Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) dated as of December 6, 2021, is among WRKCO INC., a Delaware corporation (“Parent”), WESTROCK COMPANY, a Delaware corporation (“WestRock”), WRK LUXEMBOURG S.À R.L., a private limited liability company (société à responsabilité limitée) incorporated under the laws of Luxembourg (“WRK Luxembourg”), WRK INTERNATIONAL HOLDINGS S.À R.L., a private limited liability company (société à responsabilité limitée) incorporated under the laws of Luxembourg (“WRK International”), MULTI PACKAGING SOLUTIONS LIMITED, a limited company incorporated under the laws of England and Wales (“Multi Packaging Solutions”), WESTROCK PACKAGING SYSTEMS GERMANY GMBH, a private limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany (“WestRock Packaging Systems” and, together with WRK Luxembourg, WRK International, and Multi Packaging Solutions, the “Borrowers”), each of the other Guarantors (as defined in the Credit Agreement referenced below) which is a signatory hereto, and Coöperatieve RABOBANK u.a., nEW yORK bRANCH, as administrative agent for itself, the Lenders and certain other parties (in its capacity as administrative agent, together with its successors in such capacity, “Administrative Agent”).
RECITALS:
WHEREAS, Parent, Westrock, Borrowers, the financial institutions party thereto as “Lenders” (the “Lenders”), and Administrative Agent are parties to that certain Credit Agreement dated as of February 26, 2021 (as may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement), pursuant to which the Lenders have made certain financial accommodations available to Borrowers; and
WHEREAS, an Early Opt-in Election has occurred in the case of Loans denominated in Sterling; and
WHEREAS, in connection with the implementation of a Benchmark Replacement for Loans denominated in Sterling, Administrative Agent and Borrowers are entering into this Amendment to evidence the Benchmark Replacement Conforming Changes being made by Administrative Agent in accordance with Section 2.13 of the Credit Agreement; and
WHEREAS, in accordance with Section 2.13 of the Credit Agreement, this Amendment implementing such Benchmark Replacement Conforming Changes will become effective on the Amendment Effective Date (as defined below) without any further action or consent of any other party to Credit Agreement;
NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows effective as of the Amendment Effective Date (as defined below):
(a) The execution, delivery and performance by each Obligor of this Amendment (i) are all within each Obligor’s powers (corporate or otherwise), (ii) have been duly authorized by all necessary action (corporate or otherwise), (iii) do not require any consent or authorization of, or filing with, any Person (including any Governmental Authority), except for such as have been obtained or made and are in full force and effect, (iv) will not violate (A) such Obligor’s Organizational Documents or (B) any Requirements of Law, and (v) will not cause a breach or default under any of their respective Material Contracts, except, with respect to clause (iv)(B) or clause (v), to the extent that such violation, breach or default would not reasonably be likely to have a Material Adverse Effect.
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[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused their respective duly authorized officers or representatives to execute and deliver this Amendment as of the day and year first above written.
First Amendment to Credit Agreement
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BORROWERS: | WRK LUXEMBOURG S.À R.L., a limited liability company incorporated under the laws of Luxembourg By: /s/ Lawrence S. Estrop By: /s/ Cornelia Mettlen |
| WRK INTERNATIONAL HOLDINGS S.À R.L., a limited liability company incorporated under the laws of Luxembourg By: /s/ Lawrence S. Estrop By: /s/ Cornelia Mettlen |
| MULTI PACKAGING SOLUTIONS LIMITED, a limited company incorporated under the laws of England and Wales By: /s/ Steven B. Nickerson |
First Amendment to Credit Agreement
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| WESTROCK PACKAGING SYSTEMS GERMANY GMBH, a private limited liability company incorporated under the laws of Germany By: /s/ Dieter Liebich
By: /s/ Tobias Gabriel |
First Amendment to Credit Agreement
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GUARANTORS: | WRKCO INC., a Delaware corporation By: /s/ Timothy W. Murphy |
| WESTROCK COMPANY, a Delaware corporation By: /s/ Timothy W. Murphy |
| WESTROCK RKT, LLC, a Georgia limited liability company By: /s/ Timothy W. Murphy |
| WESTROCK MWV, LLC, a Delaware limited liability company By: /s/ Timothy W. Murphy |
First Amendment to Credit Agreement
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ADMINISTRATIVE AGENT: | COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Administrative Agent By: /s/ Christopher Hartofilis By: /s/ Jan Hendrik de Graaff |
First Amendment to Credit Agreement
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Exhibit A
CREDIT AGREEMENT
Dated as of February 26, 2021
by and among
WRKCO INC.,
as Parent,
WESTROCK COMPANY,
WRK LUXEMBOURG S.À R.L.,
WRK INTERNATIONAL HOLDINGS S.À R.L.,
MULTI PACKAGING SOLUTIONS LIMITED,
WESTROCK PACKAGING SYSTEMS GERMANY GMBH and
CERTAIN ADDITIONAL SUBSIDIARIES OF WESTROCK COMPANY
FROM TIME TO TIME PARTY HERETO,
as Borrowers,
THE LENDERS PARTY HERETO,
and
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
as Administrative Agent
______________________________________________________________________
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH,
as Joint Lead Arranger and Sole Bookrunner
SUMITOMO MITSUI BANKING CORPORATION,
TD BANK, N.A.,
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY,
THE BANK OF NOVA SCOTIA,
and
ING BANK N.V., DUBLIN BRANCH,
as Joint Lead Arrangers and Co-Syndication Agents
TABLE OF CONTENTS
Page
1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Classification of Loans and Borrowings 3536
1.3 Interpretation 3536
1.4 Rounding 36
1.5 Currency Equivalents 3637
1.6 Accounting Terms; GAAP 3637
1.7 Luxembourg Terms 3738
1.8 Divisions 3738
2. THE CREDITS 38
2.1 The Commitments 38
2.2 Loans and Borrowings. 38
2.3 Requests for Borrowings 39
2.4 Designation of Additional Borrowers 3940
2.5 [Reserved]. 40
2.6 Funding of Borrowings. 40
2.7 Interest Elections. 41
2.8 Termination and Reduction of the Commitments 4243
2.9 Repayment of Loans; Evidence of Debt. 43
2.10 Prepayment of Loans. 4344
2.11 Fees. 4445
2.12 Interest. 45
2.13 Alternate Rate of Interest; Illegality; Benchmark Replacement Setting 4546
2.14 Increased Costs. 5051
2.15 Compensation for Losses 5152
2.16 Taxes. 5152
2.17 Payments Generally; Pro Rata Treatment; Sharing of Set-offs. 5657
2.18 Mitigation Obligations; Replacement of Lenders. 5859
2.19 Increases of the Commitments; Adjustments to Commitments. 5960
2.20 [Reserved]. 6162
2.21 Defaulting Lenders. 6162
3. REPRESENTATIONS AND WARRANTIES 6263
3.1 Corporate Existence; Compliance with Law 6263
3.2 Corporate Power; Authorization 6364
3.3 Enforceable Obligations 6364
3.4 No Legal Bar 6364
3.5 No Material Litigation 6364
3.6 Investment Company Act 6364
3.7 Margin Regulations 6364
3.8 Compliance with Environmental Laws 6364
3.9 [Reserved] 6465
3.10 Financial Statements, Fiscal Year and Fiscal Quarters 6465
3.11 ERISA. 6566
3.12 Accuracy and Completeness of Information 6566
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TABLE OF CONTENTS
(continued)
Page
3.13 Sanctions/Anti-Corruption Representations. 6567
3.14 Use of Proceeds 6667
3.15 Representations as to Foreign Obligors. 6667
4. CONDITIONS PRECEDENT 6768
4.1 Effective Date 6768
4.2 Each Credit Event 6970
5. AFFIRMATIVE COVENANTS 6970
5.1 Corporate Existence, Etc 6970
5.2 Compliance with Laws, Etc 7071
5.3 Payment of Taxes and Claims 7071
5.4 Keeping of Books 7071
5.5 Visitation, Inspection, Etc 7071
5.6 Insurance; Maintenance of Properties and Licenses 7071
5.7 Financial Reports; Other Notices 7172
5.8 Notices Under Certain Other Indebtedness. 7374
5.9 Notice of Litigation 7374
5.10 Use of Proceeds 7374
6. NEGATIVE COVENANTS 7374
6.1 Financial Requirements 7374
6.2 Liens 7374
6.3 Subsidiary Indebtedness 7677
6.4 Merger and Sale of Assets 7778
6.5 Use of Proceeds 7880
7. EVENTS OF DEFAULT. 7980
7.1 Event of Default. 7980
7.2 Acceleration; Remedies 8283
7.3 Application of Payment 8283
8. ADMINISTRATIVE AGENT 8384
8.1 Authorization and Action. 8384
8.2 Administrative Agent and its Affiliates. 8384
8.3 Duties 8485
8.4 Administrative Agent’s Reliance, Etc. 8586
8.5 Sub-Agents 8788
8.6 Resignation. 8788
8.7 Lender Credit Decision 8889
8.8 Other Agent Titles 8889
8.9 Agent May File Proofs of Claim; Bankruptcy Events 8889
9. MISCELLANEOUS 8990
9.1 Notices. 8990
9.2 Waivers; Amendments. 9192
9.3 Expenses; Indemnity; Damage Waiver. 9293
9.4 Successors and Assigns. 9495
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TABLE OF CONTENTS
(continued)
Page
9.5 Survival. 9899
9.6 Counterparts; Integration; Effectiveness 9899
9.7 Severability 99100
9.8 Right of Set-off 99100
9.9 Governing Law; Jurisdiction; Etc. 99100
9.10 WAIVER OF JURY TRIAL 100101
9.11 Treatment of Certain Information; Confidentiality. 101102
9.12 Interest Rate Limitation 102103
9.13 USA Patriot Act 102103
9.14 Administrative Borrower 103
9.15 Joint and Several Obligations 103104
9.16 Press Release and Related Matters 106107
9.17 No Duty 106107
9.18 No Fiduciary Relationship 106107
9.19 Construction; Independence of Covenants. 106107
9.20 Payments Set Aside 106107
9.21 Benefits of Agreement 107108
9.22 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 107108
9.23 Judgment Currency 107108
9.24 Acknowledgement Regarding Any Supported QFCs 108109
LIST OF EXHIBITS
EXHIBITS: | ||
Exhibit A | - | Assignment and Assumption |
Exhibit 2.3 | - | Borrowing Request |
Exhibit 2.7 | - | Interest Election Request |
Exhibit 2.16-1 | - | U.S. Tax Compliance Certificate |
Exhibit 2.16-2 | - | U.S. Tax Compliance Certificate |
Exhibit 2.16-3 | - | U.S. Tax Compliance Certificate |
Exhibit 2.16-4 | - | U.S. Tax Compliance Certificate |
Exhibit 2.19 | - | Notice of Incremental Commitment |
Exhibit 5.7 | - | Compliance Certificate |
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This CREDIT AGREEMENT (this “Agreement”) dated as of February 26, 2021, is by and among WRKCO INC., a Delaware corporation (“Parent”), WESTROCK COMPANY, a Delaware corporation (“WestRock”), WRK LUXEMBOURG S.À R.L., a private limited liability company (société à responsabilité limitée) incorporated under the laws of Luxembourg (“WRK Luxembourg”), WRK INTERNATIONAL HOLDINGS S.À R.L., a private limited liability company (société à responsabilité limitée) incorporated under the laws of Luxembourg (“WRK International”), MULTI PACKAGING SOLUTIONS LIMITED, a limited company incorporated under the laws of England and Wales (“Multi Packaging Solutions”), WESTROCK PACKAGING SYSTEMS GERMANY GMBH, a private limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany (“WestRock Packaging Systems” and, together with WRK Luxembourg, WRK International, Multi Packaging Solutions and each Subsidiary of WestRock from time to time party hereto designated by WestRock (as defined in Section 1.1) as an additional Borrower pursuant to Section 2.4, the “Borrowers”), the LENDERS and COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Administrative Agent.
