or the Letters of Credit hereunder or under any other Loan Document.

Collateral Agents” shall mean, collectively, The Bank of New York Mellon and Wilmington Trust (London) Limited, each in its capacity as a separate collateral agent under the First Lien Intercreditor Agreement with respect to a portion of the Collateral determined in accordance with the First Lien Intercreditor Agreement, any successor thereto and any other collateral agent acceptable to Holdings and each Representative (as defined in the First Lien Intercreditor Agreement) that executes a joinder in a form acceptable to Holdings and each Representative pursuant to which it accedes to the First Lien Intercreditor Agreement as a co-collateral agent or additional or separate collateral agent with respect to all or any portion of the Collateral, and any successor to any such other collateral agent.

Collateral Agreement” shall mean each of the U.S. Collateral Agreement and each Foreign Collateral Agreement.

Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Credit Commitment, Term Loan Commitment or Incremental Revolving Credit Commitment.

Communications” shall have the meaning assigned to such term in Section 9.01.

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

Confidential Information Memorandum” shall mean the Confidential Information Memorandum of Holdings dated June 2016, as supplemented prior to the 2016 Restatement Date.

Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) consolidated net financial expense for such period, (ii) consolidated expense for taxes based on income, profits or capital for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) any non-recurring fees, expenses or charges in connection with the consummation and implementation of the 2016 Restatement Transactions, any Permitted Acquisition or any offering of Equity Interests or Indebtedness permitted hereunder (whether or not consummated), (v) Restructuring Costs, (vi) Cost Savings, (vii) any decrease in Consolidated Net income for such period resulting from purchase accounting in connection with any acquisition, (viii) any non-cash charges (other than the write-down of current assets) for such period, (ix) any extraordinary charges, (x) any Non-Recurring Charges, (xi) any commissions, discounts, yield and upfront and other fees or charges related to any Permitted Receivables Financing for such period, and any other amounts for such period comparable to or in the nature of interest under any Permitted Receivables Financing, and losses on dispositions of Securitization Assets and related assets in connection with any Permitted Receivables Financing for such period and (xii) the aggregate amount of Management Fees recognized as an expense during such period by Holdings and its Subsidiaries and minus (b) without duplication, (i) all cash payments made during such period on account of reserves and other non-cash charges added to Consolidated Net Income pursuant to clause (a)(viii) above in a

 


 

 

previous period and (ii) to the extent included in determining such Consolidated Net Income, any gains which are of an abnormal, unusual, extraordinary or non-recurring nature and all non-cash items of income for such period, all determined on a consolidated basis in accordance with GAAP; provided that for purposes of calculating the Senior Secured First Lien Leverage Ratio, the Total Secured Leverage Ratio and the Total Leverage Ratio for any period, (A) the Consolidated EBITDA of any Acquired Entity acquired by Holdings or any Subsidiary during such period (or after the end of such period and on or prior to the date of such determination) shall be included on a pro forma basis for such period (assuming the consummation of such acquisition occurred as of the first day of such period) and (B) the Consolidated EBITDA of any Person or line of business sold or otherwise disposed of by Holdings or any Subsidiary during such period (or after the end of such period and on or prior to the date of such determination) shall be excluded for such period (assuming the consummation of such sale or other disposition occurred as of the first day of such period). Solely for purposes of determining compliance with the covenant in Section 6.126.11(a), any cash common equity contribution made to Holdings after the last day of any fiscal quarter and on or prior to the day that is 10 Business Days after the day on which financial statements are required to be delivered for such fiscal quarter will, at the request of Holdings, be deemed to increase, dollar for dollar, Consolidated EBITDA for such fiscal quarter and applicable subsequent periods which include such fiscal quarter (any such contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) in each four consecutive fiscal quarter period, there shall be at least two fiscal quarters in respect of which no Specified Equity Contribution is made, (b) no more than five Specified Equity Contributions may be made in the aggregate during the term of this Agreement, (c) the amount of any Specified Equity Contribution shall be no greater than the amount required to cause Holdings to be in compliance with the covenant in Section 6.126.11(a) for the relevant fiscal quarter, (d) all Specified Equity Contributions shall be disregarded for any purpose under this Agreement other than determining compliance with the covenant in Section 6.126.11(a) (including determining the Applicable Margin) and (e) the Specified Equity Contribution may not reduce Indebtedness on a pro forma basis for purposes of calculating the covenant in Section 6.126.11(a). If, after giving effect to the foregoing recalculations, Holdings shall then be in compliance with the requirements of the covenant set forth in Section 6.126.11(a), Holdings shall be deemed to have satisfied the requirements of the covenant in Section 6.126.11(a) as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and any breach or default of the covenant in Section 6.126.11(a) that had occurred shall be deemed cured for the purposes of this Agreement and upon receipt by the Administrative Agent of written notice, prior to the expiration of the 10th Business Day subsequent to the date the relevant financial statements are required to be delivered pursuant to Section 5.04 (the “Anticipated Cure Deadline”), that Holdings intends to make a Specified Equity Contribution in respect of a fiscal quarter, the Revolving Credit Lenders shall not be permitted to accelerate Loans held by them, to terminate the Revolving Credit Commitments or to exercise remedies against the Collateral solely on the basis of a failure to comply with the requirements of the covenant set forth in Section 6.126.11(a) in respect of such fiscal quarter unless such failure is not cured pursuant to a Specified Equity Contribution on or prior to the Anticipated Cure Deadline (it being understood that any Default or Event of Default that shall have occurred as a result of the failure to comply with such covenant shall exist for all other purposes of this Agreement and the other Loan Documents until such Specified Equity Contribution is actually made).

Consolidated Interest Expense” shall mean, for any period, the sum of (a) the interest expense (including imputed interest expense in respect of Capital Lease Obligations) of Holdings and the Subsidiaries for such period net of any interest income of Holdings and the Subsidiaries for the period, in each case determined on a consolidated basis in accordance with GAAP, plus (b) any interest accrued during such period in respect of Indebtedness of Holdings or any Subsidiary that is required to be capitalized rather than included in consolidated interest expense for such period in accordance with GAAP (but excluding any capitalized interest on Subordinated Shareholder Loans), plus (c) to the extent not otherwise included in Consolidated Interest Expense, any commissions, discounts, yield and upfront and other fees and charges expensed during such period in connection with any Permitted Receivables Financing which are payable to

 


 

 

any Person other than a Borrower, a Loan Party or a Securitization Subsidiary. For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by Holdings or any Subsidiary with respect to interest rate Hedging Agreements.

Consolidated Net Income” shall mean, for any period, the net income or loss of Holdings and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP (adjusted to reflect any charge, tax or expense incurred or accrued by a Parent Company during such period as though such charge, tax or expense had been incurred by Holdings, to the extent that Holdings has made or would be entitled under the Loan Documents to make any payment to or for the account of a Parent Company in respect thereof); provided that there shall be excluded (a) the income of any Subsidiary (other than a Loan Party) to the extent that the declaration or payment of dividends or similar distributions (including by way of repayment of existing loans) by such Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary, (b) the income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with any Subsidiary or the date that such Person’s assets are acquired by any Subsidiary, (c) the income or loss of any Person that is not a Wholly Owned Subsidiary of Holdings, to the extent attributable to the minority interest in such Person, (d) any gains attributable to sales of assets out of the ordinary course of business, (e) any net unrealized gain or loss resulting in such period from translation gains or losses including those related to currency re-measurements of Indebtedness and (f) any income or loss attributable to the early extinguishment of Indebtedness, Hedging Agreements or other derivative agreements. Consolidated Net Income shall not include the income or loss of any Unrestricted Subsidiary; provided that the amount of any cash dividends paid by any Unrestricted Subsidiary to Holdings or any Subsidiary during any period shall be included, without duplication, in the calculation of Consolidated Net Income for such period.

Consolidated Total Assets” shall mean, as of any date, the total assets of Holdings and the Subsidiaries, determined in accordance with GAAP, as set forth on the consolidated balance sheet of Holdings as of such date.

Contingent SIG Proceeds” shall have the meaning assigned to such term in Amendment No. 9.

Continuing Directors” shall mean the directors of the Board of Directors of Holdings on the 2016 Restatement Date, and each other director if, in each case, such other director’s nomination for election to the Board of Directors of Holdings is recommended by at least a majority of the then Continuing Directors or the election of such other director is approved by one or more Permitted Investors.

Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

Cost Savings” shall mean, for any period, without duplication of cost savings reflected in the actual operating results for such period, cost savings actually realized during such period as part of a cost savings plan, calculated on a pro forma basis as though such cost savings had been realized on the first day of such period; provided that a certificate of a Financial Officer of Holdings, certifying that such cost savings plan has been implemented and that the reflection of the Cost Savings in the calculation of Consolidated EBITDA is fair and accurate shall have been delivered to the Administrative Agent, and if reasonably requested by the Administrative Agent, such cost savings shall be verified by the Independent Accountant.

Covered Entity” shall mean any of the following:

 


 

 

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

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

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

Covered Party” shall have the meaning assigned to such term in Section 9.27.

Credit Event” shall have the meaning assigned to such term in Section 4.01.

Credit Facilities” shall mean the revolving credit, letter of credit, and term loan facilities provided for by this Agreement.

Cumulative Credit” shall have the meaning assigned to such term in the June 2016 Senior Secured Note Indenture as in effect on the 2016 Restatement Date (whether or not in effect and whether or not any Indebtedness issued thereunder is outstanding at the time).

Currencies” shall mean Dollars and each Designated Foreign Currency, and “Currency” means any of such Currencies.

Daily Rate” shall mean, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate or Foreign Base Rate.

Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.

Debtor Relief Laws” shall mean the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect.

Declined Proceeds” shall have the meaning assigned to such term in Section 2.13(e).

Default” shall mean any event or condition which upon notice, lapse of time or both would constitute an Event of Default.

Defaulting Lender” shall mean any Lender that has (a) failed to (i) fund any portion of its Loans within three Business Days of the date required to be funded by it hereunder, unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within three Business

 


 

 

Days of the date when due, (b) notified any Borrower, the Administrative Agent, the Issuing Bank or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) failed, within three Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, (e) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, custodian or similar entity appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, custodian or similar entity appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (f) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action (as defined in Section 9.20).

Default Right” shall mean the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

Designated Foreign Currency” shall mean (a) EuroEuros and (b)(i) with respect to any Other Term Loan Commitments and Other Revolving Credit Commitments, Canadian Dollars or any other freely available currency (other than Dollars) that is reasonably requested by a Borrower and reasonably acceptable to the Administrative Agent and any applicable Issuing Bank, in each case to the extent that (x) such currency is readily available and freely transferable and convertible into Dollars, (y) such currency is dealt with in the London or other applicable offshore interbank deposit market and (z) no central bank or other governmental authorization in the country of issue of such currency is required to give authorization for the use of such currency by any Lender for making Loans unless such authorization has been obtained and remains in full force and effect and (ii) with respect to any Letter of Credit, any freely availableeach other currency (other than Dollars) that is reasonably requested by a Borrower and reasonably acceptable to the Administrative Agent and the applicable Issuing Bank., in each case to the extent (x) such currency is readily available and freely transferable and convertible into Dollars, (y) such currency is dealt with in the London or other applicable offshore interbank deposit market and (z) no central bank or other governmental authorization in the country of issue of such currency is required to give authorization for the use of such currency by any Lender for making Loans unless such authorization has been obtained and remains in full force and effect.

Designated Foreign Currency Equivalent” shall mean, on any datesubject to Section 1.05, for any amount, at the time of determination thereof, with respect to anany amount expressed in Dollars, the equivalent of such amount thereof in the relevantapplicable Designated Foreign Currency, as determined by the Administrative Agent using the Exchange Rate with respect toin its sole discretion by reference to the most recent Spot Rate (as determined as of the most recent Calculation Date) for the purchase of such Designated Foreign Currency at the time in effectwith Dollars.

Designated Non-Cash Consideration” shall mean the fair market value (which may be determined at the time the definitive agreement with respect to a given Asset Sale is entered into or at the time of the closing thereof) of non-cash consideration received by Holdings, any Borrower or any

 


 

 

Subsidiary in connection with an Asset Sale made pursuant to Section 6.05(b) that is designated on or prior to the closing date thereof as Designated Non-Cash Consideration pursuant to a certificate of a Financial Officer of Holdings setting forth the basis of such valuation (which amount of Designated Non-Cash Consideration shall be deemed to be reduced for purposes of Section 6.05(b) to the extent the same is converted to cash, cash equivalents or Permitted Investments following the consummation of the applicable Asset Sale).

Discount Range” shall have the meaning assigned to such term in Section 2.12(b)(i).

Disqualified Institution” shall mean (a) any institution (and its known Affiliates) identified by Holdings in writing to the Administrative Agent from time to time as being adverse to Holdings or any of its Affiliates in any actual or threatened lawsuit and (b) business competitors of Holdings and its Subsidiaries identified by Holdings in writing to the Administrative Agent from time to time and their known Affiliates.

