1 RBC Capital Markets is a marketing name for the investment banking activities of Royal Bank of Canada |
Schedule 1 | - | Form of Borrowing Notice |
Schedule 2 | - | Form of Interest Rate Election Notice |
Schedule 3 | - | Revolving Credit Commitments/ Swing Line Lender’s Commitment/ Documentary Credit Commitments |
Schedule 4 | - | Issue Notice |
Schedule 5 | - | Notice Periods and Amounts |
Schedule 6 | - | Applicable Margins/Unused Facility Fee |
Schedule 7 | - | Form of Compliance Certificate |
Schedule 8 | - | [Intentionally omitted] |
Schedule 9 | - | Assignment and Assumption Agreement |
Schedule 10 | - | Designated Borrower Request and Assumption Agreement |
Schedule 11 | - | Designated Borrower Notice |
Schedule 12 | - | Designated Borrowers |
Schedule A | - | Jurisdiction of Incorporation; Equity Securities; Locations; Etc. |
Schedule B | - | Litigation |
Schedule C | - | Location of Business |
Schedule D | - | Trademarks/Patents, etc. |
Schedule E | - | Owned Real Property |
Schedule F | - | Subsidiaries |
Schedule G | - | Material Permits |
Schedule H | - | Material Agreements |
Schedule I | - | Environmental Matters |
Schedule J | - | Exempt Immaterial Subsidiaries |
Schedule K | - | Existing Debt/Liens/Restrictions |
Schedule L | - | Intercompany Securities/Instruments |
(a) | Debt hereunder or under any other Credit Document; |
(b) | Debt existing on the Effective Date, and set forth in Schedule K and, in case of the Term B Credit Agreement up to U.S. $250,000,000 in aggregate principal amount of “Incremental Term Facilities” permitted under the Term B Credit Agreement on the terms in effect as of the Effective Date; |
(c) | [Reserved]. |
(d) | [Reserved]. |
(e) | intercompany Debt permitted by Section 7.02(9)(b) or Section 7.02(9)(c) and intercompany Debt, payments on which are excluded from the definition of “Restricted Payments” by clause (x) or (y) thereof, which Debt shall, in each case, if owing to a Loan Party, be pledged, subject to Permitted Exceptions, to the Administrative Agent or the Collateral Agent, as applicable, under the applicable Security Agreement; |
(f) | Capital Lease Obligations in an aggregate amount of not more than U.S. $120,000,000 (or the equivalent thereof in any other currency) at any time outstanding; |
(g) | Debt secured by Purchase Money Mortgages in an aggregate amount of not more than U.S. $100,000,000 (or the equivalent thereof in any other currency) at any time outstanding; |
(h) | Debt under or in connection with customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, cash pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business or consistent with past practice; |
(i) | Debt permitted to be secured by Encumbrances described in clause (n) of “Permitted Encumbrances” whether or not so secured at any time; |
(j) | [Reserved]; |
(k) | any obligation in respect of judgments that do not result in an Event of Default under Section 8.01(1)(j); |
(l) | Refinancing Debt incurred in respect of any of the foregoing (other than clause (h) above) or Refinancing Debt in respect of clause (o) below; |
(m) | Debt consisting of letters of credit and guarantees of local bank guarantees of performance of the obligations of Subsidiaries under leases of facilities of the Loan Parties, in an aggregate amount for all such Debt not to exceed U.S. $100,000,000 at any time; |
(n) | Debt consisting of letters of credit issued to support performance obligations (not constituting Debt of the type described in clause (i) of the definition therefor) of Open Text and its Subsidiaries under service agreements or licences in the ordinary course of business; |
(o) | Debt in an unlimited amount, whether secured (including by way of Encumbrances ranking pari passu with the Encumbrances created under the Security Documents) or unsecured, provided that Open Text has demonstrated that it will be in compliance with a Consolidated Senior Secured Net Leverage Ratio of less than 2.75:1.00 on a pro forma basis at the end of the Financial Quarter immediately following the incurrence of such Debt for the Measurement Period then ended and with respect to any secured Debt, subject to intercreditor arrangements substantially in the form of the Intercreditor Agreement or otherwise satisfactory to the Administrative Agent (and customary terms of such arrangements shall be deemed to be satisfactory), and otherwise containing terms, covenants, and defaults that are not more restrictive, taken as a whole, than the terms, covenants and defaults contained in the Credit Documents; provided that if secured, unless otherwise agreed to by the Administrative Agent in its reasonable discretion, such Debt shall not be secured by any property or assets of the Loan Parties other than the Collateral; and |
(p) | Debt not otherwise permitted above in an aggregate amount not to exceed U.S. $500,000,000 at any time. |
(a) | Encumbrances for Taxes, rates, assessments or other governmental charges or levies or for employment insurance, pension obligations or other social security obligations, workers’ compensation or vacation pay, the payment of which is not yet due, or for which installments have been paid based on reasonable estimate spending final assessments, or if due, the applicable grace period has not expired or the validity of which is being contested diligently and in good faith by appropriate proceedings by that Person if either, in the case of such items being contested, (i) adequate reserves have been maintained in accordance with GAAP, if applicable or (ii) the applicable liens are not in the aggregate materially prejudicial to the value of the assets of the Loan Parties taken as a whole; |