WITNESSETH:
WHEREAS, Borrowers have requested that the Lenders make available for the purposes specified in this Agreement a revolving credit facility; and
WHEREAS, the Lenders are willing to make available to Borrowers such revolving credit facility upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree as follows:
“Acquisition” means any acquisition, whether by stock purchase, asset purchase, merger, amalgamation, consolidation or otherwise, of a Person or a business line of a Person.
“Activities” has the meaning assigned to such term in Section 8.2(b).
“Additional Lender” has the meaning set forth in Section 2.19.
“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period and currency, an interest rate per annum equal to (a) in the case of any Eurodollar Borrowing denominated in Dollars, (i) the LIBO Rate for such Interest Period and currency, multiplied by (ii) the Statutory Reserve Rate and (b) in the case of any Eurodollar Borrowing denominated in an Offshore CurrencyEuros, the LIBO Rate for such Interest Period and such currency.
“Administrative Agent” means Rabobank, in its capacity as administrative agent for the Lenders under the Loan Documents, and any successor Administrative Agent appointed pursuant to Section 8.
“Administrative Borrower” has the meaning assigned to such term in Section 9.14.
“Administrative Questionnaire” means an administrative questionnaire delivered by each Lender in a form supplied by Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of the Board of Directors of such Person, or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“Agent Parties” means, collectively, Administrative Agent and its Related Parties.
“Agent’s Group” has the meaning assigned to such term in Section 8.2(b).
“Agreed Currency” means Dollars and each Offshore Currency.
“Agreement Currency” has the meaning assigned to such term in Section 9.23.
“Alternative Currency Equivalent” means, for any amount of any Offshore Currency, at the time of determination thereof, (a) if such amount is expressed in such Offshore Currency, such amount and (b) if such amount is expressed in Dollars, the equivalent of such amount in such Offshore Currency determined by using the rate of exchange for the purchase of such Offshore Currency with Dollars last provided (either by publication or otherwise provided to Administrative Agent) by the applicable Reuters source on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases to be available or ceases to provide a rate of exchange for the purchase of such Offshore Currency with Dollars, as provided by such other publicly available information service which provides that rate of exchange at such time in place of Reuters chosen by Administrative Agent in its sole discretion (or if such service ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by Administrative Agent using any method of determination it deems appropriate in its sole discretion).
“Anti-Corruption Laws” means the laws, rules, and regulations of the jurisdictions applicable to any Obligor or its Subsidiaries from time to time concerning or relating to bribery or corruption, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the United Kingdom Bribery Act 2010.
“Anti-Terrorism Laws” means any laws, regulations, or orders of any Governmental Authority of the United States, the United Nations, United Kingdom, Luxembourg, Germany, European Union or the Netherlands relating to terrorism financing or money laundering, including, but not limited to, the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.), the Trading With the Enemy Act (50 U.S.C. § 5 et seq.), the International Security Development and Cooperation Act (22 U.S.C. § 2349aa-9 et seq.), the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the “USA Patriot Act”), and any rules or regulations promulgated pursuant to or under the authority of any of the foregoing.
“Applicable Foreign Obligor Documents” has the meaning assigned to such term in Section 3.15.
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“Applicable Margin” means, for any day, with respect to any Base Rate Loan, SONIA Loan or Eurodollar Loan, or with respect to the commitment fees payable hereunder, as the case may be, the applicable margin per annum set forth below under the heading “Base Rate Spread”, “SONIA Spread”, “Eurodollar Spread” or “Commitment Fee Rate”, respectively, which corresponds to the ratings level (the “Ratings Level”) determined by reference to the Ratings on such date, subject to the terms below:
Level | Rating | Eurodollar Spread | SONIA Spread | Base Rate Spread | Commitment |
1 | BBB+ / Baa1 | 0.875% | 0.875% | 0.00% | 0.100% |
2 | BBB / Baa2 | 1.000% | 1.000% | 0.00% | 0.125% |
3 | BBB- / Baa3 | 1.125% | 1.125% | 0.125% | 0.175% |
4 | BB+ / Ba1 | 1.375% | 1.375% | 0.375% | 0.225% |
5 | BB / Ba2 | 1.625% | 1.625% | 0.625% | 0.275% |
For purposes of the foregoing, (a) (i) if the applicable Ratings established by Moody’s and S&P are different but correspond to consecutive pricing levels, then the Ratings Level will be based on the higher applicable Rating (e.g., if Moody’s applicable Rating corresponds to Level 1 and S&P’s applicable Rating corresponds to Level 2, then the Ratings Level will be Level 1), and (ii) if the applicable Ratings established by Moody’s and S&P are more than one pricing level apart, then the Ratings Level will be based on the rating which is one level higher than the lower rating (e.g., if Moody’s and S&P’s applicable Ratings correspond to Levels 1 and 4, respectively, then the Ratings Level will be Level 3), (b) in the event that either S&P or Moody’s (but not both) shall no longer issue a Rating, the Ratings Level shall be determined by the remaining Rating, and (c) in the event that neither S&P nor Moody’s issues a Rating, unless and until the date, if any, that Borrowers and the Required Lenders agree on a different arrangement, the existing Ratings Level shall continue in effect for the 60-day period immediately following such event, and subsequent to such period the Ratings Level shall be Level 5. Each change in the Applicable Margin resulting from a publicly announced change in the Ratings Level shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
“Approved Amendment” means any amendment, modification, waiver, supplement, restatement, refinancing or other replacement of the Existing Credit Agreement, including any waiver of any provision thereof or consent to any departure therefrom by a party thereto, so long as such amendment, modification, waiver, supplement, restatement, refinancing or other replacement shall have been consented to by lenders under the Existing Credit Agreement that constitute (or whose Affiliates constitute) the Required Lenders hereunder.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
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“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of each party whose consent is required by Section 9.4), and accepted by Administrative Agent, substantially in the form of Exhibit A or any other form approved by Administrative Agent.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark for the applicable Agreed Currency, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement 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, 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 paragraph (f) of Section 2.13.
“Avoidance Provisions” has the meaning assigned to such term in Section 9.15(c).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the relevant implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded, or replaced from time to time.
“Base Rate” means, at any time, the greatest of (a) the Prime Rate at such time, (b) 1/2 of 1% in excess of the Federal Funds Effective Rate at such time, and (c) the Adjusted LIBO Rate for a Eurodollar Loan in Dollars with a one-month Interest Period commencing at such time plus 1.0%; provided that in no event shall the Base Rate as so determined be less than 1.0%. For the purposes of this definition, the Adjusted LIBO Rate shall be determined using the Adjusted LIBO Rate for Dollars as otherwise determined by Administrative Agent in accordance with the definition of “Adjusted LIBO Rate”, except that (i) if a given day is a Business Day, such determination shall be made on such day (rather than two Business Days prior to the commencement of an Interest Period) or (ii) if a given day is not a Business Day, the Adjusted LIBO Rate for such day shall be the rate determined by Administrative Agent pursuant to the preceding clause (i) for the most recent Business Day preceding such day. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate, or such Adjusted LIBO Rate shall be effective as of the opening of business on the day of such change in the Prime Rate, the Federal Funds Effective Rate, or such Adjusted LIBO Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.13(a) or Section 2.13(b) hereof (for the avoidance of doubt, in the case of Section 2.13(b), only until any amendment has become effective pursuant to Section 2.13(b)), then the Base Rate shall be the greater of clauses (a) and (b)
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above and shall be determined without reference to clause (c) above. Base Rate, 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 Base Rate.
“Benchmark” means, initially, the LIBO Rate(a) with respect to any Obligations, interest, fees, commissions or other amounts denominated in Dollars or Euros or calculated with respect thereto, the LIBO Rate for such applicable currency, and (b) with respect to any Obligations, interest, fees, commissions or other amounts denominated in Sterling or calculated with respect thereto, Daily Simple SONIA; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the LIBO Rate for the applicable Agreed Currency or the then-current Benchmark for the applicable Agreed Currency, then “Benchmark” means the applicable Benchmark Replacement for such applicable Agreed Currency to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to paragraph (b) or paragraph (c) of Section 2.13.
“Benchmark Cessation Changes” means any replacement of a Benchmark hereunder and all documents, instruments, and amendments executed, delivered or otherwise implemented or effected (automatically or otherwise) after the date hereof in accordance with or in furtherance of Section 2.13 (including any Benchmark Replacement Conforming Changes).