Disqualified Stock” shall mean any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment of any cash dividend or any other scheduled payment constituting a return of capital (other than a return of capital payable solely in shares of Qualified Capital Stock), in each case at any time on or prior to the date that is 91 days after the Latest Term Loan Maturity Date in effect at the time of issuance of such Equity Interest, or (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest referred to in clause (a) above, in each case at any time prior to the date that is 91 days after the Latest Term Loan Maturity Date in effect at the time of issuance of such Equity Interest (other than (i) upon payment in full of the Obligations (other than indemnification and other contingent obligations for which no claim has been made) or (ii) upon a “change in control”; provided that any payment required pursuant to this clause (ii) is subject to the prior repayment in full of the Obligations (other than indemnification and other contingent obligations for which no claim has been made) that are accrued and payable and the termination of the Commitments); provided further, however, that if such Equity Interest is issued to any employee or to any plan for the benefit of employees of Holdings or any of its subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Stock solely because it may be required to be repurchased by Holdings or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

Documentation Agent” shall mean, for purposes of the Tranche B-4 U.S. Term Loans only, Capital One, National Association.

 

Dollar Equivalent” shall mean, on any date of determination, with respect to any amount denominated in a currency other than Dollars, the equivalentsubject to Section 1.05, for any amount, at the time of determination thereof, (a) if such amount is expressed in Dollars of, such amount, and (b) if such amount is expressed in a Designated Foreign Currency, the equivalent of such amount in Dollars as determined by the Administrative Agent using the Exchange Rate at the time in effect.at such time in its sole discretion by reference to the most recent Spot Rate for such Designated Foreign Currency (as determined as of the most recent Calculation Date) for the purchase of Dollars with such Designated Foreign Currency.

 

Dollars” or “$” shall mean, unless otherwise qualified, dollars in lawful moneycurrency of the United States of America.

 


 

 

Domestic Subsidiary” shall mean any Subsidiary that is incorporated or organized under the laws of the United States of America or any state thereof or the District of Columbia.

Early Opt-in Election” shall mean, solely with respect to the Benchmark for Borrowings and Loans denominated in Euros, the occurrence of:

(1) (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to Holdings) that the Required Lenders have determined that syndicated credit facilities denominated in Euros being executed at such time, or that include language similar to that contained in Section 2.08 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace any applicable Benchmark, and

(2) (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to Holdings and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.

Eligible Assignee” shall mean (a) in the case of Term Loans and Term Loan Commitments, (i) an Affiliated Lender, to the extent contemplated by Section 9.04(m), (ii) a Lender, (iii) an Affiliate of a Lender, (iv) a Related Fund of a Lender and (v) any other Person (other than a natural person) approved by the Administrative Agent and, unless an Event of Default has occurred and is continuing, the applicable Borrowers (each such approval not to be unreasonably withheld or delayed), and (b) in the case of any assignment of a Revolving Credit Commitment, (i) a Revolving Credit Lender, (ii) an Affiliate of a Revolving Credit Lender, (iii) a Related Fund of a Revolving Credit Lender and (iv) any other Person (other than a natural person), in the case of each of the foregoing clauses, approved by the Administrative Agent and each Issuing Bank and, in the case of clauses (b)(ii), (iii) and (iv), unless an Event of Default has occurred and is continuing, the applicable Borrowers (each such approval not to be unreasonably withheld or delayed); provided further that notwithstanding the foregoing, the term “Eligible Assignee” shall not include Holdings, any Borrower or any of their respective Affiliates, except as set forth in clause (a)(i) above.

Environmental Laws” shall mean all Federal, state, local and foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments, binding directives, orders (including consent orders), and binding agreements in each case, relating to the environment, the preservation or reclamation of natural resources, endangered or threatened species, protection of the climate, human health and safety as they relate to exposure to Hazardous Materials, or the presence or Release of, exposure to, or the generation, distribution, use, treatment, storage, transport, recycling or handling of, or the arrangement for such activities with respect to, Hazardous Materials.

Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims, actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including administrative oversight costs, natural resource damages, costs of medical monitoring, remediation costs and reasonable fees and expenses of attorneys and consultants), whether contingent or otherwise, arising out of or relating to (a) compliance or noncompliance with any Environmental Law, (b) the generation, use, handling, distribution, recycling, transportation, storage, treatment or disposal (or the arrangement for such activities) of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Environmental Permits” shall mean any permit, license or other approval required under any Environmental Law.

 


 

 

Equity Interests” shall mean shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any Person, and any option, warrant or other right entitling the holder thereof to purchase or otherwise acquire any such equity interest.

ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time.

ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that, together with Holdings or any Subsidiary is treated as a single employer under Section 414 (b) and (c) of the Code but for purposes of Sections 412 and 430, shall include clauses (m) and (o).

ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived by regulation), (b) the failure of any Plan to satisfy the minimum funding standard applicable to such Plan within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not waived, (c) the filing pursuant to Section 412(c) of the Code or Section 303(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by Holdings, any Material Subsidiary or any ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of Holdings, any Material Subsidiary or any of ERISA Affiliates from any Plan or Multiemployer Plan, (e) the receipt by Holdings or any of its ERISA Affiliates from the PBGC or the administrator of any Plan or Multiemployer Plan of any notice relating to the intention to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan, (f) the adoption of any amendment to a Plan that would require the provision of security pursuant to Section 436(f) of the Code or Section 206 of ERISA, (g) the receipt by Holdings, any Material Subsidiary or any ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from Holdings, any Material Subsidiary or any ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA or in “endangered” or “critical” status within the meaning of Section 305 of ERISA, (h) the occurrence of a non-exempt “prohibited transaction” with respect to which Holdings or any Subsidiary is a “disqualified person” (within the meaning of Section 4975 of the Code) or with respect to which Holdings or any such Subsidiary could otherwise be liable, (i) any Foreign Benefit Event or (j) the occurrence of any other similar event or condition with respect to a Plan or Multiemployer Plan that could result in liability (other than liability incurred in the ordinary course of business) of Holdings or any Material Subsidiary in each case in excess of $10,000,000.

Escrow Subsidiary” shall mean one or more subsidiaries created by Holdings for the purpose of issuing or incurring Indebtedness, the proceeds of which shall be deposited and held in escrow pursuant to customary escrow arrangements pending their use to finance a contemplated Permitted Acquisition. Until such time as the proceeds of such Indebtedness have been released from escrow in accordance with the applicable escrow arrangements (the “Escrow Release Effective Time”), each relevant Escrow Subsidiary shall be deemed not to be a Subsidiary for any purpose of this Agreement and the other Loan Documents; provided that (a) each Escrow Subsidiary shall be identified to the Administrative Agent promptly following its formation (and in any event prior to its incurrence of any Indebtedness) and (b) as of and after the Escrow Release Effective Time, each relevant Escrow Subsidiary shall be a Subsidiary for all purposes of this Agreement and the other Loan Documents unless designated as an Unrestricted Subsidiary in accordance with the terms of this Agreement.

EURIBO Rate” shall mean, with respect to any Eurocurrency Borrowing denominated in Euro for any Interest Period, the rate per annum equal to the Banking Federation of the European Union EURIBO Rate (“BFEA EURIBOR”), as published by Reuters (or another commercially available source providing

 


 

 

quotations of BFEA EURIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Target Days prior to the commencement of such Interest Period, for deposits in Euro (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided that if such rate is not available at such time for any reason, then the “EURIBO Rate” for such Interest Period shall be the Interpolated Rate.

Euro” or “” shall mean the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states.

Eurocurrency”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the EURIBO Rate.

European Borrowers” shall have the meaning assigned to such term in the introductory statement to this Agreement.

European Principal Borrower” shall mean the Luxembourg Borrower or any replacement Principal Borrower with respect to any Credit Facility denominated in Euro designated as set forth in Section 9.21(a)(iii).

European Term Lender” shall mean a Lender with a European Term Loan Commitment or an outstanding European Term Loan.

European Term Loan Commitments” shall have the meaning assigned to the term “Incremental European Term Loan Commitments” in Amendment No. 10. As of the Amendment No. 10 Effective Date, the aggregate outstanding principal amount of European Term Loan Commitments was €250,000,000.

European Term Loan Maturity Date” shall mean February 5, 2023.

European Term Loans” shall mean prior to the 2017 Incremental Term Loan Effective Date, the “Incremental European Term Loans” as defined in Amendment No. 10 and thereafter, the “Incremental European Term Loans” as defined in the Second Incremental Assumption Agreement.

Events of Default” shall mean any of the events specified in clauses (a) through (r) of Article VII; provided that any requirement set forth therein for the giving of notice, the lapse of time, or both, has been satisfied.

Excess Cash Flow” shall mean, for any fiscal year of Holdings the excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such fiscal year and (ii) any decrease in working capital of Holdings and its Subsidiaries from the beginning to the end of such fiscal year as disclosed in the most recent consolidated statement of cashflows of Holdings and its Subsidiaries as changes in trade debtors, inventories and trade creditors over (b) the sum, without duplication, of (i) the amount of any Taxes paid or payable in cash by Holdings and the Subsidiaries with respect to such fiscal year, (ii) Consolidated Interest Expense for such fiscal year paid in cash, (iii) non-recurring fees, expenses or charges paid in cash in connection with the consummation and implementation of the 2016 Restatement Transactions and in connection with any offering of Equity Interests, investment or Indebtedness permitted by this Agreement (whether or not consummated), (iv) Restructuring Costs paid in cash, (v) Cost Savings, (vi) expenses or charges paid in cash which are of an abnormal, unusual, extraordinary or non-recurring nature, (vii) Capital Expenditures made in cash during such fiscal year, except to the extent financed with the proceeds of Indebtedness, equity issuances, casualty proceeds or condemnation proceeds, (viii) the consideration paid

 


 

 

in connection with Permitted Acquisitions (and transaction related fees and expenses, including financing fees, merger and acquisition fees, accounting, due diligence and legal fees and other fees and expenses in connection therewith), in each case paid or made in cash during such fiscal year, except to the extent financed with the proceeds of Indebtedness, equity issuances, casualty proceeds or condemnation proceeds, (ix) the amount of any contributions made during such fiscal year by Holdings or any Subsidiary to any Plan, Multiemployer Plan or Foreign Pension Plan, to the extent not deducted in determining Consolidated EBITDA for such fiscal year, (x) permanent repayments of Indebtedness (other than (w) repurchases of Term Loans made pursuant to Section 2.12(b), (x) mandatory prepayments of Loans under Section 2.13, (y) Voluntary Prepayments and (z) permanent prepayments, repayments, repurchases or redemptions of Senior Secured Notes) made in cash by Holdings and the Subsidiaries during such fiscal year, but only to the extent that the Indebtedness so prepaid by its terms cannot be reborrowed or redrawn and such prepayments are not made with funds received in connection with a refinancing of all or any portion of such Indebtedness, (xi) any increase in working capital of Holdings and its Subsidiaries from the beginning to the end of such fiscal year as disclosed in the most recent consolidated statement of cashflows of Holdings and its Subsidiaries as changes in trade debtors, inventories and trade creditors, (xii) to the extent such Management Fees have been or will be paid in cash by Holdings and its Subsidiaries prior to the end of the following fiscal year (and without duplication of any amounts deducted pursuant to this clause (xii) in respect of any prior fiscal year), the aggregate amount of Management Fees added back in the calculation of Consolidated EBITDA for such fiscal year pursuant to clause (a)(xii) of the definition thereof; provided that, to the extent any Management Fees deducted from Excess Cash Flow pursuant to this clause (xii) are not paid in cash prior to the end of such following fiscal year, the amount of Management Fees deducted from Excess Cash Flow pursuant to this clause (xii) and not so paid shall be added to Excess Cash Flow for such following fiscal year, (xiii) the amount of Investments, loans and advances made in cash pursuant to Sections 6.04 (a), (e), (h), (i), (j), (k), (l), (m), (o), (q), (t) and (z) during such fiscal year (and in any event excluding all investments by Holdings and the Subsidiaries in Holdings or any Subsidiary), except to the extent financed with the proceeds of Indebtedness, equity issuances, casualty proceeds or condemnation proceeds, (xiv) the amount of Restricted Payments paid in cash pursuant to Sections 6.06(a)(iii), (iv), (v) and (viii) during such fiscal year, except to the extent financed with the proceeds of Indebtedness, equity issuances, casualty proceeds or condemnation proceeds, (xv) cash expenditures made under Hedging Agreements during such fiscal year to the extent not deducted in arriving at Consolidated Net Income, (xvi) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash during such fiscal year that are required to be made in connection with any prepayment of Indebtedness and (xvii) at the option of Holdings, the aggregate amount of consideration required to be paid in cash pursuant to binding contracts entered into during or prior to such fiscal year of Holdings with respect to Capital Expenditures and Permitted Acquisitions to be made during the next succeeding fiscal year, in each case except to the extent such cash payments have been or are expected to be financed with the proceeds of Indebtedness, equity issuances, casualty proceeds or condemnation proceeds; provided that, to the extent any such cash payments deducted from Excess Cash Flow pursuant to this clause (xvii) are not paid in cash prior to the end of such following fiscal year, the amount so deducted from Excess Cash Flow pursuant to this clause (xvii) and not so paid shall be added to Excess Cash Flow for such following fiscal year. In calculating the decrease or increase in working capital of Holdings and its Subsidiaries, there shall be excluded the effect of any Permitted Acquisition during such period as well as the impact of movements in foreign currencies.