(b) | undetermined or inchoate Encumbrances, rights of distress and charges incidental to current operations which have not at such time been filed or exercised, or which relate to obligations not due or payable or if due, the validity of which is being contested diligently and in good faith by appropriate proceedings by that Person; |
(c) | (i) reservations, limitations, provisos and conditions expressed in any original grant from any Governmental Authority or (ii) other grant of real or immovable property, or interests therein, which, in the case of this clause (ii), do not materially affect the use of the affected land for the purpose for which it is used by that Person; |
(d) | licences, permits, reservations, covenants, servitudes, easements, rights-of-way and rights in the nature of easements (including, without limiting the generality of the foregoing, licenses, easements, rights-of-way and rights in the nature of easements for sidewalks, public ways, sewers, drains, gas, steam and water mains or electric light and power, or telephone and telegraph conduits, poles, wires and cables) and zoning, land use and building restrictions, by-laws, regulations and ordinances of federal, provincial, regional, state, municipal and other governmental authorities, which do not materially impair the use of the affected land for the purpose for which it is used by that Person; |
(e) | title defects, encroachments or irregularities which in the aggregate do not materially impair the use of the affected property for the purpose for which it is used by that Person; |
(f) | the right reserved to or vested in any Governmental Authority by the terms of any lease, license, franchise, grant or permit acquired by that Person or by any statutory provision to terminate any such lease, license, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof; |
(g) | the Encumbrances resulting from the deposit or pledge of cash or securities in connection with contracts, tenders, bids, performance bonds and similar obligations or expropriation proceedings, or to secure workers’ compensation, unemployment insurance, and other social security obligations; |
(h) | the Encumbrances resulting from surety or appeal bonds, costs of litigation when required by Law, liens and claims incidental to current construction, mechanics’, warehousemen’s, carriers’ and other similar liens, and public, statutory and other like obligations incurred in the ordinary course of business; |
(i) | Encumbrances given to a public utility or any Governmental Authority when required by such utility or Governmental Authority in connection with the operations of that Person in the ordinary course of its business; |
(j) | the Encumbrances created by a judgment of a court of competent jurisdiction, as long as the judgment is being contested diligently and in good faith by appropriate proceedings by that Person and does not result in an Event of Default under Section 8.01(1)(j); |
(k) | operating leases of vehicles or equipment which are entered into in the ordinary course of the Business; |
(l) | Encumbrances securing Purchase Money Mortgages or Capital Lease Obligations permitted hereunder; |
(m) | the Encumbrances created by the Security Documents; |
(n) | Encumbrances securing indebtedness not in excess of an aggregate principal amount of U.S. $120,000,000 (or the equivalent thereof in other currencies) for all Loan Parties and their Subsidiaries relating to Assets acquired in connection with Permitted Acquisitions and Investments permitted under Section 7.02(9)(j), in each case made after the Effective Date by Loan Parties and their Subsidiaries securing debts, liabilities or obligations, in each case not assumed or incurred in contemplation of such Acquisition or Investment; |
(o) | subdivision agreements, site plan control agreements, development agreements, facilities sharing agreements, cost sharing agreements and other |
(p) | the rights of any tenant, occupant or licensee under any lease, occupancy agreement or licence which do not materially impair the use of the real property subject thereto for the purpose for which it is used by that Person; |
(q) | the Encumbrances set forth in Schedule K; provided that, subject to the Intercreditor Agreement, Encumbrances securing Debt in a principal amount of up to the sum of the Term Loans made on the Term Loan Closing Date plus the principal amounts of any “Incremental Term Facility” permitted in accordance with the terms of the Term B Credit Agreement as of the Effective Date (or any Refinancing Debt in respect thereof (subject to execution of any joinder agreement that may be required under the Intercreditor Agreement)) shall constitute Permitted Encumbrances and may rank pari passu with the Encumbrances created by the Security Documents; |