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in an Agreed Currency other than Dollars, “Benchmark Replacement” shall mean the alternative set forth in (3) below:
(1) the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(2) the sum of (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment; or
(3) the sum of (a) the alternate benchmark rate that has been selected by Administrative Agent and Borrowers as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by Administrative Agent in its reasonable discretion; provided further that, solely with respect to a Loan denominated in Dollars, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
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If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark for a currency with an Unadjusted Benchmark Replacement for such currency and, as applicable, for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by Administrative Agent:
(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period or Borrowing that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; and
(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period or Borrowing that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent and Borrowers for the applicable Corresponding Tenor 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 on the applicable Benchmark Replacement Date and/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 Agreed Currency at such time;
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,”, the definition of “Interest Payment Date”, the definition of “SONIA” (and related definitions), timing and frequency of determining rates and making payments of interest (including, if there are multiple Available Tenors (or any one of them) and the related setting of a Benchmark Replacement Adjustment in respect thereof), timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that
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Administrative Agent (in consultation with Borrowers) decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Administrative Agent (in consultation with Borrowers) decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark for any applicable Agreed Currency, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) 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);
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein;
(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and Borrowers pursuant to Section 2.13(c); or
(4) in the case of an Early Opt-in Election, the sixth Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as Administrative Agent have not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark for any Agreed Currency, the occurrence of one or more of the following events with respect to such then-current Benchmark for such Agreed Currency:
(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);
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(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 NYFRB or other applicable central bank, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case 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 no longernot, or as of a specified future date will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark for any currency, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clause (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement for such currency has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13 and (y) ending at the time that a Benchmark Replacement for the applicable currency has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Board” means the Board of Governors of the Federal Reserve System of the United States.
“Board of Directors” means, with respect to any Person, (a) in the case of any corporation, the board of directors of such Person, (b) in the case of any limited liability company, the board of managers of such Person, (c) in the case of any partnership, the Board of Directors of the general partner of such Person, and (d) in any other case, the functional equivalent of the foregoing.
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“Borrower” means the Lux Borrowers, the German Borrowers and the U.K. Borrowers, each individually (collectively, the “Borrowers”).
“Borrowing” means Loans of the same Type and currency made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
“Borrowing Minimum” means (a) in the case of a Eurodollar Borrowing denominated in Dollars, $2,000,000, (b) in the case of a Eurodollar Borrowing denominated in Euros, €2,000,000, (c) in the case of a EurodollarSONIA Borrowing denominated in Sterling, £2,000,000, and (d) in the case of a Base Rate Borrowing, $2,000,000.
“Borrowing Multiple” means (a) in the case of a Eurodollar Borrowing denominated in Dollars, $1,000,000, (b) in the case of a Eurodollar Borrowing denominated in Euros, €1,000,000, (c) in the case of a EurodollarSONIA Borrowing denominated in Sterling, £1,000,000, and (d) in the case of a Base Rate Borrowing, $1,000,000
“Borrowing Request” means a request by a Borrower for a Borrowing in accordance with Section 2.3.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, if a determination of a Business Day shall relate to (a) a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are closed for dealings in Dollar deposits in the London interbank market, (b) an Offshore Currency Loan denominated in Euros, or any other dealings in Euros to be carried out pursuant to this Agreement, the term “Business Day” shall also exclude any day that is not a TARGET Day, or (c) an Offshore Currency Loan denominated in Sterling, or any other dealings in Sterling to be carried out pursuant to this Agreement, the term “Business Day” shall also exclude any day on which commercial banks in London, England or Luxembourg are authorized or required by law to remain closed.
“Calculation Date” means the date of the applicable Specified Transaction which gives rise to the requirement to calculate the financial covenants set forth in Sections 6.1(a) and (b) on a Pro Forma Basis.
“Calculation Period” means, in respect of any Calculation Date, the period of four Fiscal Quarters ended as of the last day of the most recent Fiscal Quarter preceding such Calculation Date for which Administrative Agent shall have received the financial information required by subsections (a) through (c) of Section 5.7 for the Fiscal Quarter or Fiscal Year, as applicable, then ended.
“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
“Change in Control” means the occurrence of any of the following events: (a) as applied to WestRock, that any Person or “Group” (as defined in Section 13(d)(3) of the Exchange Act, but excluding (i) any employee benefit or stock ownership plans of WestRock or any of its Subsidiaries, and (ii) members of the Board of Directors and executive officers of WestRock as of the Effective Date, members of the immediate families of such members and executive officers, and family trusts and partnerships established by or for the benefit of any of the foregoing
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individuals) shall have acquired more than fifty percent (50%) of the combined voting power of all classes of common stock of WestRock or (b) WestRock shall cease to own and control, of record and beneficially, directly or indirectly, 100% of each class of outstanding Equity Interests of each Borrower.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation, or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation, or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rule, guideline, or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines, or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States 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” has the meaning assigned to such term in Section 9.12.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means at any time, with respect to each Lender, the commitment, if any, of such Lender to make Loans, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure at such time hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.8 or 2.18(b), or (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.4. The initial amount of each Lender’s Commitment is set forth below its name on its signature page hereto, or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. The initial aggregate amount of the Lenders’ Commitments is €600,000,000.
“Communication” has the meaning assigned to such term in Section 9.1(a).
“Compliance Certificate” has the meaning assigned to such term in Section 5.7.
“Computation Date” means (a) in connection with the making of any new Loan, the Business Day which is the date such credit is extended; (b) in connection with any extension or conversion or continuation of an existing Loan, the Business Day which is the date such Loan is extended, converted or continued; (c) the date of any reduction of the Commitments pursuant to the terms of Section 2.8; and (d) the last day of each month.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Companies” means, collectively, WestRock, the Parent, Borrowers, all of the other Restricted Subsidiaries, each Permitted Securitization Subsidiary and, to the extent required to be consolidated with WestRock under GAAP, any Joint Venture.
“Consolidated Funded Debt” means the Funded Debt of the Consolidated Companies on a consolidated basis.
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“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) EBITDA for the period of the four prior Fiscal Quarters ending on such date to (b) Consolidated Interest Expense paid or payable in cash during such period (together with any sale discounts given in connection with sales of accounts receivable and/or inventory by the Consolidated Companies during such period).
“Consolidated Interest Expense” means, for any period, all Interest Expense of the Consolidated Companies net of interest income and income from corporate-owned life insurance programs (excluding (a) deferred financing costs included in amortization, (b) interest expense in respect of insurance premiums, (c) interest expense in respect of Indebtedness that is non-recourse to WestRock and its Restricted Subsidiaries under the laws of the applicable jurisdiction, except for Standard Securitization Undertakings, (d) interest expense in respect of the write-up or write-down of the fair market value of Indebtedness and (e) any interest expense attributable to the KapStone Paper Chip Mill Contracts) of the Consolidated Companies determined on a consolidated basis in accordance with GAAP.
“Contractual Obligation” of any Person means any provision of any security issued by such Person or of any agreement, instrument or undertaking under which such Person is obligated or by which it or any of the property owned by it is bound.
“Contributing Borrower” has the meaning assigned to such term in Section 9.15(f).
“Copyright Licenses” means any written agreement, naming any Obligor as licensor, granting any right under any Copyright.
“Copyrights” means (a) all copyrights, now existing or hereafter created or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Copyright Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and (b) all renewals thereof.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor. For the avoidance of doubt, if the then-current Benchmark is a term rate, there are more than one Available Tenors of such Benchmark available as of the applicable Benchmark Replacement Date and the applicable Unadjusted Benchmark Replacement that will replace such Benchmark in accordance with Section 2.13 will not be a term rate, the Corresponding Tenor for such Available Tenor for purposes of this definition of “Benchmark Replacement Adjustment” shall be deemed to be the tenor for the then current term rate Benchmark that is approximately the same length (disregarding business day adjustments) to each payment period identified in the Benchmark Replacement Conforming Changes for payment of interest for the Unadjusted Benchmark Replacement.
“Credit Extension” means the making of a Loan.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that, if Administrative Agent decides that any such convention is not administratively feasible for Administrative Agent, then Administrative Agent may establish another convention in its reasonable discretion.
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“Daily Simple SONIA” means, in respect of Loans denominated in Sterling, for any day (a “SONIA Interest Day”), an interest rate per annum equal to the greater of (a) the sum of (x) SONIA for the day (such day “i”) that is five Business Days prior to (i) if such SONIA Interest Day is a Business Day, such SONIA Interest Day or (ii) if such SONIA Interest Day is not a Business Day, the Business Day immediately preceding such SONIA Interest Day, plus (y) 0.0326% for a one month Interest Payment Date or 0.1193% for a three month Interest Payment Date, and (b) 0.00%. If by 5:00 pm (London time) on the second Business Day immediately following any day “i”, SONIA in respect of such day “i” has not been published on the SONIA Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SONIA has not occurred, then SONIA for such day “i” will be SONIA as published in respect of the first preceding Business Day for which SONIA was published on the SONIA Administrator’s Website; provided that any SONIA rate determined pursuant to this sentence shall be utilized for purposes of calculation of Daily Simple SONIA for no more than three consecutive SONIA Interest Days, and thereafter, the rate shall be determined in accordance with Section 2.13(a). Any change in Daily Simple SONIA due to a change in SONIA shall be effective from and including the effective date of such change in SONIA without notice to the Borrowers.
“Debt to Capitalization Ratio” means, as of the last day of any Fiscal Quarter, the ratio (expressed as a percentage) of (a) (i) Total Funded Debt minus (ii) the aggregate amount of cash on the consolidated balance sheet of WestRock and its Restricted Subsidiaries attributable to the net proceeds of an issuance or incurrence of Indebtedness that constitutes Refinancing Indebtedness in respect of existing Indebtedness maturing within 180 days of such issuance or incurrence, to (b) the sum of (i) (x) Total Funded Debt minus (y) the aggregate amount of cash on the consolidated balance sheet of WestRock and its Restricted Subsidiaries attributable to the net proceeds of an issuance or incurrence of Indebtedness that constitutes Refinancing Indebtedness in respect of existing Indebtedness maturing within 180 days of such issuance or incurrence plus (ii) the Equity Capitalization plus (iii) deferred Taxes of WestRock and its consolidated Subsidiaries, each as of the last day of such Fiscal Quarter.