Exchange Act” shall mean the United States Securities and Exchange Act of 1934, as amended from time to time.

Exchange Rate” shall mean, on any day, with respect to any currency to be translated into Dollars or any Designated Foreign Currency, the rate at which such currency may be exchanged into Dollars or such Designated Foreign Currency, as the case may be, as set forth at approximately 11:00 a.m., New York City time, on such day on the Bloomberg Key Cross Currency Rates Page for such currency. In the event

 


 

 

that such rate does not appear on any Bloomberg Key Cross Currency Rates Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and Holdings, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the primary market where its foreign currency exchange operations in respect of such currency are then being conducted, at or about 10:00 a.m., local time, on such date for the purchase of Dollars or the applicable Designated Foreign Currency, as the case may be, for delivery two Business Days later; provided, however, that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation with Holdings, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.

Excluded Contribution” shall mean the cash proceeds or other assets (valued at their fair market value (as determined reasonably and in good faith by a Responsible Officer of Holdings) received by Holdings from (a) contributions to its common equity capital or (b) the issuance or sale (other than to a Subsidiary or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement) of Equity Interests (other than Disqualified Stock and preferred stock) of Holdings, in each case after the 2016 Restatement Date, to the extent designated as an Excluded Contribution on the date such capital contributions are made or such Equity Interests are sold, as the case may be, pursuant to a certificate signed by a Responsible Officer of Holdings (it being understood that such an Excluded Contribution shall not otherwise be included in the calculation of the Available Amount); provided that in no event shall any Specified Equity Contribution be deemed to be an Excluded Contribution.

Excluded Information” shall mean any non-public information with respect to Holdings or its Subsidiaries or any of their respective securities that could be material to a Lender’s decision to assign, sell or purchase Loans.

Excluded Subsidiary” shall mean:

(a)
each Subsidiary listed on Schedule 1.01(c), being all the Excluded Subsidiaries existing on the 2016 Restatement Date;
(b)
each other Subsidiary formed or acquired after the Closing Date that is not a Wholly Owned Subsidiary of Holdings;
(c)
each Subsidiary that (i) is not organized in a Guarantor Jurisdiction, (ii) as of the last day of the fiscal quarter of Holdings most recently ended for which financial statements are available, did not have gross assets (excluding intra group items but including investments in Subsidiaries) in excess of 1.0% of the Consolidated Total Assets and (iii) for the period of four consecutive fiscal quarters of Holdings most recently ended for which financial statements are available, did not have earnings before interest, tax, depreciation and amortization calculated on the same basis as Consolidated EBITDA in excess of 1.0% of the Consolidated EBITDA;
(d)
each Inactive Subsidiary;
(e)
each Securitization Subsidiary;
(f)
each Unrestricted Subsidiary;

 


 

 

(g)
each Subsidiary which, in accordance with the Agreed Security Principles, is not required to provide a Guarantee with respect to the Obligations and which does not Guarantee the Obligations, any Senior Secured Notes or any Senior Unsecured Notes;
(h)
each other Subsidiary (other than a Borrower or BP I) that Holdings designates in writing to the Administrative Agent as an Excluded Subsidiary; provided that (i) no Default or Event of Default exists at the time of such designation or would result therefrom (including in respect of Section 5.12(b)) and (ii) such Subsidiary is not organized under the laws of (x) the United States, any State thereof or the District of Columbia or (y) in the case of any direct or indirect subsidiary of BP I (other than any such subsidiary that is directly or indirectly owned by a subsidiary of BP I organized under the laws of a jurisdiction other than Luxembourg), Luxembourg, and provided further that following such designation such Subsidiary does not Guarantee any Senior Secured Notes or any Senior Unsecured Notes, it being understood that if such Subsidiary subsequently Guarantees any Senior Secured Notes or any Senior Unsecured Notes it shall immediately cease to be an Excluded Subsidiary under this clause (h) and shall, concurrently therewith, become a Subsidiary Guarantor hereunder; and
(i)
each Captive Insurance Subsidiary.

Excluded Taxes” shall mean (a) Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising solely from such Recipient having executed, delivered, enforced, become a party to, performed its obligations, received payments, received or perfected a security interest under, or engaged in any other transaction pursuant to, this Agreement or any Loan Document), except as provided for in Section 2.14(a), (b) any withholding Taxes resulting from a failure by the applicable Recipient (other than a failure resulting from a Change in Law or from the application of Section 2.20(f)) to comply with Sections 2.20(e) and 2.20(g), (c) in the case of a U.S. Recipient, any U.S. Federal withholding Taxes, except to the extent that (i) such Taxes result from a Change in Law that occurred after the later of the date such U.S. Recipient becomes a party to this Agreement, and the date (if any) such U.S. Recipient designates a new lending office or (ii) amounts with respect to such Taxes were payable pursuant to Section 2.20 to such U.S. Recipient’s assignor immediately before such U.S. Recipient acquired its interest with respect to this Agreement from such assignor or to such U.S. Recipient immediately before it designated such new lending office, as applicable, (d) in the case of a U.S. Recipient that is an intermediary, partnership or other flow-through entity for U.S. Federal income tax purposes, any U.S. Federal withholding Taxes that are imposed based upon the status of a beneficiary, partner or member of such U.S. Recipient, except to the extent that (i) such Taxes result from a Change in Law that occurred after the date on which such beneficiary, partner or member becomes a beneficiary, partner or member of such U.S. Recipient or (ii) amounts with respect to such Taxes were payable pursuant to Section 2.20 to such U.S. Recipient in respect of the assignor (or predecessor in interest) of such beneficiary, partner or member immediately before such beneficiary, partner or member acquired its interest in such U.S. Recipient from such assignor (or predecessor in interest)), and (e) any Taxes arising under FATCA.

Existing Credit Agreement” shall mean the Third Amended and Restated Credit Agreement dated as of September 28, 2012, as amended, supplemented or otherwise modified prior to the 2016 Restatement Date, among Holdings, the Borrowers, the other Subsidiaries of Holdings party thereto, the lenders party thereto and the Administrative Agent.

Existing Letter of Credit” shall mean each Letter of Credit previously issued for the account of a Borrower that (a) is outstanding on the 2024 Revolving Facility Transactions Amendment Effective Date and (b) is listed on Schedule 1.01(a).

 


 

 

Failed Auction” shall have the meaning assigned to such term in Section 2.12(b)(iii).

FATCA” shall mean Section 1471 through 1474 of the Code, as of the 2016 Restatement Date (or any amended or successor version that is substantively comparable), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b) of the Code, any intergovernmental agreement entered into in connection with any of the foregoing and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.

FBR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Foreign Base Rate.

February 2011 6.875% Senior Secured Note Indenture” shall mean the senior secured note Indenture dated as of February 1, 2011, among the U.S. Issuers, the Luxembourg Issuer, the other Loan Parties party thereto and the Indenture Trustee, pursuant to which the February 2011 6.875% Senior Secured Notes were issued.

February 2011 6.875% Senior Secured Notes” shall mean the 6.875% Senior Secured Notes due 2021 issued on February 1, 2011, by the Luxembourg Issuer and the U.S. Issuers in an aggregate principal amount of $1,000,000,000, including any Senior Secured Notes into which such notes may be exchanged in accordance with the provisions of the February 2011 6.875% Senior Secured Note Indenture.

February 2011 8.250% Senior Unsecured Note Indenture” shall mean the senior unsecured note Indenture dated as of February 1, 2011, among the U.S. Issuers, the Luxembourg Issuer, the other Loan Parties party thereto and The Bank of New York Mellon, as trustee, pursuant to which the February 2011 8.250% Senior Unsecured Notes were issued.

February 2011 8.250% Senior Unsecured Notes” shall mean the 8.250% Senior Unsecured Notes due 2021 issued on February 1, 2011, by the Luxembourg Issuer and the U.S. Issuers in an aggregate principal amount of $1,000,000,000, including any Senior Unsecured Notes into which such notes may be exchanged in accordance with the provisions of the February 2011 8.250% Senior Unsecured Note Indenture.

February 2012 9.875% Senior Unsecured Note Indenture” shall mean the senior unsecured note Indenture dated as of February 15, 2012, among the U.S. Issuers, the Luxembourg Issuer, the other Loan Parties party thereto and The Bank of New York Mellon, as trustee, pursuant to which the February 2012 9.875% Senior Unsecured Notes were issued.

February 2012 9.875% Senior Unsecured Notes” shall mean the Senior Unsecured Notes issued on February 15, 2012, by the Luxembourg Issuer and the U.S. Issuers in an aggregate principal amount of $1,250,000,000 to the extent not exchanged for August 2011 9.875% Senior Unsecured Notes, including any Senior Unsecured Notes into which such notes may be exchanged in accordance with the provisions of the February 2012 9.875% Senior Unsecured Note Indenture.

Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it; provided that in no event shall the Federal Funds Effective Rate be less than 0.00% per annum.

 


 

 

Fee LettersLetter” shall mean (i) the engagement letter dated July 14, 2016, among Holdings, the Term Loan Facility Administrative Agent and Credit Suisse Securities (USA) LLC and (ii) the engagement letter dated April 30, 2024, between Holdings and Wells Fargo Securities, LLC.

Fees” shall mean the the Unused Commitment Fees, the Administrative Agent Fees, the L/C Participation Fees and the Issuing Bank Fees.

Financial Officer” of any Person shall mean the chief financial officer, principal accounting officer, treasurer or controller of such Person.

First Incremental Assumption Agreement” shall mean the Incremental Assumption Agreement dated as of October 7, 2016, relating to this Agreement.

First Lien Intercreditor Agreement” shall mean the Intercreditor Agreement dated as of November 5, 2009, as amended on January 21, 2010, among the Administrative Agent, the Indenture Trustee, the Collateral Agents, the grantors party thereto and each additional representative from time to time party thereto, attached hereto as Exhibit G.

First Restatement Date” shall mean February 9, 2011.

Fixed Charge Coverage Ratio” shall have the meaning assigned to such term in the June 2016 Senior Secured Note Indenture as in effect on the 2016 Restatement Date (whether or not in effect and whether or not any Indebtedness issued thereunder is outstanding at the time) (it being understood that defined terms used in such definition shall also have the meaning assigned to such terms in such indenture and that the Fixed Charge Coverage Ratio shall be calculated in accordance with the rules set forth in such indenture).

Foreign Base Rate” shall mean, for any day, (a) with respect to amounts denominated in Euros, the EURIBO Rate on such day for a three month Interest Period commencing on the second Business Day after such day plus 1%, and (b) with respect to amounts denominated in a Designated Foreign Currency other than Euros, the “Foreign Base Rate” as defined in the applicable Incremental Assumption Agreement; provided that in no event shall the Foreign Base Rate be less than 0.00% per annum.

Foreign Benefit Event” shall mean, with respect to any Foreign Pension Plan, (a) the existence of unfunded liabilities in excess of the amount of unfunded liabilities permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable law, on or before the due date for such contributions or payments, (c) the receipt of a notice by a Governmental Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan, (d) the incurrence of any liability in excess of $25,000,000 by Holdings or any Subsidiary under applicable law on account of the complete or partial termination of such Foreign Pension Plan or the complete or partial withdrawal of any participating employer therein or (e) the occurrence of any transaction that is prohibited under any applicable law and that could reasonably be expected to result in the incurrence of any liability by Holdings or any Subsidiary, or the imposition on Holdings or any Subsidiary of any fine, excise tax or penalty resulting from any noncompliance with any applicable law, in each case in excess of $50,000,000.

Foreign Collateral Agreement” shall mean each security agreement that is stated to be governed by the law of a jurisdiction outside of the United States and that is required by the Administrative Agent and any Collateral Agent to grant Liens in certain of the assets of the Loan Parties party thereafter in favor of such Collateral Agent and/or the “Pledgees” (as defined therein), for the benefit of the “Secured Parties”

 


 

 

and/or the “Pledgees” (each as defined therein), in form and substance reasonably satisfactory to the Administrative Agent and such Collateral Agent and subject to the Agreed Security Principles.

Foreign Pension Plan” shall mean any benefit plan that under applicable law outside of the United States is required to be funded through a trust or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority, provided that, for the avoidance of doubt, a “Foreign Pension Plan” does not include a “Plan”.

Foreign Subsidiary” shall mean a Subsidiary that is not a Domestic Subsidiary.

GAAP” shall initially mean IFRS; provided, however, that from and after the effectiveness of any change permitted by Section 6.136.10(b) until the effective time of any subsequent change permitted by Section 6.136.10(b), “GAAP” shall mean the accounting principles used for financial reporting by Holdings at the effective time of such change.

Governmental Authority” shall mean any Federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body.

Graeme Hart” shall mean (a) Mr. Graeme Richard Hart (or his estate, heirs, executor, administrator or other personal representative, or any of his immediate family members or any trust, fund or other entity which is controlled by his estate, heirs or any of his immediate family members), and any of his or their Affiliates (each a “Hart Party”) and (b) any Person that forms a group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision) with any Hart Party; provided that in the case of clause (b), (i) one or more Hart Parties own a majority of the voting power of the Equity Interests of Holdings or any Parent Company, as applicable, (ii) no other Person has beneficial ownership of any of the Equity Interests included in determining whether the threshold set forth in clause (i) has been satisfied and (iii) one or more Hart Parties control a majority of the Board of Directors of Holdings or any Parent Company, as applicable.