(r) | bankers’ Encumbrances, rights of setoff and other similar Encumbrances existing solely with respect to accounts and cash and cash equivalents on deposit in accounts (including any restriction on the use of such cash and cash equivalents or investment property), in each case granted in the ordinary course of business in favor of the banks or other financial or depositary institution with which such accounts are maintained, securing amounts owing to such Person with respect to cash management services (including operating account arrangements and those involving pooled accounts and netting arrangements); provided, that, unless such Encumbrances arise by operation of applicable law, in no case shall any such Encumbrances secure (either directly or indirectly) any Debt for borrowed money; |
(s) | Encumbrances or covenants restricting or prohibiting access to or from lands abutting on controlled access highways or covenants affecting the use to which lands may be put; provided, however, that such Encumbrances or covenants do not materially and adversely affect the use of the lands by the Loan Parties and their Subsidiaries; |
(t) | Encumbrances consisting of royalties payable with respect to any asset or property of the Loan Parties and their Subsidiaries, provided that the existence of any such Encumbrance as of the Effective Date on any material property or asset of the applicable Loan Party or Subsidiary shall have been disclosed in writing to the Lenders prior to the Effective Date; |
(u) | statutory Encumbrances incurred or pledges or deposits made in favour of a Governmental Authority to secure the performance of obligations of any Loan Party or any of its Subsidiaries under Environmental Laws to which any Loan Party or Subsidiary or any assets of such Loan Party or such |
(v) | Encumbrances arising from the right of distress enjoyed by landlords outside of the Province of Québec to secure the payment and performance of obligations in respect of leased properties in such provinces or an Encumbrance granted by a Loan Party or a Subsidiary of a Loan Party to a landlord to secure the payment and performance of obligations in respect of leased properties in the Province of Québec leased from such landlord, provided that such Encumbrances are limited to the assets located at or about such leased properties; |
(w) | any and all Encumbrances or title defects that do not materially and adversely interfere with the ordinary conduct of business of a Loan Party or a Subsidiary of a Loan Party, if customarily insurable at reasonable cost, and that may be insured against pursuant to one or more title insurance policies available from locally recognized insurance companies; |
(x) | Encumbrances in favour of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; |
(y) | Encumbrances in favour of a financial depositary institution arising (i) as a matter of law or (ii) to the extent that no funds are subject to a present and enforceable claim thereunder, under account establishment or maintenance agreements entered into the ordinary course of business, in each case, encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry; |
(z) | other Encumbrances expressly consented to in writing by the Majority Lenders; |
(aa) | Encumbrances (which may rank pari passu with the Encumbrances created by the Security Documents) securing Debt described in paragraph (o) of the defined term “Permitted Debt” contained in Section 1.01; |
(bb) | Encumbrances not otherwise permitted above securing obligations in an aggregate amount not to exceed U.S. $120,000,000 at any time; and |
(cc) | any extension, renewal or replacement of any of the foregoing. |
(a) | direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the Government of Canada or of any Canadian province (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the Government of Canada or of such Canadian province), in each case maturing within one year from the date of acquisition thereof; |
(b) | investments in commercial paper maturing within 270 days from the date of acquisition thereof and rated, at such date of acquisition, at least “Prime 1” (or the then equivalent grade) by Moody’s or “A” (or the then equivalent grade) by S&P or R-1 Low (or the then equivalent) by DBRS; |
(c) | investments in certificates of deposit, banker’s acceptances, commercial paper and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of Canada or of any Canadian province having, at such date of acquisition, a credit rating on its long-term unsecured debt of at least “A-” by S&P; |
(d) | fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; |
(e) | direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the Government of the United States of America or any U.S. State or territory (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the Government of the United States of America) or, in the case of any Subsidiary located outside of the United States and Canada, by any member state of the European Union, in each case maturing within one year from the date of acquisition thereof; |
(f) | investments in time deposit accounts, term deposit accounts, certificates of deposit, money-market deposits, bankers’ acceptances and obligations maturing not more than 90 days from the date of acquisition thereof issued by any bank or trust company which is organized under the laws of any member state of the European Union, and which bank or trust company has, or the obligations of which bank or trust company are guaranteed by a bank or trust company which has, capital, surplus and undivided profits in excess of U.S. $500,000,000 (or the equivalent thereof in Euros or Sterling) and has outstanding debt which is rated “A” (or such similar equivalent rating) or higher by at least one “nationally recognized statistical rating organization” (as defined in Rule 436 under the Securities Act) or by DBRS; and |