“Debtor Relief Laws” means 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 or any other applicable country or jurisdiction (including the United Kingdom Insolvency Act of 1986), as the same may now or hereafter be amended, and including any successor bankruptcy, insolvency, receivership or similar debtor relief law now or hereafter in effect.
“Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Default Rate” means a per annum interest rate equal to (a) in the case of any Loans, 2% plus the rate otherwise applicable to such Loan (including the Applicable Margin) or (b) in the case of any other Obligation, 2% plus the rate applicable to Base Rate Loans (including the Applicable Margin) as provided in Section 2.12(a).
“Defaulting Lender” means, subject to Section 2.21(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent
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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 Administrative Agent or any other Lender any other amount required to be paid by it hereunder within 2 Business Days of the date when due, (b) has notified any Borrower, Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such 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) has failed, within 3 Business Days after written request by Administrative Agent or Borrowers, to confirm in writing to Administrative Agent and Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Laws, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of (x) the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority or (y) in the case of a solvent Person, the precautionary appointment of a receiver, custodian, conservator, trustee, administrator or similar Person by a Governmental Authority under or based on the applicable law of the country where such Person is subject to home jurisdiction supervision if any applicable law requires that such appointment not be publicly disclosed, in any such case so long as such ownership interest or appointment (as applicable) does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) of this definition shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to Borrowers and each Lender.
“Direction” has the meaning assigned to such term in Section 2.16(i)(ii).
“Dollars” or “$” refers to lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized and existing under the laws of the United States, any state thereof or the District of Columbia.
“Early Opt-in Election” means:
(a) in the case of Loans denominated in Dollars, the occurrence of:
(1) a notification by Administrative Agent to (or the request by Borrowers to Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or
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any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by Administrative Agent and Borrowers to trigger a fallback from LIBO Rate and the provision by Administrative Agent of written notice of such election to the Lenders; and
(b) in the case of Loans denominated in an Agreed Currency (other than Dollars), the occurrence of:
(1) a notification by Administrative Agent to (or the request by Borrowers to Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding syndicated credit facilities which include such Agreed Currency at such time in the U.S. syndicated loan market contain or are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the LIBO Rate or Daily Simple SONIA with respect to such Agreed Currency, and
(2) the joint election by Administrative Agent and Borrowers to declare that an Early Opt-in Election has occurred and the provision, as applicable, by Administrative Agent of written notice of such election to Borrowers and the Lenders.
“EBITDA” means, for any fiscal period, “EBITDA” as such term is defined in and as calculated pursuant to the terms of the Existing Credit Agreement.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which the conditions set forth in Section 4.1 are satisfied (or waived in accordance with Section 9.2).
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 9.4(b)(iii), 9.4(b)(vi), and 9.4(b)(vii) (subject to such consents, if any, as may be required under Section 9.4(b)(iii)).
“Environment” means indoor air, ambient air, surface water, groundwater, drinking water, land surface, subsurface strata, and natural resources such as wetlands, flora and fauna.
“Environmental Laws” means any and all applicable foreign, federal, state, provincial, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
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requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the Environment, as now or is at any relevant time in effect during the term of this Agreement.
“Equity Capitalization” means as of the date of its determination, consolidated shareholders’ equity of WestRock and its consolidated Subsidiaries, as determined in accordance with GAAP.
“Equity Interest” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations, or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), if such Person is a limited liability company, membership interests and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, whether outstanding on the date hereof or issued on or after the Effective Date, but excluding debt securities convertible or exchangeable into such equity.
“Equivalent Amount” means, whenever this Agreement requires or permits a determination on any date of the equivalent in any currency (the “base currency”) of an amount expressed in any other currency (the “other currency”), the equivalent amount in such base currency of such amount expressed in the other currency as determined by Administrative Agent on such date on the basis of the Spot Rate for the purchase of the base currency with such other currency on the relevant Computation Date provided for hereunder. For the avoidance of doubt, the Equivalent Amount in Euros of any amount denominated in Euros shall be such amount.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations thereunder, all as the same may be in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.
“ERISA Affiliate” means an entity which is under common control with any Obligor within the meaning of Section 4001(a)(14) of ERISA or is a member of a group which includes any Obligor, and which is treated as a single employer under subsection (b) or (c) of Section 414 of the Code.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) with respect to any Pension Plan, the failure to satisfy the minimum funding standard under Section 412 of the Code and Section 302 of ERISA, whether or not waived; (c) a withdrawal by WestRock or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (d) a complete or partial withdrawal, within the meaning of Section 4203 or 4205 of ERISA, by WestRock or any ERISA Affiliate from a Multiemployer Plan or the receipt by any Obligor or any ERISA Affiliate of notification that a Multiemployer Plan is insolvent within the meaning of Title IV of ERISA or in “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA; (e) the filing of a notice with the PBGC of intent to terminate a Pension Plan in a distress termination described in Section 4041(c) of ERISA or the commencement of proceedings by the PBGC to terminate or to appoint a trustee to administer a Pension Plan; or (f) the imposition of
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any liability under Title IV of ERISA with respect to the termination of any Pension Plan upon WestRock or any ERISA Affiliate.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EU Insolvency Regulation” has the meaning assigned to such term in the definition of “Solvent.”
“EU Regulation” has the meaning assigned to such term in Section 3.15(e).
“Euro” and “€” mean the single currency of the Participating Member States.
“Eurodollar”, when used in reference to any Loan or Borrowing in Dollars or Euros, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.
“Eurodollar Illegality Notice” has the meaning assigned to such term in Section 2.18(a).
“Event of Default” has the meaning assigned to such term in Section 7.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated, but for the purposes of the U.K. not including deemed net income), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes or withholding Taxes (Quellensteuern) pursuant to the laws of Germany, for the avoidance of doubt, including taxes imposed according to section 50a paragraph 7 of the German income tax act (Einkommensteuergesetz) (other than withholding Taxes pursuant to sections 43ff of the German income tax act (Einkommensteuergesetz)), imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Borrowers under Section 2.18(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.16(g) and Section 2.16(j), and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” means that certain Credit Agreement, dated as of July 1, 2015 (as amended by Amendment No. 1 thereto, dated as of July 1, 2016, Amendment No. 2 thereto, dated as of June 30, 2017, Amendment No. 3 thereto, dated as of March 7, 2018, and Amendment No. 4 thereto, dated as of November 21, 2019) by and among WestRock, the Parent, WestRock Company of Canada Holdings Corp./Compagnie de Holdings WestRock du Canada Corp. (formerly, RockTenn Company of Canada Holdings Corp./Compagnie De Holdings RockTenn Du Canada Corp.), a Nova Scotia unlimited company (together with the Parent, as
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borrowers), and any other Subsidiary of the Parent that becomes an additional borrower pursuant thereto, WestRock RKT and WestRock MWV, a Delaware limited liability company, as guarantors, the lenders party thereto, and Wells Fargo Bank, National Association, as administrative agent, and as the same may be further amended, modified, waived, supplemented, restated, refinanced or otherwise replaced from time to time in each case pursuant to an Approved Amendment.
“Existing Senior Notes” has the meaning ascribed to such term in the Existing Credit Agreement.
“Farm Credit Term Loan Facility” has the meaning ascribed to such term in the Existing Credit Agreement.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, and any agreements entered into pursuant to Section 1471(b)(1) of the Code (and any amended or successor version described above) and any intergovernmental agreements implementing the foregoing.
“Federal Funds Effective Rate” means, 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 NYFRB, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by Administrative Agent from three federal funds brokers of recognized standing selected by it. Notwithstanding the foregoing, if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee Letter” means that certain fee letter, dated as of the Effective Date, executed by Administrative Borrower on behalf of Borrowers setting forth the applicable fees relating to this Agreement to be paid to Administrative Agent, on its behalf and on behalf of the Lenders.
“Fiscal Quarter” means any fiscal quarter of the SEC Filer.
“Fiscal Year” means any fiscal year of the SEC Filer.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the LIBO Rate for any currency or Daily Simple SONIA.
“Foreign Lender” means any Lender or Participant that is not a U.S. Person.
“Foreign Obligor” means each Borrower and any Guarantor that is a Foreign Subsidiary.
“Foreign Plan” means each “employee benefit plan” (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) maintained or contributed to by any Obligor or any of its Subsidiaries or in respect of which any Obligor or any of its Subsidiaries is obligated to make contributions, in each case, for the benefit of employees of any Obligor or any of its Subsidiaries other than those employed within the United States, other than a plan maintained exclusively by a Governmental Authority.
“Foreign Plan Event” means, with respect to any Foreign Plan, (a) the failure to make or, if applicable, accrue in accordance with applicable accounting practices, any employer or
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employee contributions required by applicable law or by the terms of such Foreign Plan; (b) the failure to register or loss of good standing with applicable regulatory or tax authorities of any such Foreign Plan required to be registered or registered to maintain advantageous tax status; or (c) the failure of any Foreign Plan to comply with any provisions of applicable law and regulations or with the material terms of such Foreign Plan.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“Fully Satisfied” or “Full Satisfaction” means, as of any date, that on or before such date with respect to the Loan Documents: (a) the principal of and interest accrued to such date on the Loans shall have been paid in full in cash, (b) all fees, expenses, and other amounts then due and payable (other than contingent amounts for which a claim has not been made) under any Loan Document shall have been paid in full in cash, and (c) the Commitments shall have expired or irrevocably been terminated.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding, or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“Funded Debt” means, with respect to any Person, without duplication, all “Funded Debt” (as such term is defined in and as calculated pursuant to the terms of the Existing Credit Agreement) of such Person.
“Funding Borrower” has the meaning assigned to such term in Section 9.15(f).
“GAAP” means generally accepted accounting principles and practices set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the US accounting profession).
“German Borrower” means, individually and collectively, (a) WestRock Packaging Systems Germany GmbH, a private limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany with its corporate seat in Trier and its business address at Schiffstraße 1, 54293 Trier, registered with the commercial register of the local court (Amtsgericht) of Wittlich under HRB 42902 and (b) any additional Borrower designated pursuant to Section 2.4 organized under the laws of Germany.
“German Limited Liability Companies Act” means the German Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung, GmbHG)
“Germany” means the Federal Republic of Germany.