Graham Packaging” shall mean Graham Packaging Holdings Company, a Pennsylvania limited partnership.

Graham Packaging Closing Date” shall mean the “Closing Date” as defined in Amendment No. 6.

Graham Packaging Transactions” shall mean the “Transactions” as defined in Amendment No. 6.

Granting Lender” shall have the meaning assigned to such term in Section 9.04(j).

Guarantee” of or by any Person shall mean any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Indebtedness or other obligation, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation; provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.

 


 

 

Guarantor Joinder” shall mean a joinder agreement to this Agreement entered into by a Subsidiary Guarantor and accepted by the Administrative Agent, in the form of Exhibit D or such other form as shall be approved by the Administrative Agent.

Guarantor Jurisdiction” shall mean a jurisdiction where one or more Loan Parties is organized.

Guarantors” shall mean Holdings, BP I, the Borrowers and the Subsidiary Guarantors.

Hazardous Materials” shall mean (a) any petroleum products or byproducts and all other hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical, material, substance or waste that is prohibited, limited or regulated by or pursuant to any Environmental Law.

Hedge Provider” shall mean each counterparty to any Hedging Agreement with a Loan Party (or any other Subsidiary, if such Hedge Agreement is entered into in the ordinary course of business of such Subsidiary and related to the operations of Holdings and its Subsidiaries) that either (i) is in effect on the 2016 Restatement Date if such counterparty is the Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender as of the 2016 Restatement Date or (ii) is entered into after the 2016 Restatement Date if such counterparty is Administrative Agent, a Lender or an Affiliate of the Administrative Agent or a Lender at the time such Hedging Agreement is entered into; provided that, in each case, such Person has executed and delivered to the Administrative Agent an Additional Bank Secured Party Acknowledgment, which has not been cancelled.

Hedging Agreement” shall mean any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.

Holdings” shall have the meaning assigned to such term in the introductory statement to this Agreement.

IFRS” shall mean International Financial Reporting Standards issued by the International Accounting Standards Board applied on a consistent basis.

Immaterial Subsidiary” shall mean any Subsidiary that (a) as of the last day of the fiscal quarter of Holdings most recently ended for which financial statements are available, did not have gross assets (excluding intra group items but including investments in Subsidiaries) in excess of 5.0% of the Consolidated Total Assets and (b) for the period of four consecutive fiscal quarters of Holdings most recently ended for which financial statements are available, did not have earnings before interest, tax, depreciation and amortization calculated on the same basis as Consolidated EBITDA in excess of 5.0% of the Consolidated EBITDA; provided that if the Immaterial Subsidiaries taken as a whole would have, as of the last day of the fiscal quarter of Holdings most recently ended for which financial statements are available, gross assets (excluding intra group items but including investments in Subsidiaries, without duplication) in excess of 10.0% of the Consolidated Total Assets or would have, for the most recently ended period of four consecutive fiscal quarters of Holdings for which financial statements are available, aggregate earnings before interest, tax, depreciation and amortization calculated on the same basis as Consolidated EBITDA in excess of 10.0% of the Consolidated EBITDA, then Holdings shall designate one or more of such Subsidiaries to cease being Immaterial Subsidiaries to the extent necessary to eliminate such excess, and upon such designation such designated Subsidiaries shall cease to be Immaterial Subsidiaries. On the 2016 Restatement Date, a Responsible Officer of Holdings shall deliver a certificate certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list

 


 

 

individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitations set forth above.

Inactive Subsidiary” shall mean any Subsidiary (other than BP I and the Borrowers) that (a) does not conduct any material business operations, (b) has assets with a book value not in excess of $1,000,000 and (c) does not have any Indebtedness outstanding.

Incremental Assumption Agreement” shall mean an Incremental Assumption Agreement among, and in form and substance reasonably satisfactory to, each applicable Borrower, the Administrative Agent and one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as the case may be.

Incremental Dollar Amount” shall have the meaning assigned to such term in the definition of Incremental Facility Amount.

Incremental Facility Amount” shall mean, on any date of determination, an amount equal to (a) the excess, if any, of (i) $750,000,000 (it being understood that such amount shall not be subject to reduction as a result of the making of the U.S. Term Loans (as such term was defined on the 2016 Restatement Date) and the European Term Loans (as such term was defined on the 2016 Restatement Date) on the 2016 Restatement Date or as a result of the establishment after the 2016 Restatement Date of Incremental Revolving Credit Commitments in an aggregate principal amount of up to $97,700,000 (the “Specified Incremental Revolving Amount”)) over (ii) the sum of (i) the aggregate amount of all Incremental Term Loan Commitments and Incremental Revolving Credit Commitments, in each case, established pursuant to Section 2.23 after the 2016 Restatement Date and prior to such date of determination in reliance on this clause (a) and (ii) the aggregate principal amount of Indebtedness incurred pursuant to Section 6.01(m) after the 2016 Restatement Date and prior to such date of determination; provided, however, that to the extent (A) the proceeds of any Incremental Term Loans made after the 2016 Restatement Date are used concurrently with the incurrence thereof to prepay then outstanding Term Loans of a Class or Classes and (B) concurrently with the establishment of any Incremental Revolving Credit Commitments, the then outstanding Revolving Credit Commitments of a Class or Classes are permanently reduced on a pro tanto basis, the establishment of such Incremental Term Loan Commitments and Incremental Revolving Credit Commitments shall not reduce the Incremental Facility Amount determined pursuant to this clause (a)(the “Incremental Dollar Amount”) plus (b) the maximum principal amount of Indebtedness that, if fully drawn on such date of determination, would not cause the Total Secured Leverage Ratio, calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and the application of proceeds therefrom (but without netting the proceeds thereof), to exceed 4.5 to 1.0 (the “Incremental Ratio Amount”). Notwithstanding anything to the contrary contained herein, if established, the Specified Incremental Revolving Amount shall be implemented pursuant to clause (a) above.

Incremental Lender” shall mean an Incremental Revolving Credit Lender or an Incremental Term Lender.

Incremental Ratio Amount” shall have the meaning assigned to such term in the definition of Incremental Facility Amount.

Incremental Revolving Credit Commitment” shall mean any increased or incremental Revolving Credit Commitment provided pursuant to Section 2.23.

Incremental Revolving Credit Lender” shall mean a Lender with an Incremental Revolving Credit Commitment or an outstanding Revolving Loan of any Class as a result of an Incremental Revolving Credit Commitment.

 


 

 

Incremental Revolving Loan” shall mean Revolving Loans made by one or more Lenders to one or more Borrowers pursuant to their Incremental Revolving Credit Commitments. Incremental Revolving Loans may be made in the form of additional Revolving Loans or, to the extent permitted by Section 2.23 and provided for in the relevant Incremental Assumption Agreement, Other Revolving Loans.

Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.

Incremental Term Loan Commitment” shall mean the commitment of any Lender, established pursuant to Amendment No. 10 or Section 2.23, to make Incremental Term Loans to one or more Term Borrowers, and shall include the U.S. Term Loan Commitments and the European Term Loan Commitments.

Incremental Term Loan Maturity Date” shall mean, with respect to any Incremental Term Loans made after the 2016 Restatement Date, the final maturity date of such Incremental Term Loans, as set forth in the applicable Incremental Assumption Agreement.

Incremental Term Loan Repayment Dates” shall mean, with respect to any Incremental Term Loans made after the 2016 Restatement Date, the dates scheduled for the repayment of principal thereof, as set forth in the applicable Incremental Assumption Agreement.

Incremental Term Loans” shall mean Term Loans made by one or more Lenders to one or more Term Borrowers pursuant to Section 2.01(b). Incremental Term Loans may be made in the form of additional Term Loans or, to the extent permitted by Section 2.23 and provided for in the relevant Incremental Assumption Agreement, Other Term Loans.

Indebtedness” of any Person shall mean, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) [reserved], (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) net obligations of such Person under any Hedging Agreements, valued at the Agreement Value thereof, (j) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests of such Person or any other Person or any warrants, rights or options to acquire such equity interests, valued, in the case of redeemable preferred interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends, (k) all obligations of such Person as an account party in respect of letters of credit and bank guarantees, (l) all obligations of such Person in respect of bankers’ acceptances and (m) with respect to Holdings and the Subsidiaries, the Securitization Amount; provided that Indebtedness shall not include (A) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy unperformed obligations of the seller of such asset or (B) earn-out and other contingent obligations until such obligations become a liability on the balance sheet of such Person in accordance with GAAP; provided, further, that if any Indebtedness under clause (f) is recourse only to the property so securing it, then the amount thereof shall be deemed to be equal to the lesser of the aggregate principal amount of such Indebtedness and the fair market value of such property. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner.

 


 

 

Indemnified Taxes” shall mean Taxes (including Other Taxes), other than Excluded Taxes.

Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).

Indenture Trustee” shall mean The Bank of New York Mellon, in its capacity as trustee under each of the February 2011 6.875% Senior Secured Note Indenture, the September 2012 5.750% Senior Secured Note Indenture, and the June 2016 Senior Secured Note Indenture.

Independent Accountant” shall mean PricewaterhouseCoopers or other independent public accountants of recognized national standing.

Information” shall have the meaning assigned to such term in Section 9.16.

Intercreditor Agreements” shall mean the First Lien Intercreditor Agreement, the 2007 Intercreditor Agreement, the November 2013 Intercreditor Agreement, the Other Intercreditor Agreements, if any, and the Junior Lien Intercreditor Agreements, if any.

Interest Payment Date” shall mean (a) with respect to any Daily Rate Loan, the last Business Day of each March, June, September and December, and (b) with respect to any Eurocurrency Loan or Term SOFR Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency Borrowing or Term SOFR Borrowing with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing.

Interest Period” shall mean, with respect to any Eurocurrency Borrowing or Term SOFR Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that is 1, 2 (solely in the case of any Eurocurrency Borrowing), 3 or 6 months or, to the extent agreed to by all affected Lenders and the Administrative Agent, 12 months or a period of less than one month thereafter, as the applicable Borrowers may elect; provided, however, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period and (iii) no Interest Period for any Loan shall extend beyond the maturity date of such Loan. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing. Notwithstanding the foregoing, the Interest Period with respect to the initial borrowing of the Tranche B-3-4 U.S. Term Loans shall be a period commencing on the 2021 Specified Refinancing and Incremental2024 Tranche B-4 U.S. Term Loan Transactions Amendment Effective Date and ending on October 29June 30, 20212024.

Interpolated Rate” shall mean, in relation to the EURIBO Rate for any Borrowing, the rate which results from interpolating on a linear basis between: (a) the rate appearing on the Reuters screen (or another commercially available source as designated by the Administrative Agent from time to time) for the EURIBO Rate, in each case, for the longest period (for which that rate is available) which is less than the Interest Period for such Borrowing and (b) the rate appearing on such screen or other source, as the case may be, for the shortest period (for which that rate is available) which exceeds the Interest Period for such

 


 

 

Borrowing, each as of approximately 11:00 A.M., London time, two Target Days prior to the commencement of such Interest Period.

Investment Fund” means an Affiliate of Parent Company (other than a natural person) that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course and with respect to which none of Parent Company, Holdings or any of its subsidiaries possesses, directly or indirectly, the power to make, cause or direct the individual investment decisions for such entity, in each case identified as such in any related Assignment and Acceptance and reasonably acceptable to the Administrative Agent.

IRS” shall mean the United States Internal Revenue Service.

Issuing Bank” shall mean, as the context may require, (a) UBS AG, Stamford Branch and HSBC Bank USA, National Association, in each case acting through any of its Affiliates or branches, in its capacity as issuer of Existing Letters of Credit, (b) each of the Revolving Credit Lenders with an L/C Commitment set forth on Schedule 2.01, in each case acting through any of its Affiliates or branches, in its capacity as an issuer of Letters of Credit hereunder and (c) any other Lender that may become an Issuing Bank pursuant to Section 2.22(i) or 2.22(k), with respect to Letters of Credit issued by such Lender. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates or branches of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate or branch with respect to Letters of Credit issued by such Affiliate or branch.

Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.05(c).

Joint Bookrunners” shall mean (a) for all purposes other than in connection with the Revolving Credit Commitments or the Tranche B-4 U.S. Term Loans, Credit Suisse Securities (USA) LLC and HSBC Securities (USA) Inc. and, (b) for purposes of the Revolving Credit Commitments only, Wells Fargo Securities, LLC, BofA Securities, Inc., Citibank, N.A., Goldman Sachs Bank USA, HSBC Securities (USA) Inc., JPMorgan Chase Bank, N.A., Cooperatieve Rabobank U.A., New York Branch, UBS Securities LLC, BMO Capital Markets Corp., BNP Paribas Securities Corp, Mizuho Bank, Ltd., Sumitomo Mitsui Banking Corporation, TD Securities (USA) LLC, Truist Securities, Inc. and KeyBanc Capital Markets Inc., and (c) for purposes of the Tranche B-4 U.S. Term Loans only, Wells Fargo Securities, LLC, BofA Securities, Inc., Citibank, N.A., Goldman Sachs Bank USA, HSBC Securities (USA) Inc., J.P. Morgan Securities LLC, Rabo Securities USA, Inc., UBS Securities LLC, BMO Capital Markets Corp., BNP Paribas Securities Corp., Mizuho Securities USA LLC; SMBC Nikko Securities America, Inc., TD Securities (USA) LLC, Truist Securities, Inc. and KeyBanc Capital Markets Inc.