“Governmental Authority” means the government of the United States or any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank, or other entity exercising executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of or pertaining to government, including any supra-national bodies (such as the European Union or the European Central Bank).
“Guarantor” means Parent, WestRock, WestRock RKT, WestRock MWV and any other Person executing a Guaranty Agreement or joinder thereto.
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“Guaranty Agreement” means, collectively, (a) that certain Guaranty Agreement dated as of the Effective Date executed and delivered by the Parent, WestRock and those additional entities that hereafter become parties thereto, (b) that certain Subsidiary Guaranty Agreement dated as of the Effective Date executed and delivered by WestRock RKT and WestRock MWV and those additional entities that hereafter become parties thereto in favor of Administrative Agent and Lenders, and (c) any other guaranty agreement delivered to Administrative Agent from time to time by any Person providing a guarantee of any of the Obligations, in form and substance reasonably acceptable to Administrative Agent.
“Guaranty Obligations” means, with respect to any Person, without duplication, any obligations of such Person (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including any obligation, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting security therefor, (b) to advance or provide funds or other support for the payment or purchase of any such Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person (including keep well agreements, maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of any holder of Indebtedness of such other Person, (c) to lease or purchase Property, securities or services primarily for the purpose of assuring the holder of such Indebtedness, or (d) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.
“Hazardous Substances” means any substance, waste, chemical, pollutant or contaminant, material or compound in any form, including petroleum, crude oil or any fraction thereof, asbestos or asbestos containing materials, or polychlorinated biphenyls, that is regulated pursuant to any Environmental Law.
“Hedging Agreements” means, with respect to any Person, any agreement entered into to protect such Person against fluctuations in interest rates, or currency or raw materials values, including any interest rate swap, cap or collar agreement or similar arrangement between such Person and one or more counterparties, any foreign currency exchange agreement, currency protection agreements, commodity purchase or option agreements or other interest or exchange rate or commodity price hedging agreements, but excluding (a) any purchase, sale or option agreement relating to commodities used in the ordinary course of such Person’s business and (b) any agreement existing as of the Effective Date or entered into after the Effective Date in accordance with the historical practices of the Consolidated Companies related to the fiber trading and fiber brokerage business of such Persons.
“Illegality Notice” has the meaning assigned to such term in Section 2.18(a).
“Immaterial Subsidiary” means any Subsidiary of WestRock which is deemed to be an “Immaterial Subsidiary” under and pursuant to the terms of the Existing Credit Agreement.
“Incremental Commitment” has the meaning assigned to such term in Section 2.19.
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“Indebtedness” means, with respect to any Person, without duplication, all “Indebtedness” of such Person as such term is defined in and as calculated pursuant to the terms of the Existing Credit Agreement.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Obligor under any Loan Document and (b) to the extent not otherwise described in clause (a) of this definition, Other Taxes.
“Indemnitee” has the meaning assigned to such term in Section 9.3(b).
“Information” has the meaning assigned to such term in Section 9.11(b).
“Information Materials” has the meaning assigned to such term in Section 5.7.
“Intellectual Property” means all Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses.
“Interest Election Request” means a request by Borrowers to convert or continue a Borrowing in accordance with Section 2.7.
“Interest Expense” means, with respect to any Person for any period, the sum of the amount of interest paid or accrued in respect of such period.
“Interest Payment Date” means (a) with respect to any Base Rate Loan, the second Business Day following each Quarterly Date; and (b) with respect to any Eurodollar 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 Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period; and (c) with respect to any SONIA Loan, each date that is on the numerically corresponding day in each calendar month that is one month or three months, as applicable, after the Borrowing of such Loan; provided that, as to any such SONIA Loan, if any such date would be a day other than a Business Day, such date 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 date shall be the next preceding Business Day.
“Interest Period” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three, or six months thereafter (or such longer or shorter period as may be agreed by the applicable Lenders), as Borrowers may elect in accordance with Section 2.7; provided that, unless otherwise agreed by the applicable Lenders, (a) 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, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month 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.
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“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person or (b) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Joint Venture” means, with respect to any Person, any corporation or other entity (including limited liability companies, partnerships, joint ventures, and associations) regardless of its jurisdiction of organization or formation, of which some but less than 100% of the total combined voting power of all classes of voting Equity Interests or other ownership interests, at the time as of which any determination is being made, is owned by such Person, either directly or indirectly through one or more Subsidiaries of such Person.
“Judgment Currency” has the meaning assigned to such term in Section 9.23.
“KapStone” means KapStone Paper and Packaging Corporation, a Delaware corporation.
“KapStone Paper Chip Mill Contracts” means the non-cancellable contracts entered into by KapStone in 2015 to construct facilities to produce wood chips for use at KapStone’s Charleston and Roanoke Rapids paper chip mills.
“Lead Arranger” means Rabobank, in its capacity as sole lead arranger and sole bookrunner for the credit facility under this Agreement.
“Lender” means a Lender with a Commitment or, if the Commitments have terminated or expired, a Lender with Revolving Credit Exposure.
“Lenders” means the Persons party hereto as a “Lender” and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption and any Additional Lender in connection with an Incremental Commitment, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
“LIBO Rate” means, for any Interest Period for any Eurodollar Loan comprising part of the same Borrowing in any currency, an interest rate per annum:
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provided that in no event shall the LIBO Rate for any currency be less than zero.
“License” has the meaning assigned to such term in Section 5.6(c).
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind in the nature of a security interest (including any conditional sale or other title retention agreement and any lease in the nature thereof).
“Loan” means a loan or advance made pursuant to Section 2.1.
“Loan Documents” means, collectively, this Agreement, all Guaranty Agreements, the Fee Letter, all Borrowing Requests, all Interest Election Requests, all Notices of Incremental Commitments and all other documents, instruments, certificates, and agreements executed, delivered, or acknowledged by an Obligor (other than Organizational Documents) that are issued under or delivered pursuant to this Agreement.
“Loans” mean the loans made by the Lenders to any Borrower pursuant to this Agreement in the form of a Loan.
“Lux Borrower” means, individually and collectively, (a) WRK Luxembourg S.à r.l., a private limited liability company (société à responsabilité limitée), incorporated under the laws of Luxembourg, having its registered office at 51, Boulevard Grande Duchesse Charlotte, L-1331 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B159099, (b) WRK International Holdings S.à r.l., a private limited liability company (société à responsabilité limitée), incorporated under the laws of Luxembourg, having its registered office at 51, Boulevard Grande Duchesse Charlotte, L-1331 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and
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Companies Register under number B194811 and (c) any additional Borrower designated pursuant to Section 2.4 organized under the laws of Luxembourg.
“Luxembourg” means the Grand Duchy of Luxembourg.
“Luxembourg Insolvency Rules” has the meaning assigned to such term in the definition of “Solvent.”
“Luxembourg Loan” means any Loan made to any Lux Borrower by a Lender.
“Luxembourg Tax Deduction” has the meaning assigned to such term in Section 2.16(k).
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities or financial condition of WestRock and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the ability of the Obligors, taken as a whole, to perform their obligations under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Obligors, taken as a whole, of the Loan Documents.
“Material Contract” means any contract or other arrangement to which WestRock or any of its Subsidiaries is a party that is required to be filed with the SEC.
“Material Subsidiary” means each Restricted Subsidiary that is not an Immaterial Subsidiary.
“Maturity Date” means February 26, 2024.
“Maximum Borrower Liability” has the meaning assigned to such term in Section 9.15(c).
“Maximum Rate” has the meaning assigned to such term in Section 9.12.
“Moody’s” means Moody’s Investors Service, Inc.
“Multi Packaging Solutions” has the meaning assigned to such term in the preamble hereto.
“Multiemployer Plan” means any employee benefit plan of the type defined in Section 3(37) of ERISA or described in Section 4001(a)(3) of ERISA and that is subject to ERISA, to which WestRock or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five (5) plan years, has made or been obligated to make contributions.
“Multi Packaging Solutions” has the meaning assigned to such term in the preamble hereto.
“Net Assets” means, with respect to a German Borrower, the net assets (Reinvermögen) of such German Borrower calculated in accordance with § 42 of the German Limited Liability Companies Act; §§ 242, 264 of the German Commercial Code (Handelsgesetzbuch, HGB) and the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsgemäßer Buchführung) applied consistently with past practice, save that (a) the amount of non-distributable assets according to § 253 (6), § 268 (8) and § 272 (5) of such German Commercial Code (Handelsgesetzbuch) shall not be taken into account as assets, (b) loans or other liabilities incurred by such German Borrower in violation of this Agreement shall not be taken into account as liabilities, (c) liabilities owed by such German Borrower to any member of its group shall be disregarded if and to the extent that such liabilities are subordinated or considered subordinated by law or should be subordinated by agreement by the respective creditor, acting in
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good faith, in each case at least to the rank pursuant to section 39 para 1 no. 5 of the German Insolvency Act (Insolvenzordnung) and (d) liabilities which are subordinated pursuant to section 39 para 1 no. 5 of the German Insolvency Act (Insolvenzordnung) or section 39 para 2 of the German Insolvency Act (Insolvenzordnung) shall be disregarded.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders in accordance with the terms of Section 9.2 and (b) has been approved by Administrative Agent and the Required Lenders.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
“Notice of Incremental Commitment” has the meaning assigned to such term in Section 2.19.
“NYFRB” means the Federal Reserve Bank of New York.
“Obligations” means all of the obligations, indebtedness and liabilities of the Obligors to the Lenders and Administrative Agent under this Agreement or any of the other Loan Documents, including principal, interest, fees, prepayment premiums (if any), expenses, reimbursements and indemnification obligations and other amounts, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees, and expenses that accrue after the commencement by or against any Obligor of any proceeding under any Debtor Relief Law, regardless of whether such interest, fees, and expenses are allowed or allowable in whole or in part as a claim in such proceeding.
“Obligor” means each Borrower and each Guarantor.
“Offshore Currency” means Sterling and Euros.
“Offshore Currency Loan” means any Loan denominated in an Offshore Currency.
“Organizational Documents” means, with respect to any Person (a) in the case of any corporation, the certificate of incorporation and by-laws (or similar documents) of such Person, (b) in the case of any limited liability company, the certificate or articles of formation of such Person (or, in the case of (x) each U.K. Borrower, its memorandum and articles of association, (y) each Lux Borrower, its articles of association, and (z) each German Borrower, its articles of association), (c) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such Person, (d) in the case of any general partnership, the partnership agreement (or similar document) of such Person, (e) in any other case, the functional equivalent of the foregoing, and (f) any shareholder, voting trust, or similar agreement between or among any holders of Equity Interests of such Person.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Debtor Relief Law” has the meaning assigned to such term in Section 9.15(c).
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“Other Taxes” means all present or future stamp, registration, court or documentary, intangible, recording, filing or similar Taxes or notarial fees that, in each case, arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.18(b)) and any Luxembourg registration duties (droit d'’enregistrement) payable due to registration of any Loan Document by the Lenders when such registration is or was not required to maintain, preserve or enhance the rights of Administrative Agent or any Lender under any Loan Document.
“Parent” has the meaning ascribed to such term in the preamble to this Agreement.
“Participant” has the meaning assigned to such term in Section 9.4(e).
“Participant Register” has the meaning assigned to such term in Section 9.4(e).
“Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Patent License” means all agreements, whether written or oral, providing for the grant by or to an Obligor of any right to manufacture, use or sell any invention covered by a Patent.
“Patents” means (a) all letters patent of the United States or any other country and all reissues and extensions thereof, and (b) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any successor thereto.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by WestRock or any ERISA Affiliate or to which WestRock or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five (5) plan years.
“Permitted Securitization Entity” means a Person (other than a Permitted Securitization Subsidiary, individual or Governmental Authority) that was established by a financial institution or Affiliate thereof to purchase or otherwise acquire assets for the principal purpose of securitization, and which purchase or acquisition of such assets is funded through the issuance of securities by such Person or by such Person incurring indebtedness; provided that a financial institution or Affiliate of a financial institution that purchases or acquires assets for the principal purpose of securitization shall also be considered a Permitted Securitization Entity.
“Permitted Securitization Subsidiary” means any Subsidiary of WestRock (other than Parent) that (a) is directly or indirectly wholly-owned by WestRock, (b) is formed and operated solely for purposes of a Permitted Securitization Transaction, (c) is formed to qualify as a “bankruptcy remote” entity, (d) has organizational documents which limit the permitted activities of such Permitted Securitization Subsidiary to the acquisition of Securitization Assets from WestRock or one or more of its Subsidiaries, the securitization of such Securitization Assets and activities necessary or incidental to the foregoing, (e) if organized within the United States, is
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organized so as to meet S&P’s requirements for special purpose entities engaged in the securitization of assets, (f) if organized within Canada or any province or territory thereof, is organized so as to meet the requirements for special purpose entities engaged in the securitization of assets by any recognized rating agency operating in such jurisdiction and (g) if organized outside the United States and Canada (and any province or territory thereof), is organized so as to meet the requirements for special purpose entities engaged in the securitization of assets by any recognized rating agency operating in such jurisdiction; provided that if no requirements for special purpose entities exist in such jurisdiction, WestRock shall certify to Administrative Agent that no recognized rating agency is operating in such jurisdiction that customarily rates securitization transactions.
“Permitted Securitization Transaction” means (a) the transfer by WestRock or one or more of its Restricted Subsidiaries of Securitization Assets to one or more (x) Permitted Securitization Subsidiaries or (y) Permitted Securitization Entities and, in each case, the related financing of such Securitization Assets; provided that, in each case, (i) such transaction is the subject of a favorable legal opinion as to the “true sale” of the applicable Securitization Assets under the laws of the applicable jurisdiction and (ii) such transaction is non-recourse to WestRock and its Restricted Subsidiaries under the laws of the applicable jurisdiction, except for Standard Securitization Undertakings, (b) any credit facility backed or secured by Receivables or any other Securitization Assets of the Consolidated Companies among one or more Consolidated Companies and a financial institution, which credit facility is non-recourse to WestRock and its Restricted Subsidiaries under the laws of the applicable jurisdiction, except for Standard Securitization Undertakings or (c) any other arrangement or agreement in respect of a “true sale” (or any similar concept in the applicable jurisdiction) of Receivables or any other Securitization Assets in accordance with the laws of the United States or any State thereof, Canada, any province or territory of Canada or other applicable jurisdiction.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority, or other entity.
“Plan” means any “employee benefit plan” (as defined in Section 3(3) of ERISA) which is covered by ERISA and with respect to which any Obligor or any ERISA Affiliate is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Platform” has the meaning assigned to such term in Section 9.1(d).
“Prime Rate” means the rate of interest per annum published in the Wall Street Journal as the U.S. dollar “prime rate” for such day or, if the Wall Street Journal does not publish such rate on such day, then such rate as most recently published prior to such day.
“Prior Credit Agreement” means that certain Credit Agreement, dated as of April 27, 2018 (as amended from time to time), by and among the Parent (f/k/a WestRock Company), Borrowers, the lenders party thereto, and Coöperatieve Rabobank U.A., New York Branch, in its capacity as administrative agent, as in effect on the Effective Date.
“Priority Debt Basket” means, at any time, the “Priority Debt Basket” as such term is defined in and as calculated pursuant to the terms of the Existing Credit Agreement.
“Process Agent” has the meaning assigned to such term in Section 9.9(d).
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“Pro Forma Basis” means, in connection with the calculation as of the applicable Calculation Date (utilizing the principles set forth in Section 1.6(c)) of the financial covenants set forth in Section 6.1(a) and (b) in respect of a proposed transaction or designation of a Restricted Subsidiary as an Unrestricted Subsidiary (a “Specified Transaction”), the making of such calculation after giving effect on a pro forma basis to:
“Pro Rata Share” means with respect to any Lender in respect of any rights or obligations affecting or involving all Lenders (including any reimbursement obligations in respect of any indemnity claim arising out of an action or omission of Administrative Agent under this Agreement), the percentage (carried out to the ninth decimal place) of the total Commitments hereunder represented by the aggregate amount of such Lender’s Commitments. If the Commitments have terminated or expired, the Pro Rata Share shall be determined based upon the Revolving Credit Exposure of all such Lenders at such time.
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“Process Agent” has the meaning assigned to such term in Section 9.9(d).
“Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Quarterly Dates” means the last day of March, June, September, and December of each year through the Maturity Date, commencing with the first such date after the Effective Date.
“Rabobank” means Coöperatieve Rabobank U.A., New York Branch.
“Rating” means WestRock’s long-term senior unsecured non-credit-enhanced debt rating as was most recently announced by S&P or Moody’s, as applicable.
“Ratings Level” has the meaning assigned to such term in the definition of “Applicable Margin”.
“Recipient” means (a) Administrative Agent, and (b) any Lender, as applicable.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the LIBO Rate for Dollars, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not the LIBO Rate for Dollars, the time determined by Administrative Agent in its reasonable discretion.
“Refinancing Indebtedness” means, with respect to any Indebtedness (the “Existing Indebtedness”), any other Indebtedness that renews, refinances, refunds, replaces or extends such Existing Indebtedness (or any Refinancing Indebtedness in respect thereof); provided that the principal amount of such Refinancing Indebtedness shall not exceed the principal amount of such Existing Indebtedness except by an amount no greater than accrued and unpaid interest with respect to such Existing Indebtedness and any reasonable fees, premium and expenses relating to such renewal, refinancing, refunding, replacement or extension, unless at the time such Refinancing Indebtedness is incurred, such excess amount shall be permitted under Section 6.3 and, if applicable, utilize a basket thereunder.
“Register” has the meaning assigned to such term in Section 9.4(d).
“Regulation T” means Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof.
“Regulation U” means Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof.
“Regulation X” means Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors, attorneys-in-fact, and representatives of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection, migrating or leaching into the Environment, or into or from any building or facility.
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“Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto and (ii) with respect to a Benchmark Replacement in respect of Loans denominated in any Agreed Currency (other than Dollars), (a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived by regulation.
“Required Financial Information” means, as to any Fiscal Quarter or Fiscal Year, the financial information required by subsections (a) through (c) of Section 5.7 for such Fiscal Quarter or Fiscal Year, as applicable.
“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures, and unused Commitments representing more than 50% of the sum of the aggregate Revolving Credit Exposures and unused Commitments of all Lenders at such time; provided the Commitments of, and the portion of the Revolving Credit Exposure held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Requirements of Law” means, as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, 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.
“Resignation Effective Date” has the meaning assigned to such term in Section 8.6(a).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, chief financial officer, principal accounting officer, treasurer, or controller of any Person, and in the case of (x) each Lux Borrower, the manager (gérant) designated for that purpose by a resolution of the board of managers, (y) each U.K. Borrower, a director of such U.K. Borrower, and (z) each German Borrower, the manager (Geschäftsführer) of such German Borrower. Any document delivered hereunder that is signed by a Responsible Officer of any Person shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Person and such Responsible Officer shall be presumed to have acted on behalf of such Person.
“Restricted Subsidiary” means any Subsidiary of WestRock (unless the context otherwise requires) other than any such Subsidiary that is or shall become an Unrestricted Subsidiary.
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“Revolving Credit Availability Period” means the period from and including the Effective Date and ending on the earlier of the Business Day immediately preceding the Maturity Date and the date of termination of the Commitments pursuant to the terms hereof.
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of the Equivalent Amount in Euros of the outstanding principal amount of such Lender’s Loans at such time.
“S&P” means Standard & Poor’s Financial Services LLC, a division of S&P Global Inc.
“Sanctions” means any sanctions administered by, maintained by, or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom, the Netherlands, Luxembourg, Germany or other relevant sanctions authority in any jurisdiction in which an Obligor or any of its Subsidiaries is organized or located or conducts business.
“SEC” means the Securities and Exchange Commission, any successor thereto and any analogous Governmental Authority succeeding to any of its principal functions.
“SEC Filer” means WestRock or such Restricted Subsidiary that files with the SEC the audited and unaudited financial statements of WestRock and its consolidated Subsidiaries.