 

Joint Lead Arrangers” shall mean (a) for all purposes other than in connection with the Revolving Credit Commitments or the Tranche B-4 U.S. Term Loans, Credit Suisse Securities (USA) LLC and HSBC Securities (USA) Inc. and (b) for purposes of the Revolving Credit Commitments only, Wells Fargo Securities, LLC, BofA Securities, Inc., Citibank, N.A., Goldman Sachs Bank USA, HSBC Securities (USA) Inc., JPMorgan Chase Bank, N.A., Cooperatieve Rabobank U.A., New York Branch, UBS Securities LLC, BMO Capital Markets Corp., BNP Paribas Securities Corp, Mizuho Bank, Ltd.s, Sumitomo Mitsui Banking Corporation, TD Securities (USA) LLC, Truist Securities, Inc. and KeyBanc Capital Markets Inc., and (c) for purposes of the Tranche B-4 U.S. Term Loans only, Wells Fargo Securities, LLC, BofA Securities, Inc., Citibank, N.A., Goldman Sachs Bank USA, HSBC Securities (USA) Inc., J.P. Morgan Securities LLC, Rabo Securities USA, Inc., UBS Securities LLC, BMO Capital Markets Corp., BNP Paribas Securities Corp., Mizuho Securities USA LLC; SMBC Nikko Securities America, Inc., TD Securities (USA) LLC, Truist Securities, Inc. and KeyBanc Capital Markets Inc.

 

 


 

 

June 2016 5.125% Senior Secured Notes” shall mean the 5.125% Senior Secured Notes due 2023 issued by the Luxembourg Issuer and the U.S. Issuers on June 27, 2016, in an aggregate principal amount of $1,350,000,000, and on August 1, 2016 in an aggregate principal amount of $250,000,000, including any Senior Secured Notes into which such notes may be exchanged in accordance with the provisions of the June 2016 5.125% Senior Secured Note Indenture.

June 2016 Senior Secured Floating Rate Notes” shall mean the floating rate Senior Secured Notes due 2021 issued on June 27, 2016, by the Luxembourg Issuer and the U.S. Issuers in an aggregate principal amount of $750,000,000, including any Senior Secured Notes into which such notes may be exchanged in accordance with the provisions of the June 2016 Senior Secured Floating Rate Note Indenture.

June 2016 Senior Secured Notes” shall mean the June 2016 5.125% Senior Secured Notes and the June 2016 Senior Secured Floating Rate Notes.

June 2016 Senior Secured Notes Indenture” shall mean the senior secured note Indenture dated as of June 27, 2016, among the U.S. Issuers, the Luxembourg Issuer, the other Loan Parties party thereto and the Indenture Trustee, pursuant to which the June 2016 5.125% Senior Secured Notes and June 2016 Senior Secured Floating Rate Notes were issued.

June 2016 7.000% Senior Unsecured Note Indenture” shall mean the senior unsecured note Indenture dated as of June 27, 2016, among the U.S. Issuers, the Luxembourg Issuer, the other Loan Parties party thereto and The Bank of New York Mellon, as trustee, pursuant to which the June 2016 7.000% Senior Unsecured Notes were issued.

June 2016 7.000% Senior Unsecured Notes” shall mean the 7.000% Senior Unsecured Notes due 2024 issued on June 27, 2016, by the Luxembourg Issuer and the U.S. Issuers in an aggregate principal amount of $800,000,000, including any Senior Unsecured Notes into which such notes may be exchanged in accordance with the provisions of the June 2016 7.000% Senior Unsecured Note Indenture.

Junior Lien Intercreditor Agreements” shall mean one or more intercreditor agreements substantially in the form of Exhibit I or such other form as shall be reasonably satisfactory to both Holdings and the Administrative Agent.

Latest Term Loan Maturity Date” shall mean, at any date of determination, the latest maturity date applicable to any Term Loans or Term Loan Commitment hereunder at such time, in each case as extended in accordance with this Agreement from time to time.

L/C Commitment” shall mean, with respect to each Issuing Bank, the commitment of such Issuing Bank to issue Letters of Credit hereunder. The initial amount of each Issuing Bank’s L/C Commitment is set forth on Schedule 2.01, or if an Issuing Bank has entered into an Assignment and Assumption or became an Issuing Bank pursuant to an agreement designating it as contemplated by Section 2.22(i) or 2.22(k), the amount set forth for such Issuing Bank as its L/C Commitment in the Register maintained by the Administrative Agent or in such agreement.

L/C Disbursement” shall mean a payment or disbursement made by any Issuing Bank pursuant to a Letter of Credit issued by such Issuing Bank.

L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time that are denominated in Dollars, plus the Dollar Equivalent at such time of the aggregate undrawn amount of all outstanding Letters of Credit denominated in a Designated Foreign Currency at such time and (b) the aggregate principal amount of all L/C Disbursements in respect

 


 

 

of Letters of Credit denominated in Dollars, plus the Dollar Equivalent at such time of the aggregate principal amount of all L/C Disbursements in respect of Letters of Credit denominated in Designated Foreign Currencies, in each case that have not yet been reimbursed by or on behalf of the Revolving Borrowers at such time. The L/C Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate L/C Exposure at such time.

L/C Participation Fees” shall have the meaning assigned to such term in Section 2.05(c).

Legal Reservations” shall mean (a) the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, bankruptcy, reorganization and other laws generally affecting the rights of creditors; (b) the time barring of claims under any applicable laws, the possibility that an undertaking to assume liability for or indemnify a Person against non-payment of Taxes may be void and defenses of set-off or counterclaim; (c) similar principles, rights and defenses under the laws of any relevant jurisdiction; and (d) any other matters of law of general application which may limit validity, enforceability or perfection in any relevant jurisdiction.

Lenders” shall mean (a) the Persons listed on Schedule 2.01 and (b) any Person that has become a party hereto pursuant to an Assignment and Acceptance or an Incremental Assumption Agreement (other than, in the case of clauses (a) and (b), any such Person that has ceased to be a party hereto pursuant to an Assignment and Acceptance).

Letter of Credit” shall mean any standby letter of credit (which shall not include any trade letter of credit) issued pursuant to Section 2.22 and any Existing Letter of Credit.

Lien” shall mean, with respect to any asset, (a) any mortgage, trust declared for the purpose of creating a security interest in an asset, lien, pledge, encumbrance, charge or security interest in or on such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing).

Limited Condition Acquisition” shall mean any acquisition which Holdings or one or more of its Subsidiaries has contractually committed to consummate, the terms of which do not condition Holdings’ or its Subsidiary’s, as applicable, obligation to close such acquisition on the availability of third-party financing.

Loan Documents” shall mean this Agreement, each amendment to this Agreement (including each Incremental Assumption Agreement), the Letters of Credit, the Security Documents, each Loan Modification Agreement, each Specified Refinancing Amendment, the Intercreditor Agreements, each Additional Bank Secured Party Acknowledgment and the promissory notes, if any, executed and delivered pursuant to Section 2.04(e).

Loan Modification Agreement” shall mean a Loan Modification Agreement in form and substance reasonably satisfactory to the Administrative Agent, Holdings, the other Loan Parties and one or more Accepting Lenders.

Loan Modification Offer” shall have the meaning assigned to such term in Section 2.24(a).

Loan Parties” shall mean Holdings, the Borrowers and the Subsidiary Guarantors.

Loan Parties’ Agent” shall mean Holdings.

 


 

 

Loans” shall mean the Revolving Loans and the Term Loans.

Local Facility” or “Secured Local Facility” shall mean a working capital facility provided to a Subsidiary (other than BP I and the Borrowers) by a Local Facility Provider.

Local Facility Provider” means a lender or other bank or financial institution that has executed and delivered to the Administrative Agent an Additional Bank Secured Party Acknowledgment with respect to a working capital facility provided to a Subsidiary (other than BP I and the Borrowers).

Local Time” shall mean, in relation to any Borrowing by (a) the U.S. Borrowers, New York City time, and (b) the European Borrowers, London time.

Luxembourg Borrower” shall have the meaning assigned to such term in the introductory statement to this Agreement.

Luxembourg Issuer” shall mean Reynolds Group Issuer (Luxembourg) S.A., société anonyme and a Wholly Owned Subsidiary of Holdings, with a registered office at 6, rue Gabriel Lippmann, L-5365 Munsbach, Luxembourg and registered with the Luxembourg register of commerce and companies under number B 148.957 and its successors.

Management Fees” shall mean any management, consulting, monitoring or advisory fees to a Parent Company or an Affiliate thereof; provided that (i) the aggregate amount of any such management, consulting, monitoring or advisory fees paid to a Parent Company or an Affiliate thereof in respect of fiscal years 2009 and 2010 shall not exceed $37,000,000 in the aggregate regardless of the fiscal year in which such payments occur (it being understood that such payment may occur after the 2016 Restatement Date) and (ii) the aggregate amount of any such management, consulting, monitoring or advisory fees paid to a Parent Company or an Affiliate thereof in any fiscal year (excluding any amounts paid in respect of fiscal years 2009 and 2010, which shall be subject to the foregoing clause (i)) shall not exceed an amount equal to 1.5% of Consolidated EBITDA of Holdings for the immediately preceding fiscal year (but calculated for purposes of this definition without giving effect to any addition to such Consolidated EBITDA pursuant to clause (a)(xii) of the definition thereof).

Management Group” shall mean the group consisting of the directors, executive officers and other management personnel of Holdings or any Parent Company, as the case may be, on the 2016 Restatement Date together with (a) any new directors whose election by such boards of directors or whose nomination for election by the shareholders of Holdings or any Parent Company, as applicable, was approved by a vote of a majority of the directors of Holdings or any Parent Company, as applicable, then still in office who were either directors on the 2016 Restatement Date or whose election or nomination was previously so approved and (b) executive officers and other management personnel of Holdings or Parent Company, as applicable, hired at a time when the directors on the 2016 Restatement Date together with the directors so approved constituted a majority of the directors of Holdings or Parent Company, as applicable.

Margin Stock” shall have the meaning assigned to such term in Regulation U.

Material Adverse Effect” shall mean (a) a materially adverse effect on the business, assets, liabilities, operations, condition (financial or otherwise) or operating results of Holdings and the Subsidiaries, taken as a whole, or (b) a material impairment of the rights and remedies available to the Lenders, taken as a whole, under any Loan Document (other than one or more Security Documents that purport to create security interests in Collateral with an aggregate fair market value at any time less than $100,000,000).

 


 

 

Material Indebtedness” shall mean Indebtedness (other than the Loans and Letters of Credit) of any one or more of Holdings or any Subsidiary in an aggregate principal amount exceeding $150,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of Holdings or any Subsidiary in respect of any Hedging Agreement at any time shall be the Agreement Value of such Hedging Agreement at such time.

Material Subsidiary” shall mean any Subsidiary that is not an Immaterial Subsidiary.

Maximum Rate” shall have the meaning assigned to such term in Section 9.09.

Minimum Exchange Tender Condition” shall have the meaning assigned to such term in Section 2.26(b).

Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.

Mortgaged Properties” shall mean, as of the 2016 Restatement2024 Tranche B-4 U.S. Term Loan Transactions Amendment Effective Date, the owned real properties of the Loan Parties specified on Schedule 1.01(d), and shall include each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to Section 5.12 or has been granted (and not previously released) pursuant to Section 5.12 of any of the Prior Credit Agreements.

Mortgages” shall mean, collectively, the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, and other security documents delivered with respect to the Mortgaged Properties, each in form and substance reasonably satisfactory to the Administrative Agent and the applicable Collateral Agent.

Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Cash Proceeds” shall mean (a) the aggregate cash proceeds (including any Contingent SIG Proceeds) received by Holdings or any Subsidiaries in respect of any Asset Sale (including any cash received in respect of or upon the sale or other disposition of any Designated Non-Cash Consideration received in any Asset Sale and any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, and specifically excluding the assumption by the acquiring Person of Indebtedness relating to the disposed assets or other consideration received in any other non-cash form), less, in the case of the sale by Holdings or any Subsidiary of an Equity Interest in another Person, an amount equal to the amount of cash and Permitted Investments remaining on the balance sheet of such Person immediately after the closing of the sale (or if the Equity Interest sold by Holdings or any Subsidiary represents less than all of the Equity Interests in such Person, only the pro rata portion of such cash and Permitted Investments attributable to the Equity Interest sold by Holdings or any Subsidiary), and net of the costs and expenses relating to and in respect of such Asset Sale and the sale or disposition of such Designated Non-Cash Consideration (including legal, accounting and investment banking fees, brokerage and sales commissions and foreign currency hedging expenses), any relocation expenses incurred as a result thereof, all U.S. federal, state, provincial, foreign and local taxes required to be paid or to be accrued as a liability under GAAP, in each case as a consequence of, or in respect of, such Asset Sale (including as a consequence of any transfer of funds in connection with the application thereof in accordance with Section 2.13(b)) and determined without taking into account any available tax credits, losses or deductions or any tax sharing arrangements), amounts required to be applied to the repayment of principal, premium (if any) and interest on Indebtedness required to be paid as a result of such transaction by the terms of such Indebtedness (other than any Indebtedness secured by Liens on the Collateral ranking pari passu with, or junior to, the Liens securing the Bank Obligations, and the Bank

 


 

 

Obligations) or in order to obtain a necessary consent to the relevant Asset Sale or by applicable law, any deduction of appropriate amounts to be provided by Holdings as a reserve in accordance with GAAP against any liabilities associated with the asset disposed in such transaction and retained by Holdings after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction and, in the case of an Asset Sale by a non-Wholly Owned Subsidiary, the pro rata portion of the cash proceeds thereof attributable to minority interests and not available for distribution to or for the account of Holdings or a Wholly Owned Subsidiary as a result thereof; provided, however, that, if (A) Holdings shall deliver a notice to the Administrative Agent at the time of receipt thereof electing to retain all or any portion of such proceeds for Reinvestment within 12 months of receipt of such proceeds and (B) no Default or Event of Default shall have occurred and shall be continuing at the time of delivery of such notice, such retained portion of such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such 12-month period (or, if Holdings or a Subsidiary shall have entered into a legally binding commitment to Reinvest such proceeds within such 12-month period, within 180 days following the end of such 12-month period), or to the extent that at any time prior to the end of such 12-month (or 18-month, as the case may be) period Holdings notifies the Administrative Agent that it elects not to pursue such Reinvestment, at which time such retained portion of such proceeds shall be deemed to be Net Cash Proceeds and (b) with respect to any issuance of Equity Interests by, any capital contribution to, or the issuance or incurrence of Indebtedness by Holdings or any Subsidiary, the cash proceeds thereof, net of all taxes and customary fees, commissions, costs and other expenses incurred in connection therewith.

Non-Consensual Asset Sale” shall mean any sale, transfer or other disposition (a) that gives rise to any property or casualty insurance claim or (b) that arises in connection with any taking under power of eminent domain or by condemnation or similar proceeding of or relating to any property or asset of Holdings or any Subsidiary.

Non-Consenting Lender” shall have the meaning assigned to such term in Section 2.21(a).

Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting Lender at such time.

Non-Recurring Charges” shall mean, in respect of any period, charges which are of an abnormal, unusual or non-recurring nature; provided that a certificate of a Financial Officer of Holdings, certifying that such charges are fair and accurate, and in form reasonably satisfactory to the Administrative Agent shall have been delivered to the Administrative Agent.

November 2013 Intercreditor Agreement” shall mean the Intercreditor Agreement dated as of November 15, 2013, among Holdings, BP I, the other obligors signatory thereto, Credit Suisse AG, as Administrative Agent, and The Bank of New York Mellon as High Yield Noteholders Trustee.

November 2013 5.625% Senior Unsecured Note Documents” shall mean the November 2013 5.625% Senior Unsecured Note Indenture and all other instruments, agreements and other documents evidencing or governing the November 2013 5.625% Senior Unsecured Notes or providing for any Guarantee or other right in respect thereof.

November 2013 5.625% Senior Unsecured Note Indenture” shall mean the senior unsecured note Indenture dated as of November 15, 2013, among BP II, and Beverage Packaging Holdings II Issuer Inc., the other Loan Parties party thereto and The Bank of New York Mellon, as trustee, pursuant to which the November 2013 5.625% Senior Unsecured Notes were issued.

 


 

 

November 2013 5.625% Senior Unsecured Notes” shall mean the 5.625% senior unsecured notes due 2016 issued on November 15, 2013 by BP II and Beverage Packaging Holdings II Issuer Inc., in the aggregate principal amount of $642,000,000.

Obligations” shall have the meaning assigned to such term in the First Lien Intercreditor Agreement.

October 2020 4.000% Senior Secured Note Indenture” shall mean the senior secured note indenture dated as of October 1, 2020, among the U.S. Issuers, the other Loan Parties party thereto and Wilmington Trust, National Association, as trustee, pursuant to which the October 2020 4.000% Senior Secured Notes were issued.

October 2020 4.000% Senior Secured Notes” shall mean the senior secured notes issued on October 1, 2020, by the U.S. Issuers in an aggregate principal amount of $1,000,000,000, including any senior secured notes into which such notes may be exchanged in accordance with the provisions of the October 2020 4.000% Senior Secured Notes Indenture.

OFAC” shall have the meaning assigned to such term in Section 3.24mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.

Original Credit Agreement” shall mean the Credit Agreement dated as of November 5, 2009, as amended by Amendment No. 1 dated as of January 21, 2010, Amendment No. 2 and Amendment No. 3, among the U.S. Borrowers identified therein, the European Borrowers identified therein, Holdings, the Guarantors, the lenders party thereto and the Administrative Agent.

Other Intercreditor Agreements” shall have the meaning assigned to such term in Section 9.26.

Other Revolving Credit Commitments” shall have the meaning assigned to such term in Section 2.23(a).

Other Revolving Loans” shall have the meaning assigned to such term in Section 2.23(a).

Other Taxes” shall mean any and all present or future stamp, court, recording, intangible, filing or documentary Taxes or any other excise or property or similar Taxes, charges or levies arising from the execution, delivery, performance or enforcement of, or from the registration, receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document.

Other Term Loans” shall have the meaning assigned to such term in Section 2.23(a).

Pactiv Transactions” shall mean the “Transactions” as defined in Amendment No. 3.

Parent Company” shall mean (a) Packaging Finance Limited, a limited liability company organized under the laws of New Zealand and (b) any other entity of which Holdings becomes a direct or indirect Wholly Owned Subsidiary after the 2016 Restatement Date.

Participant Register” has the meaning specified in Section 9.04(g).

Party” means a party to this Agreement. The term “Parties” means any of them.

PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.

 


 

 

PEGHI” shall have the meaning assigned to such term in the introductory statement to this Agreement.

Perfection Certificate” shall mean the Perfection Certificate substantially in the form of Exhibit B to the U.S. Collateral Agreement.

Permitted Acquisition” shall have the meaning assigned to such term in Section 6.04(h). If any acquisition is consummated in accordance with Section 6.04(i), each such acquisition shall be deemed to have been a Permitted Acquisition for all purposes of this Agreement and the other Loan Documents.

Permitted Affiliated Lender Exchange Debt” shall mean debt securities of Holdings, the Borrowers or a Parent Company issued to an Affiliated Lender in exchange for Term Loans of such Affiliated Lender pursuant to Section 9.04(m)(i)(C); provided that (a) such Indebtedness may be unsecured or secured on a junior basis to (but not on a pari passu basis with) the Obligations, (b) such Indebtedness shall not be guaranteed by any Subsidiary or Affiliate of Holdings that is not a Guarantor, (c) the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings or any Subsidiary or any Affiliate of Holdings other than assets constituting Collateral, (d) the final maturity date of such Indebtedness shall be no earlier than the Maturity Date with respect to the Term Loans exchanged for such Indebtedness, (e) the weighted average life to maturity of such Indebtedness shall be no shorter than the weighted average life to maturity of the Term Loans exchanged for such Indebtedness, (f) none of the interest rates, fees or other pricing terms with respect to such Indebtedness provides for greater payments than those with respect to the Term Loans exchanged for such Indebtedness and (g) the other terms of such Indebtedness, taken as a whole, are no more favorable to the holder thereof than the terms applicable to the Term Loans exchanged for such Indebtedness.

Permitted Amendments” shall mean any or all of the following: (i) the extension of the final maturity date and scheduled amortization of the applicable Loans and/or Commitments of the Accepting Lenders, (ii) increases or decreases to the scheduled amortization payments of the applicable Term Loans of the Accepting Lenders; provided that the weighted average life to maturity of the Term Loans of the Accepting Lenders after giving effect to the Permitted Amendments with respect thereto shall be no shorter than the weighted average life to maturity of the Term Loans of the Affected Class held by Lenders that are not Accepting Lenders, (iii) increases or decreases in the Applicable Margins and/or Fees payable with respect to the applicable Loans and/or Commitments of the Accepting Lenders, (iv) the inclusion of additional fees to be payable to the Accepting Lenders, (v) modifications to the prepayment provisions with respect to the Loans of the Accepting Lenders; provided that such Accepting Lenders may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory repayments or prepayments under this Agreement, and (vi) such amendments to this Agreement and the other Loan Documents as shall be appropriate, in the reasonable judgment of the Administrative Agent, to treat the modified Loans and Commitments of the Accepting Lenders as a new tranche of Loans and Commitments for all purposes under this Agreement and the other Loan Documents.

Permitted Debt Exchange” shall have the meaning assigned to such term in Section 2.26(a).

Permitted Debt Exchange Offer” shall have the meaning assigned to such term in Section 2.26(a).

Permitted Debt Exchange Notes” shall have the meaning assigned to such term in Section 2.26(a).

Permitted Investments” shall mean:

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent

 


 

 

such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of issuance thereof;

(b) investments in commercial paper maturing within 270 days from the date of issuance thereof and having, at such date of acquisition, a rating of at least “A-2” (or the then equivalent grade) from S&P or of at least “P-2” (or the then equivalent grade) from Moody’s;

(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $1,500,000,000 and that issues (or the parent of which issues) commercial paper rated at least “P-2” (or the then equivalent grade) by Moody’s or “A‑2” (or the then equivalent grade) by S&P;

(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (c) above;

(e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through (d) above; and

(f) instruments equivalent to those referred to in clauses (a) through (e) above denominated in Euro or any other foreign currency comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction outside the United States.

Permitted Investors” means, at any time, each of (i) Graeme Hart, (ii) the Management Group and (iii) any Person acting in the capacity of an underwriter in connection with a public or private offering of Capital Stock of Holdings or any of its Affiliates.

Permitted Receivables Financing” shall mean one or more transactions pursuant to which any Borrower or any Subsidiary (a) may sell, convey or otherwise transfer Securitization Assets to a Securitization Subsidiary or any other Person or (b) may grant a security interest in any Securitization Assets; provided that (i) recourse to Holdings or any Subsidiary (other than the Securitization Subsidiaries) in connection with such transactions shall be limited to the extent customary for similar transactions in the applicable jurisdictions (it being understood that Special Purpose Financing Undertakings shall be permitted) and (ii) the material terms and conditions and structure of each Permitted Receivables Financing and any waiver, supplement, modification or amendment to such material terms and conditions and structure with respect to such Permitted Receivables Financing) shall have been approved by the Administrative Agent (such approval not to be unreasonably withheld). For the avoidance of doubt, the receivables financing under the Securitization Facility shall constitute a Permitted Receivables Financing.

Permitted Receivables Financing Documents” shall mean all documents and agreements implementing, relating to or otherwise governing a Permitted Receivables Financing.

Permitted Refinancing Indebtedness” shall have the meaning assigned to such term in Section 6.01(bb).

 


 

 

Person” shall mean any natural person, corporation, business trust, joint venture, association, company, limited liability company, partnership, Governmental Authority or other entity.

Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan, but including any “multiple employer” pension plan within the meaning of Sections 4063 and 4064 of ERISA) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 307 of ERISA, and in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” (as defined in Section 3(5) of ERISA) or “contributing sponsor” (as defined in Section 4001(a)(13) of ERISA).

Pledged Collateral” shall mean, as the context may require and with respect to any Security Document, the “Pledged Collateral” as defined in such Security Document.

PricewaterhouseCoopers” shall mean PricewaterhouseCoopers LLP or PricewaterhouseCoopers AG, or any successor thereto.

Prime Rate” shall mean the rate of interest per annum determined from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York City and notified to the Borrowers. The prime rate is a rate set by the Administrative Agent based upon various factors including its costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such rate.

Principal Borrower” shall mean the European Principal Borrower or the U.S. Principal Borrower.

Prior Credit Agreements” shall mean the Original Credit Agreement, the Second Restated Credit Agreement and the Existing Credit Agreement.

Pro Forma Basis” shall mean, with respect to any calculation to be made in connection with a given transaction, that such calculation is made after giving pro forma effect to such transaction and to any other investment, acquisition, disposition, merger, amalgamation, consolidation and discontinued operation (as determined in accordance with GAAP) in each case with respect to an operating unit of a business, any incurrence or repayment of Indebtedness and any other event occurring during the relevant calculation period or, except for purposes of Section 6.126.11(a), after such period as to which pro forma recalculation is appropriate as if such transaction had occurred as of the first day of such period.

Pro Forma Compliance” shall mean, at any date of determination, that Holdings is in compliance with the covenant set forth in Section 6.126.11(a) as of the most recently completed period of four consecutive fiscal quarters ending prior to the relevant transaction for which the financial statements and certificates required by Section 5.04(a) or 5.04(b), as the case may be, and 5.04(c) have been delivered or for which comparable financial statements have been filed with the Securities and Exchange Commission (whether or not such covenant is then required to be complied with), such calculation to be made on a Pro Forma Basis.