“Securitization Assets” means any accounts receivable, notes receivable, rights to future lease payments or residuals (collectively, the “Receivables”) owed to or owned by WestRock or any Subsidiary (whether now existing or arising or acquired in the future), all collateral securing such Receivables, all contracts and contract rights, purchase orders, records, security interests, financing statements or other documentation in respect of such Receivables and all guarantees, letters of credit, insurance or other agreements or arrangements supporting or securing payment in respect of such Receivables, all lockboxes and collection accounts in respect of such Receivables (but only to the extent such lockboxes and collection accounts contain only amounts related to such Receivables subject to a Permitted Securitization Transaction), all collections and proceeds of such Receivables and other assets which are of the type customarily granted or transferred in connection with securitization transactions involving receivables similar to such Receivables.
“Share Capital” means, with respect to a German Borrower, the share capital (Stammkapital) of such German Borrower calculated in accordance with § 5 of the German Limited Liability Companies Act save that (a) the amount of any increase of the stated share capital (Stammkapital) of the German Borrower registered after the Effective Date without the prior written consent of Administrative Agent shall be deducted from the relevant stated share capital and (b) in case the stated share capital of the German Borrower is not fully paid up (nicht voll eingezahlt) and has not been demanded (nicht eingefordert), the amount which is not paid up and not demanded shall be deducted from the stated share capital.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
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“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Solvent” means, with respect to any Person (other than a Person organized under the laws of Luxembourg, the United Kingdom or Germany), that as of the date of determination, (a) the sum of such Person’s debt (including contingent liabilities) does not exceed the present fair saleable value of such Person’s present assets; (b) such Person’s capital is not unreasonably small in relation to its business as contemplated on such date of determination; (c) such Person has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and (d) such Person is “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and applicable laws relating to fraudulent transfers and conveyances. For purposes of the foregoing definition, (i) the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5), (ii) “debt” means liability on a “claim,” and (iii) “claim” means any (A) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured. “Solvent” shall mean with respect to any Person organized under the laws of (i) the United Kingdom, that such Person is able to pay its debts as they fall due, is not deemed unable to pay its debts as they fall due within the meaning of Section 123(1) of the Insolvency Act of 1986 and that the value of its assets is greater than the value of its liabilities, taking into account contingent and prospective liabilities, (ii) Luxembourg, that such Person (1) is not unable to meet its financial obligations (cessation de paiements) and has not lost its creditworthiness (ébranlement de credit) within the meaning of Article 437 of the Luxembourg Commercial Code; (2) is not subject to insolvency proceedings within the meaning of Articles 437 ff. of the Luxembourg Commercial Code or any other insolvency proceedings pursuant to the regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (“EU Insolvency Regulation”); (3) is not subject to controlled management (gestion contrôlée) within the meaning of the grand ducal regulation of 24 May 1935 on controlled management; (4) has not entered into voluntary arrangement with creditors (concordat préventif de faillite) within the meaning of the law of 14 April 1886 on arrangements to prevent insolvency, as amended; (5) is not subject to suspension of payments (sursis de paiement) within the meaning of Articles 593 ff. of the Luxembourg Commercial Code; and (6) is not subject to voluntary or compulsory winding up pursuant to the law of 10 August 1915 on commercial companies, as amended (“Luxembourg Insolvency Rules”) and (iii) Germany, that such Person is not unable to pay its debts as they fall due (zahlungsunfähig) within the meaning of Sec. 17 German Insolvency Code (Insolvenzordnung - InsO), imminent insolvency (drohende Zahlungsunfähigkeit) within the meaning of Sec. 18 German Insolvency Code (Insolvenzordnung - InsO) nor overindebted within the meaning of Sec. 19 of the German Insolvency Code (Insolvenzordnung - InsO).
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“SONIA” means a rate equal to the Sterling Overnight Index Average as administered by the SONIA Administrator.
“SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SONIA Interest Day” has the meaning specified in the definition of “Daily Simple SONIA”.
“SONIA Loan” means a Loan that bears interest at a rate based on Daily Simple SONIA.
“Specified Transaction” has the meaning assigned to such term in the definition of “Pro Forma Basis”.
“Spot Rate” for a currency means the rate determined by Administrative Agent to be the rate quoted by Administrative Agent as the spot rate for the purchase by Administrative Agent of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. (New York time) on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made; provided that Administrative Agent may obtain such spot rate from another nationally-recognized financial institution designated by Administrative Agent if Administrative Agent does not have as of the date of determination a spot buying rate for any such currency.
“Standard Securitization Undertakings” has the meaning ascribed to such term in the Existing Credit Agreement.
“Statutory Reserve Rate” means 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 funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding 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 or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Sterling” and “£” mean the lawful currency of the United Kingdom.
“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power to elect a majority of the directors or other managers of such corporation, partnership, limited liability company or other entity (irrespective of whether or not at the time, any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) are at the time owned by such Person directly or indirectly through one or more
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intermediaries or subsidiaries. Unless otherwise specified, “Subsidiary” means a Subsidiary of WestRock.
“Successor Borrower” has the meaning assigned to such term in Section 6.4(a)(i).
“Successor WestRock” has the meaning assigned to such term in Section 6.4(a)(vi).
“TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees, or other charges imposed by any Governmental Authority, including any interest, additions to tax, or penalties applicable thereto.
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Adjustment” means, the Benchmark Replacement Adjustment which can be determined as of the Benchmark Replacement Date for the Term SOFR Transition Event and if no such Benchmark Replacement Adjustment can be determined, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent 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 on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time; provided, that, Administrative Agent shall provide the Lenders with notice of the Benchmark Replacement Adjustment so identified at least 5 Business Days prior to the Benchmark Replacement Date for the Term SOFR Transition Event.
“Term SOFR Notice” means a notification by Administrative Agent to the Lenders and Borrowers of the occurrence of a Term SOFR Transition Event.
“Term SOFR Transition Event” means the determination by Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for Administrative Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as applicable, has previously occurred resulting in a Benchmark Replacement in accordance with Section 2.13 that is not Term SOFR.
“Total Credit Exposure” means, as to any Lender at any time, the aggregate amount of the Revolving Credit Exposures and unused Commitments of such Lender at such time.
“Total Funded Debt” means, without duplication, the sum of: (a) Consolidated Funded Debt, (b) with respect to a Permitted Securitization Transaction, (i) if a Permitted Securitization Subsidiary is a party to such Permitted Securitization Transaction, the aggregate principal, stated or invested amount of outstanding loans made to the relevant Permitted Securitization Subsidiary
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under such Permitted Securitization Transaction and (ii) if a Permitted Securitization Entity is a party to such Permitted Securitization Transaction, the aggregate amount of cash consideration received as of the date of such sale or transfer by WestRock and its Restricted Subsidiaries from the sale or transfer of Receivables or other Securitization Assets during the applicable calendar month in which such sale or transfer took place under such Permitted Securitization Transaction, and (c) to the extent not otherwise included, the outstanding principal balance of Indebtedness under any Permitted Securitization Transaction referenced in clause (b) of the definition thereof.
“Trademark License” means any agreement, written or oral, providing for the grant by or to an Obligor of any right to use any Trademark.
“Trademarks” means (a) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade dress and service marks, logos and other source or business identifiers, and the goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and (b) all renewals thereof.
“Transactions” means the execution, delivery and performance by each Obligor of this Agreement and the other Loan Documents to which such Obligor is intended to be a party and the consummation of the transactions contemplated thereby, the borrowing of Loans, the repayment in full of all obligations under the Prior Credit Agreement, the use of the proceeds thereof, and the payment of all fees and expenses to be paid on or prior to the Effective Date and owing in connection with the foregoing.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate for the applicable currency, Daily Simple SONIA or the Base Rate.
“U.K. Borrower” means, individually and collectively, (a) Multi Packaging Solutions Limited, a limited company incorporated under the laws of England and Wales with company number 08568993, having its registered office at Suite 5, 2nd Floor Aspect House, Bennerley Road, Nottingham, United Kingdom, NG6 8WR, and (b) any additional Borrower designated pursuant to Section 2.4 organized under the laws of England and Wales.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“U.K. Qualifying Lender” means a Lender which is beneficially entitled to interest payable in respect of an advance under a Loan Document and is (a) a Lender (i) that is a bank (as defined for the purpose of section 879 of the United Kingdom Income Tax Act 2007) making an advance under a Loan Document or (ii) in respect of an advance made under a Loan Document by a Person that was a bank (as defined for the purpose of section 879 of the United Kingdom Income Tax Act 2007) at the time such advance was made, and in either case is subject to United Kingdom corporation tax on any payments of interest made with respect to such advance; (b) a Lender which
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is (i) a company resident in the United Kingdom for United Kingdom tax purposes, (ii) a partnership, each member of which is (x) a company resident in the United Kingdom for United Kingdom tax purposes, or (y) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the Corporation Tax Act 2009) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the Corporation Tax Act 2009, or (iii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the Corporation Tax Act 2009) of that company; or (c) a U.K. Treaty Lender.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“U.K. Tax Confirmation” means confirmation by a Lender that the Person beneficially entitled to interest payable to such Lender in respect of an advance under a Loan Document is either (a) a company resident in the United Kingdom for United Kingdom tax purposes, (b) a partnership, each member of which is (i) a company resident in the United Kingdom for United Kingdom tax purposes, or (ii) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the Corporation Tax Act 2009) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the Corporation Tax Act 2009, or (c) a company not so resident in the United Kingdom that carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the Corporation Tax Act 2009) of that company.
“U.K. Taxes” means Taxes (including Other Taxes) imposed by the United Kingdom.
“U.K. Treaty” has the meaning assigned to such term in the definition of “U.K. Treaty State”.
“U.K. Treaty Lender” means a Lender that (a) is treated as a resident of a U.K. Treaty State for the purposes of a U.K. Treaty and (b) does not carry on a business in the United Kingdom through a permanent establishment with which such Lender’s participation is effectively connected.
“U.K. Treaty State” means a jurisdiction party to an income tax treaty with the United Kingdom (a “U.K. Treaty”) that makes provision for full exemption from tax imposed by the United Kingdom on interest.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“United States” and “U.S.” mean the United States of America.
“Unrestricted Subsidiary” means any Subsidiary which is designated as being an “Unrestricted Subsidiary” under and pursuant to the terms of the Existing Credit Agreement.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
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“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.16(g).
“USA Patriot Act” has the meaning assigned to such term in the definition of “Anti-Terrorism Laws”.
“WestRock” has the meaning ascribed to such term in the preamble to this Agreement.
“WestRock MWV” means WestRock MWV, LLC, a Delaware limited liability company.
“WestRock Packaging Systems” has the meaning assigned to such term in the preamble hereto.
“WestRock RKT” means WestRock RKT, LLC, a Georgia limited liability company.
“Withholding Agent” means any Obligor and Administrative Agent.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
“WRK International” has the meaning assigned to such term in the preamble hereto.
“WRK Luxembourg” has the meaning assigned to such term in the preamble hereto.
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If no election as to the currency of Borrowing is specified, then the requested Borrowing shall be denominated in Euros. If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be a Base Rate Borrowing, if denominated in Dollars, or a Eurodollar Borrowing, if denominated in an Offshore CurrencyEuros. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then Borrowers shall be deemed to have selected an Interest Period of one month’s duration. If no Interest Payment Date is specified with respect to any requested SONIA Borrowing, then Borrowers shall be deemed to have selected an Interest Payment Date one month after the date of such Borrowing. Promptly following receipt of a Borrowing Request in accordance with this Section, Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
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If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then Borrowers shall be deemed to have selected an Interest Period of one month’s duration.
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then Administrative Agent shall give notice thereof to Borrowers and the Lenders as promptly as practicable thereafter, (x) in the case of any Loan denominated in Dollars, from and after the date on which Borrowers receive notice thereof until the date on which such circumstances ceasescease, in the case of clauses (i) and (ii)(A) above, all Lenders’ and, in the case of clause (ii)(B) above, the affected Lender’s, Loans denominated in Dollars shall bear interest at a rate per annum equal to the Applicable Margin plus the Base Rate, and (y) in the case of any Loan denominated in any Offshore Currency, during the 30-day period next succeeding the date of any such notice (the “Negotiation Period”), Administrative Agent (in consultation with the Lenders) and Borrowers will negotiate in good faith for the purpose of agreeing upon an alternative, mutually acceptable basis (the “Substitute Basis”) for determining the rate of interest to be applicable to the Loans denominated in an Offshore Currency and, as applicable, for such Interest Period. If at the expiry of the Negotiation Period, the Required Lenders, Administrative Agent, and Borrowers have agreed upon a Substitute Basis, the Substitute Basis shall be binding on all parties and, as applicable, be retroactive to, and take effect from, the beginning of such Interest Period, or the day after the last Interest Payment Date, as applicable. If at the expiry of the Negotiation Period, a Substitute Basis shall not have been agreed upon pursuant to this paragraph, Administrative Agent shall notify each Lender of such failure to agree to a Substitute Basis and, within five Business Days after receipt of such notice (or as soon thereafter as may be practicable), each such Lender shall notify Borrowers (through Administrative Agent) of the cost to such Lender (as determined by it in good faith) of funding and maintaining such Loan denominated in anthe applicable Offshore Currency for such Interest Period (as applicable); and the interest payable to such Lender on such Loan for such Interest Period or until such next Interest Payment Date (as
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applicable) shall be determined in good faith (which determination shall be binding absent manifest error) at a rate per annum equal to the Applicable Margin plus the weighted average (as determined by Administrative Agent, which shall be conclusive absent manifest error) of the cost to the Lenders of funding and maintaining such Loan denominated in ansuch Offshore Currency, as applicable, for such Interest Period or until such next Interest Payment Date (as applicable) as so notified by the Lenders; provided that, if any Lender does not notify Administrative Agent of such costs within such period, such cost shall not be included by Administrative Agent in such calculation. Each Lender agrees to use reasonable efforts to avoid or minimize costs to Borrowers under this Section 2.13(a) to the extent set forth in Section 2.18(a). The procedures specified in this Section 2.13(a) shall apply to each Interest Period or Interest Payment Date, as applicable, succeeding the first Interest Period or Interest Payment Date, as applicable, to which they were applied unless and until Administrative Agent shall determine in consultation with the Required Lenders (or, in the case of Section 2.13(a)(ii)(B), the affected Lender(s)) that the conditions referred to in this Section 2.13(a) no longer exist. If the Substitute Basis or the cost of funds rate, as determined hereunder, would be less than zero, such rate will be deemed to be zero for the purposes of this Agreement.
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and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Eurodollar Loan or SONIA Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such other Recipient, Borrowers will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrowers and Administrative Agent in writing of its legal inability to do so.
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To induce the Lenders to enter into this Agreement and to make Loans herein provided for, the Obligors hereby represent and warrant to Administrative Agent and to each Lender that:
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Administrative Agent shall notify Borrowers and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
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Each Borrower shall be deemed to make a representation and warranty to Administrative Agent and the Lenders on the date of each Credit Extension hereunder as to the matters specified in clauses (a), (b), and (c) of this Section 4.2.
The Obligors covenant and agree that on the Effective Date, and so long as this Agreement is in effect and until the Obligations have been Fully Satisfied, the Obligors shall:
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The Obligors will cooperate with Administrative Agent in connection with the publication of certain materials and/or information provided by or on behalf of the Obligors to Administrative Agent and Lenders (collectively, “Information Materials”) pursuant to this Section 5; provided that upon the filing by the Obligors of the items referenced in Section 5.7(a), 5.7(b) or 5.7(d) with the SEC for public availability, the Obligors, with respect to such items so filed, shall not be required to separately furnish such items to Administrative Agent and Lenders. In addition, the Obligors will designate Information Materials (i) that are either available to the public or not material with respect to the Obligors and their Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (ii) that are not Public Information as “Private Information”.
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The Obligors covenant and agree that on the Effective Date, and so long as this Agreement is in effect and until the Obligations have been Fully Satisfied:
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and there shall result from any such failure, waiver, termination or other event a liability to the PBGC or such Plan that would have a Material Adverse Effect; or a Foreign Plan Event occurs that would have a Material Adverse Effect; or
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Notwithstanding the foregoing, if an Event of Default specified in Section 7.1(g) shall occur, then the Commitments shall automatically terminate and all Loans, all accrued interest in respect thereof, all accrued and unpaid fees and other indebtedness or obligations owing to Administrative Agent and/or any of the Lenders hereunder automatically shall immediately become due and payable without presentment, demand, protest or the giving of any notice or other action by Administrative Agent or the Lenders, all of which are hereby waived by the Obligors.
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Sections 2 and 9.3.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received. Notices sent by telecopier shall be deemed to have been given when sent (except that, if not given before or during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day). Notices delivered through electronic communications to the extent provided in Section 9.1(b) shall be effective as provided in such Section 9.1(b).
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If at any time the Farm Credit Term Loan Facility or any other Credit Document (as defined in the Farm Credit Term Loan Facility), or the documentation for any replacement credit facilities therefor, includes (a) representations and warranties, covenants or events of default (including related definitions) in favor of a Lender (as defined in the Farm Credit Term Loan Facility), or lender under any such replacement credit facilities, that are not provided for in this Agreement or the other Loan Documents, (b) representations and warranties, covenants or events of default (including related definitions) in favor of a Lender (as defined in the Farm Credit Term Loan Facility), or lender under any such replacement credit facilities, that are more restrictive than the same or similar provisions provided for in this Agreement and the other Loan Documents and/or (c) requirements for the Farm Credit Term Loan Facility to be secured by collateral or guaranteed by Domestic Subsidiaries of WestRock that are not already Guarantors (any or all of the foregoing, collectively, the “Most Favored Lender Provisions”) (in the case of each of the Most Favored Lender Provisions, other than any differences between the Farm Credit Term Loan Facility and the other Credit Documents (as defined in the Farm Credit Term Loan Facility), on the one hand, and this Agreement and the other Loan Documents, on the other hand, existing as of the Effective Date (or otherwise consistent with such differences)), then (i) such Most Favored Lender Provisions shall immediately and automatically be deemed incorporated into this Agreement and the other Loan Documents as if set forth fully herein and therein, mutatis mutandis, and no such incorporated provision may thereafter be waived, amended or modified except pursuant to the provisions of this Section 9.2, and (ii) Borrowers and the Guarantors shall promptly, and in any event within five (5) days after entering into any such Most Favored Lender Provisions, so advise Administrative Agent in writing. Thereafter, upon the request of the Required Lenders, Borrowers and the Guarantors shall enter into an amendment to this Agreement and, if applicable, the other Loan Documents evidencing the incorporation of such Most Favored Lender Provisions, it being agreed that any failure to make such request or to enter into any such amendment shall in no way qualify or limit the incorporation described in clause (i) of the immediately preceding sentence.
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Notwithstanding the foregoing, no provision of this Section 9.15(c) shall limit the liability of any Borrower for loans advanced directly or indirectly to it under this Agreement.
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“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
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a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and delivered by its officer or officers thereunto duly authorized as of the date first above written.
PARENT AND WESTROCK: | WRKCO INC., a Delaware corporation By: WESTROCK COMPANY, a Delaware corporation By: |
Credit Agreement
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BORROWERS: | WRK LUXEMBOURG S.À R.L., a limited liability company incorporated under the laws of Luxembourg By: By: |
| WRK INTERNATIONAL HOLDINGS S.À R.L., a limited liability company incorporated under the laws of Luxembourg By: By: |
| MULTI PACKAGING SOLUTIONS LIMITED, a limited company incorporated under the laws of England and Wales By: |
Credit Agreement
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| WESTROCK PACKAGING SYSTEMS GERMANY GMBH, a private limited liability company incorporated under the laws of Germany By: By: |
Credit Agreement
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ADMINISTRATIVE AGENT AND LENDER: | COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, as Administrative Agent and a Lender By: Name: By: Name: Commitment: €120,000,000 |
Credit Agreement
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LENDERS: | TD BANK, N.A., as a Lender By: Commitment: €96,000,000
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Credit Agreement
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| ING BANK N.V., DUBLIN BRANCH, as a Lender By: By: Commitment: €96,000,000
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Credit Agreement
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| SUMITOMO MITSUI BANKING CORPORATION, as a Lender By: Commitment: €96,000,000
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Credit Agreement
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| THE BANK OF NOVIA SCOTIA, as a Lender By: Commitment: €96,000,000
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Credit Agreement
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| BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY, as a Lender By: Commitment: €96,000,000
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Credit Agreement
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