Pro Rata Percentage” of any Revolving Credit Lender at any time shall mean the percentage of the Total Revolving Credit Commitment represented by such Lender’s Revolving Credit Commitment. In the event the Revolving Credit Commitments shall have expired or been terminated, the Pro Rata Percentages shall be determined on the basis of the Revolving Credit Commitments most recently in effect, giving effect to any subsequent assignments.

QFC” shall mean the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 


 

 

QFC Credit Support” shall have the meaning assigned to such term in Section 9.27.

Qualified Capital Stock” of any Person shall mean any Equity Interest of such Person that is not Disqualified Stock.

Qualified ECP Guarantor” shall mean, with respect to any Bank Obligations in respect of any Hedge Agreement, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Hedge Agreement or such other Person as constitutes an “Eligible Contract Participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “Eligible Contract Participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Qualified Public Offering” shall mean an underwritten, broadly distributed public offering of common Equity Interests of Holdings or any Parent Company that results in at least $200,000,000 of net cash proceeds (including proceeds invested in Holdings by such Parent Company) to Holdings.

Qualifying Bids” shall have the meaning assigned to such term in Section 2.12(b)(iii).

Qualifying Lender” shall have the meaning assigned to such term in Section 2.12(b)(iv).

Receivables” means accounts receivables, including any indebtedness, obligation or interest constituting an account, contract right, payment intangible, promissory note, chattel paper, instrument, document, investment property, financial asset or general intangible, arising in connection with the sale of goods or the rendering of services, and further includes the obligation to pay any finance charges with respect thereto. Indebtedness and other rights and obligations arising from any one transaction, including indebtedness and other rights and obligations represented by an individual invoice, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other rights and obligations arising from any other transaction; provided, that any indebtedness, rights or obligations referred to in the immediately preceding sentence shall be a “Receivable” regardless of whether the account debtor or the applicable Securitization Subsidiary treats such indebtedness, rights or obligations as a separate payment obligation.

Recipient” shall mean, as applicable, (a) the Administrative Agent, (b) any Lender or (c) any Issuing Bank.

Reference Debt” shall mean (i) the October 2020 4.000% Senior Secured Notes, (ii) the September 2021 4.375% Senior Secured Notes and (iii) any Term Loans, any Senior Secured Notes and/or any Senior Unsecured Notes, in each case, with a scheduled maturity date earlier than July 31, 2029.

Register” shall have the meaning assigned to such term in Section 9.04(d).

Regulation T” shall mean Regulation T of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

 


 

 

Reinvest” shall mean, with respect to any Asset Sale, to apply all or part of the proceeds therefrom (i) to make an investment not prohibited by Section 6.04 in any one or more businesses (provided, however, that if such investment is in the form of the acquisition of Equity Interests of a Person, such acquisition results in such Person becoming a Subsidiary if it is not already a Subsidiary), assets, or property or capital expenditures (including refurbishments), in each case used or useful in a Similar Business; or (ii) to make an investment in any one or more businesses (provided, however, that if such investment is in the form of the acquisition of Equity Interests of a Person, such acquisition results in such Person becoming a Subsidiary), properties or assets that replace the properties and assets that are the subject of such Asset Sale. The term “Reinvestment” shall have the meaning correlative thereto.

Related Fund” shall mean, with respect to any Lender that is a fund or commingled investment vehicle that invests in bank loans, any other fund that invests in bank loans and is managed or advised by the same investment advisor as that which advises such Lender or by an Affiliate of such investment advisor.

Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

Related Persons” shall mean Parent Company and each of Parent Company’s direct and indirect subsidiaries and Affiliates, including Investment Funds and Holdings and its subsidiaries.

Related Security” means, with respect to any Receivable, all of the interest in the inventory and goods (including returned or repossessed inventory or goods), if any, the financing or lease of which gave rise to such Receivable, and all insurance contracts with respect thereto, all other security interests or liens and property subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to the contract related to such Receivable or otherwise, together with all financing statements and security agreements describing any collateral securing such Receivable, all guaranties, letters of credit, letter-of-credit rights, supporting obligations, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such Receivable, whether pursuant to the contract related to such Receivable or otherwise, all service contracts and other contracts and agreements associated with such Receivable, all records related to such Receivable, and all of the applicable Securitization Subsidiary’s right, title and interest in, to and under the applicable documentation.

Release” shall mean any actual or threatened release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within, under, from or upon any building, structure, facility or fixture.

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

Reply Amount” shall have the meaning assigned to such term in Section 2.12(b)(ii).

Reply Discount” shall have the meaning assigned to such term in Section 2.12(b)(ii).

Repurchaser” shall have the meaning assigned to such term in Section 2.12(b).

Required Lenders” shall mean, at any time, Lenders having Loans, L/C Exposure and unused Revolving Credit Commitments and Term Loan Commitments representing more than 50% of the sum of

 


 

 

all Loans outstanding, L/C Exposure and unused Revolving Credit Commitments and Term Loan Commitments at such time; provided that the Revolving Loans, L/C Exposure and unused Revolving Credit Commitments of any Defaulting Lender shall be disregarded in the determination of the Required Lenders at any time.

Required Revolving Credit Lenders” shall mean, at any time, Revolving Credit Lenders having Revolving Loans, L/C Exposure and unused Revolving Credit Commitments representing more than 50% of the sum of all Revolving Loans outstanding, L/C Exposure and unused Revolving Credit Commitments at such time; provided that the Revolving Loans, L/C Exposure and unused Revolving Credit Commitments of any Defaulting Lender shall be disregarded in the determination of the Required Revolving Credit Lenders at any time.

Requirement of Law” shall mean, as to any Person, the certificate of incorporation and bylaws or other organizational or governing documents of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its material property or to which such Person or any of its material property is subject, including laws, ordinances and regulations pertaining to zoning, occupancy and subdivision of real properties; provided that the foregoing shall not apply to any non-binding recommendation of any Governmental Authority.

Responsible Officer” of any Person shall mean any executive officer or Financial Officer of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement.

Restricted Indebtedness” shall mean Indebtedness of Holdings or any Subsidiary, the payment, prepayment, repurchase or defeasance of which is restricted under Section 6.09(b).

Restricted Payment” shall mean any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Holdings or any Subsidiary or any Subordinated Shareholder Loans or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests in Holdings or any Subsidiary or any Subordinated Shareholder Loans.

Restructuring Costs” shall mean in respect of any period, restructuring charges or expenses incurred by Holdings and its Subsidiaries during that period (which, for the avoidance of doubt shall include site closure charges and expenses, systems establishment costs, excess pension costs, severance or relocation costs) provided that each such restructuring charge has been certified by a Financial Officer as being fair and accurate.

Revolving Borrowers” shall have the meaning assigned to such term in the introductory statement to this Agreement.

Revolving Credit Borrowing” shall mean a Borrowing comprised of Revolving Loans.

Revolving Credit Commitment” shall mean, with respect to each Revolving Credit Lender, the commitment of such Lender to make Revolving Loans hereunder (and to acquire participations in Letters of Credit as provided for herein) as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed its Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.

 


 

 

Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the aggregate principal amount at such time of all outstanding Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s L/C Exposure.

Revolving Credit Facility Administrative Agent” shall have the meaning assigned to such term in the introductory statement to this Agreement.

Revolving Credit Lender” shall mean a Lender with a Revolving Credit Commitment or outstanding Revolving Credit Exposure.

Revolving Credit Maturity Date” shall mean May 1, 2029; provided that if on any Springing Maturity Date with respect to any Reference Debt that occurs prior to the then-scheduled Revolving Credit Maturity Date, the outstanding principal amount of such applicable Reference Debt exceeds $250,000,000, the Revolving Credit Maturity Date shall instead be such Springing Maturity Date; provided, however, that in no event will the Revolving Credit Maturity Date be earlier than August 5, 2025.

Revolving Loans” shall mean the revolving loans made by the Lenders to the Revolving Borrowers pursuant to Section 2.01(a). Unless the context shall otherwise require the term “Revolving Loans” shall include Loans made by Incremental Revolving Credit Lenders pursuant to their Incremental Revolving Credit Commitments.

S&P” shall mean S&P Global Ratings, or any successor thereto.

Sale and Lease-Back Transaction” shall have the meaning assigned to such term in Section 6.03.

Sanctioned Target” shall mean any target of Sanctions, including: (a) Persons on any list of targets identified or designated pursuant to any Sanctions, (b) Persons, countries, or territories that are the target of any territorial or country-based Sanctions program, (c) Persons that are a target of or subject of Sanctions due to their ownership or control by any Sanctioned Target, or (d) otherwise a target of or subject of Sanctions, including vessels and aircraft, that are blocked under any Sanctions program.

Sanctions” shall mean any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and restrictions and anti-terrorism laws imposed, administered or enforced by: (a) the United States of America, including those administered by the OFAC, the U.S. Department of State or the U.S. Department of Commerce, or through any existing or future statute or executive order, (b) the United Nations Security Council, (c) the European Union, (d) the United Kingdom or (e) any other governmental authority with jurisdiction over any Borrower or any member of the Borrowing Group.

 

Second Incremental Assumption Agreement” shall mean the Incremental Assumption Agreement dated as of February 7, 2017, relating to this Agreement.

Second Restated Credit Agreement” shall mean the Second Amended and Restated Credit Agreement dated as of August 9, 2011 (as amended, supplemented or otherwise modified prior to the Third Restatement Date), among Holdings, the Borrowers party thereto, the lenders party thereto and Credit Suisse AG, as administrative agent.

Secured Parties” shall mean (a) the Bank Secured Parties, (b) the holders of the Senior Secured Notes, (c) the Indenture Trustee, (d) the successors and assigns of each of the foregoing and (e) each other “Secured Party” as defined in the First Lien Intercreditor Agreement.

Securities Act” shall mean the Securities Act of 1933, as amended.

 


 

 

Security Documents” shall mean the Mortgages, the Collateral Agreements, each Affiliate Subordination Agreement and each of the security agreements, mortgages and other instruments and documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.12.

Securitization Amount” shall mean the aggregate cash amount paid by the lenders or purchasers under any Permitted Receivables Financing in connection with their purchase of, or the making of loans secured by, Securitization Assets or interests therein, as the same may be reduced from time to time by collections with respect to such Securitization Assets or otherwise in accordance with the terms of the Permitted Receivables Financing Documents (but excluding any such collections used to make payments of items included in clause (c) of the definition of Consolidated Interest Expense); provided, however, that if all or any part of such Securitization Amount shall have been reduced by application of any distribution and thereafter such distribution is rescinded or must otherwise be returned for any reason, such Securitization Amount shall be increased by the amount of such distribution, all as though such distribution had not been made.

Securitization Assets” shall mean Receivables (whether now existing or arising in the future) and any assets related thereto including (i) the Related Security with respect to such Receivables, (ii) the collections and proceeds of such Receivables and Related Security, (iii) all lockboxes, lockbox accounts, collection accounts or other deposit accounts into which such collections are deposited and which have been specifically identified and consented to by the Administrative Agent and (iv) all other rights and payments which relate solely to such Receivables.

Securitization Facility” means the Receivables Loan and Security Agreement dated as of November 7, 2012, among, among others, BP Factoring, Nieuw Amsterdam Receivables Corporation as conduit lender, and the other parties from time to time thereto, (a) as amended prior to the 2016 Restatement Date and (b) as further amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original parties or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures; provided that, in the case of this clause (b), the limited nature of the recourse to Holdings or any Subsidiary (other than the Securitization Subsidiary) is not materially increased.

Securitization Subsidiary” shall mean any Subsidiary (a) formed solely for the purpose of engaging, and that engages only, in one or more Permitted Receivables Financings and business activities that are required by or incidental to such Permitted Receivables Financings, (b) which is organized in a manner intended to reduce the likelihood that it would be substantively consolidated with Holdings, the Borrowers or any of the Subsidiaries (other than Securitization Subsidiaries) in the event Holdings, the Borrowers or any such Subsidiary becomes subject to a proceeding under the Title 11 of the United States Code, as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law and (c) subject to the Agreed Security Principles, all of the Equity Interests of which shall be pledged to a Collateral Agent for the ratable benefit of the Bank Secured Parties pursuant to a Collateral Agreement.

Senior Secured First Lien Leverage Ratio” shall mean, on any date, the ratio of (a) the Total Debt that is secured by Liens on property or assets of Holdings or any of the Subsidiaries (other than Liens that are junior to the Liens securing the Bank Obligations pursuant to a Junior Lien Intercreditor Agreement and other than cash or Permitted Investments held in a defeasance or similar trust or arrangement for the benefit of Indebtedness that has been called for redemption or otherwise defeased, satisfied or discharged) minus, without duplication, Unrestricted Cash, in each case on such date, to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such date for which the financial

 


 

 

statements and certificates required by Sections 5.04(a) or 5.04(b), as the case may be, and 5.04(c) have been delivered or for which comparable financial statements have been filed with the Securities and Exchange Commission.

Senior Secured Note Documents” shall mean each Senior Secured Note Indenture and all other instruments, agreements and other documents evidencing or governing any Senior Secured Notes or providing for any Guarantee or other right in respect thereof.

Senior Secured Note Indenture shall mean each of (a) the February 2011 6.875% Senior Secured Note Indenture, (b) the September 2012 5.750% Senior Secured Notes Indenture, (c) the June 2016 Senior Secured Note Indentures and (d) any other indenture, note purchase agreement, credit agreement or loan agreement under which any Senior Secured Notes are issued, in each case as the same may be amended, restated, supplemented, substituted, replaced, refinanced or otherwise modified from time to time in accordance with Section 6.01(l), 6.01(m), 6.01(bb) or 6.01(cc).

Senior Secured Notes” shall mean each of (a) (i) the February 2011 6.875% Senior Secured Notes, (ii) the September 2012 5.750% Senior Secured Notes and (iii) the June 2016 Senior Secured Notes and (b) any other senior secured notes issued pursuant to an indenture or a note purchase agreement or senior secured loans of any Loan Party incurred pursuant to Section 6.01(l), 6.01(m), 6.01(bb) or 6.01(cc) (which notes or loans may have the same lien priority as, or be junior in lien priority to, the Bank Obligations); provided that (x) in the case of clause (b), (A) the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date and (B) the weighted average life to maturity of such Indebtedness is no shorter than the weighted average life to maturity of the Term Loans (or in the case of such Indebtedness incurred pursuant to Section 6.01(bb), the final maturity date and weighted average life to maturity thereof satisfy the requirements set forth in clauses (ii)(A)(I) and (ii)(A)(II), respectively, of the proviso to Section 6.01(bb)), and (y) in each case of clauses (a) and (b), (A) the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings or any Subsidiary or any Affiliate of Holdings other than any asset constituting Collateral, (B) the obligations in respect thereof shall not be guaranteed by any Subsidiary or Affiliate of Holdings that is not a Guarantor and (C) the secured parties thereunder (or an authorized representative thereof) shall have become a party to each applicable (as determined in good faith by Holdings and the Administrative Agent) Intercreditor Agreement.

Senior Unsecured Note Documents” shall mean each Senior Unsecured Note Indenture and all other instruments, agreements and documents evidencing or governing the Senior Unsecured Notes or providing any Guarantee or other right in respect thereof.

Senior Unsecured Note Indenture” shall mean each of (a) the February 2011 8.250% Senior Unsecured Note Indenture, (b) the August 2011 9.875% Senior Unsecured Note Indenture, (c) the February 2012 9.875% Senior Unsecured Note Indenture, (d) the June 2016 7.000% Senior Unsecured Note Indenture and (e) any other indenture or note purchase agreement under which any senior unsecured notes are issued (or in the case of Senior Unsecured Notes in the form of bridge loans, the loan agreement with respect thereto), in each case, as the same may be amended, restated, supplemented, substituted, replaced, refinanced or otherwise modified from time to time in accordance with Sections 6.01(m), 6.01(w) or 6.01(bb) (but excluding the November 2013 5.625% Senior Unsecured Note Indenture).

Senior Unsecured Notes” shall mean each of (a) (i) the February 2011 8.250% Senior Unsecured Notes, (ii) the August 2011 9.875% Senior Unsecured Notes, (iii) the February 2012 9.875% Senior Unsecured Notes and (iv) the June 2016 7.000% Senior Unsecured Notes and (b) any other senior unsecured notes issued pursuant to an indenture or note purchase agreement or senior unsecured bridge loan of any Loan Party issued or incurred pursuant to Section 6.01(m), 6.01(w) or 6.01(bb) (but excluding the November 2013 5.625% Senior Unsecured Notes); provided that (x) in the case of clause (b), (A) the final

 


 

 

maturity date of such Indebtedness is no earlier than the date that is 91 days after the Latest Term Loan Maturity Date and (B) the weighted average life to maturity of such Indebtedness is no shorter than the weighted average life to maturity of the Term Loans and (y) in each case of clauses (a) and (b),the obligations in respect thereof shall not be guaranteed by any Subsidiary or Affiliate of Holdings that is not a Guarantor.

September 2012 5.750% Senior Secured Note Indenture” shall mean the senior secured note Indenture dated as of September 28, 2012, among the U.S. Issuers, the Luxembourg Issuer, the other Loan Parties party thereto and the Indenture Trustee, pursuant to which the September 2012 5.750% Senior Secured Notes were issued.

September 2012 5.750% Senior Secured Notes” shall mean the Senior Secured Notes issued on September 28, 2012, by the Luxembourg Issuer and the U.S. Issuers in an aggregate principal amount of $3,250,000,000, including any Senior Secured Notes into which such notes may be exchanged in accordance with the provisions of the September 2012 5.750% Senior Secured Notes Indenture.

September 2021 4.375% Senior Secured Note Indenture” shall mean the senior secured note indenture dated as of September 24, 2021, among the U.S. Issuers, the other Loan Parties party thereto and Wilmington Trust, National Association, as trustee, pursuant to which the September 2021 4.375% Senior Secured Notes were issued.

September 2021 4.375% Senior Secured Notes” shall mean the senior secured notes issued on September 24, 2021, by the U.S. Issuers in an aggregate principal amount of $500,000,000, including any senior secured notes into which such notes may be exchanged in accordance with the provisions of the September 2021 4.375% Senior Secured Notes Indenture.

Similar Business” shall mean (a) any businesses, services or activities engaged in by Holdings or any Subsidiary on the 2016 Restatement Date and (b) any businesses, services and activities engaged in by Holdings or any Subsidiary that are related, complementary, incidental, ancillary or similar to any of the foregoing or are extensions or developments of any thereof.

SOFR” shall mean the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator), as the administrator of the secured overnight financing rate.

Special Purpose Financing Undertakings” means representations, warranties, covenants, indemnities, guarantees of performance and other agreements and undertakings entered into or provided by Holdings or any of the Subsidiaries that Holdings determines in good faith are customary or otherwise necessary in connection with a Permitted Receivables Financing; provided that any such other agreements and undertakings shall not include the incurrence of any Guarantee in respect of Indebtedness of a Securitization Subsidiary or the collectability of any Receivables.

Specified Asset Sale” shall mean any sale, transfer or other disposition by Holdings or any Subsidiary of any asset, division, product line or line of business made to obtain the approval of any applicable antitrust authority in connection with a Permitted Acquisition. In connection with any Specified Asset Sale, Holdings shall have delivered a certificate of a Financial Officer (i) identifying the asset, division, product line or line of business to be sold, transferred or otherwise disposed of and (ii) containing reasonable details of the reason for such sale, transfer or other disposition, in form and substance reasonably satisfactory to the Administrative Agent. For the avoidance of doubt, a Specified Asset Sale may include any existing asset, division, product line or line of business of Holdings or any Subsidiary.

 


 

 

Specified Cash Management Banks” shall mean Citibank, N.A., JPMorgan Chase Bank, N.A., and their respective Affiliates.

Specified Equity Contribution” shall have the meaning assigned to such term in the definition of the term “Consolidated EBITDA”.

SPV” shall have the meaning assigned to such term in Section 9.04(j).

Specified Incremental Revolving Amount” shall have the meaning assigned to such term in the definition of the term “Incremental Facility Amount”.

Specified Refinancing Amendment” shall mean an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent, Holdings, the other Loan Parties and one or more Specified Refinancing Lenders effecting the incurrence of Specified Refinancing Facilities in accordance with Section 2.25.

Specified Refinancing Facilities” shall have the meaning assigned to such term in Section 2.25(a).

Specified Refinancing Lenders” shall have the meaning assigned to such term in Section 2.25(b).

Specified Refinancing Loans” shall have the meaning assigned to such term in Section 2.25(a).

Specified Refinancing Revolving Facilities” shall have the meaning assigned to such term in Section 2.25(a).

Specified Refinancing Revolving Loans” shall have the meaning assigned to such term in Section 2.25(a).

Specified Refinancing Term Loan Facilities” shall have the meaning assigned to such term in Section 2.25(a).

Specified Refinancing Term Loans” shall have the meaning assigned to such term in Section 2.25(a).

Spot Rate” shall mean, subject to Section 1.05, for a Currency, the rate provided (either by publication or otherwise provided or made available to the Administrative Agent) by Thomson Reuters Corp. (or an equivalent service chosen by the Administrative Agent in its reasonable discretion) as the spot rate for the purchase of such Currency with another currency at a time selected by the Administrative Agent in accordance with the procedures generally used by the Administrative Agent for syndicated credit facilities in which it acts as administrative agent.

Springing Maturity Date” shall mean the 91st day prior to the scheduled maturity date of any applicable Reference Debt.

Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board and any other banking authority, domestic or foreign, to which Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurocurrency Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation D of the Board) and to be subject

 


 

 

to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

Subordinated Indebtedness” shall mean (a) with respect to any Borrower, any Indebtedness of such Borrower which is by its terms subordinated in right of payment to the Loans and (b) with respect to any other Loan Party, any Indebtedness of such Loan Party which is by its terms subordinated in right of payment to its Guarantee of the Obligations.

Subordinated Shareholder Loans” shall mean, collectively, any funds provided to Holdings by any Parent Company or any Permitted Investor or any Affiliate thereof, in exchange for or pursuant to any security, instrument or agreement other than Equity Interests, in each case issued to and held by any of the foregoing Persons, together with any such security, instrument or agreement and any other security or instrument other than Equity Interests issued in payment of any obligation under any Subordinated Shareholder Loans; provided that such Subordinated Shareholder Loans:

(1) do not (including upon the happening of any event) mature or require any amortization, redemption or other repayment of principal or any sinking fund payment prior to the first anniversary of the Latest Term Loan Maturity Date (other than through conversion or exchange of such funding into Equity Interests (other than Disqualified Stock) of Holdings or any funding meeting the requirements of this definition) or the making of any such payment prior to the first anniversary of the Latest Term Loan Maturity Date is restricted by an intercreditor agreement enforceable by, and reasonably acceptable to, the Administrative Agent;

(2) do not (including upon the happening of any event) require, prior to the first anniversary of the Latest Term Loan Maturity Date, payment of cash interest, cash withholding amounts or other cash gross-ups, or any similar cash amounts or the making of any such payment prior to the first anniversary of the Latest Term Loan Maturity Date is restricted by an intercreditor agreement enforceable by, and reasonably acceptable to, the Administrative Agent;

(3) contain no change of control or similar provisions and do not accelerate and have no right to declare a default or event of default or take any enforcement action or otherwise require any cash payment (in each case, prior to the first anniversary of the Latest Term Loan Maturity Date) or the payment of any amount as a result of any such action or provision, or the exercise of any rights or enforcement action (in each case, prior to the first anniversary of the Latest Term Loan Maturity Date) is restricted by an intercreditor agreement enforceable by, and reasonably acceptable to, the Administrative Agent;

(4) do not provide for or require any Lien over any asset of Holdings or any Subsidiary; and

(5) pursuant to its terms or pursuant to an intercreditor agreement enforceable by, and reasonably acceptable to, the Administrative Agent, is fully subordinated and junior in right of payment to the Bank Obligations pursuant to subordination, payment blockage and enforcement limitation terms which are customary in all material respects for similar funding or are no less favorable in any material respect to the Lenders than those contained in the November 2013 Intercreditor Agreement as in effect on the 2016 Restatement Date with respect to the “Senior Creditors” (as defined therein) in relation to “Parentco Debt” (as defined therein) (it being understood, in each case, that such terms of subordination shall permit voluntary prepayment of Subordinated Shareholder Loans to the extent permitted under Section 6.06(a)(ix) or (xii)),

 


 

 

provided that any event or circumstance that results in such subordinated obligation ceasing to qualify as Subordinated Shareholder Loans, including it ceasing to be held by any Parent Company, any Affiliate of any Parent Company or any Permitted Investor or any Affiliate thereof, shall constitute an incurrence of such Indebtedness by Holdings or such Subsidiary not permitted by clause (v) of Section 6.01 (it being understood such Indebtedness may be permitted by another clause).

subsidiary” shall mean, with respect to any Person (herein referred to as the “parent”), any corporation, partnership, limited liability company, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, Controlled or held, or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

Subsidiary” shall mean any subsidiary of Holdings other than an Escrow Subsidiary prior to the Escrow Release Effective Time; provided, however that Unrestricted Subsidiaries shall be deemed not to be Subsidiaries for all purposes of this Agreement and the other Loan Documents.

Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(e), and each other Subsidiary that executes a Guarantor Joinder, in each case until such time as such Person ceases to be a Guarantor as permitted by this Agreement.

Subsidiary Redesignation” shall have the meaning assigned to such term in the definition of “Unrestricted Subsidiary”.

Supported QFC” shall have the meaning assigned to such term in Section 9.27.

Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or combination of agreements pursuant to which Holdings or any Subsidiary is or may become obligated to make (a) any payment in connection with a purchase by any third party from a Person other than Holdings or any Subsidiary of any Equity Interest or Restricted Indebtedness or (b) any payment (other than on account of a permitted purchase by it of any Equity Interest or Restricted Indebtedness) the amount of which is determined by reference to the price or value at any time of any Equity Interest or Restricted Indebtedness; provided that no phantom stock or similar plan providing for payments only to current or former directors, officers or employees of Holdings or any Subsidiary (or to their heirs or estates) shall be deemed to be a Synthetic Purchase Agreement.