(g) | other investments to the extent permitted under the investment policy of Open Text, which investments shall be reasonably acceptable to the Administrative Agent and not objected to by the Majority Lenders within five Business Days following notice thereof, in reasonable detail, to the Lenders. |
(a) | a document that is (i) issued in bearer, order or registered form, (ii) of a type commonly dealt in upon securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment, (iii) one of a class or series or by its terms is divisible into a class or series of documents, and (iv) evidence of a share, participation or other interest in property or in any enterprise or is evidence of an obligation of the issuer and includes an uncertificated security; and |
(b) | a share, participation or other interest in a Person; |
(c) | any ULC Shares. |
Section 1.02 | Gender and Number |
Section 1.04 | Currency |
Section 1.05 | Certain Phrases, etc. |
Section 1.06 | Accounting Terms |
Section 1.07 | Non-Business Days |
Section 1.08 | Ratable Portion of Accommodations |
Section 1.09 | Incorporation of Schedules |
Section 1.10 | Control of Equity Securities |
Section 1.11 | Effectiveness of Amendment and Restatement |
Section 1.12 | Quebec Interpretation Clause |
Section 2.01 | Availability |
(1) | Each Revolving Credit Lender individually, and not jointly and severally, agrees, on the terms and conditions of this Agreement, to make Accommodations ratably to each Revolving Credit Borrower in accordance with such Lender’s Revolving Credit Commitment; provided that such Accommodations shall only be available in U.S. Dollars. The Swing Line Lender individually, and not jointly and severally, agrees, on the terms and conditions of this Agreement, to make Swing Line Advances ratably to each Revolving Credit Borrower in accordance with such Lender’s Swing Line Commitment. Upon the making of any Swing Line Advance by any Swing Line Lender, each Revolving Credit Lender shall be deemed to, and hereby irrevocably |
(2) | Accommodations under (i) the Revolving Credit Facility shall be made available as ABR Advances, LIBOR Advances and Documentary Credits and (ii) the Swing Line Commitment shall be made available as ABR Advances on the terms set forth herein. |
(3) | The failure of any Lender to make an Accommodation shall not relieve any other Lender of its obligation, if any, in connection with any such Accommodation, but no Lender is responsible for any other Lender’s failure in respect of such Accommodation. |
(4) | The Borrowers shall have the right, but not the obligation, at any time prior to the maturity of the Revolving Credit Facility, to increase the Commitments under the Revolving Credit Facility or create a new tranche of Revolving Credit Commitments in an aggregate amount not to exceed (i) U.S. $750,000,000 plus (ii) additional amounts so long as, in the case of this clause (ii), the Consolidated Senior Secured Net Leverage Ratio (determined on a pro forma basis (A) giving effect to the incurrence of such Debt and any Debt which would constitute Consolidated Net Debt for Borrowed Money that has been incurred, prepaid or repaid since the end of the most recent Measurement Period for which financial statements are available (assuming such Commitments are fully drawn but excluding any proceeds thereof from Unrestricted Cash) and (B) excluding, in the calculation of such Consolidated Senior Secured Net Leverage Ratio, any Debt concurrently incurred under the foregoing clause (i) from Consolidated Net Debt for Borrowed Money) would not exceed 2.75:1.00 (each, an “Incremental Facility”, and the advances thereunder, “Incremental Advances”); provided that, the Borrowers, in their sole discretion, may reclassify any Debt incurred under the foregoing clause (i) as having been incurred under the foregoing clause (ii) subject to compliance, at the time of such reclassification, with the requirements of such clause (ii); provided further that: |
(a) | No Event of Default exists or would exist after giving effect thereto (except in the case of an Incremental Facility used to finance a Permitted Acquisition, in which circumstances, no Default or Event of Default under Section 8.01(1)(a), Section 8.01(1)(b) or Section 8.01(1)(l) exists or would exist after giving effect thereto) and all applicable representations and warranties pursuant to Article 6 shall be true and correct in all material respects on the date of the |
(b) | Open Text will be in compliance on a pro forma basis with the financial covenant in Section 7.03 after giving effect to such Incremental Facility (assuming the Commitments thereunder are fully drawn); |
(c) | Commitments made by way of an increase to the Revolving Credit Commitment shall be on terms (including currency and Effective Yield) and conditions identical to those applicable to the then-existing Revolving Credit Facility; |
(d) | In regard to Advances and Commitments made by way of a new tranche of Revolving Credit Commitments, the Effective Yield for any Incremental Facility shall be determined by the Borrower and the Lenders of such Incremental Facility; provided that in the event that the Effective Yield applicable to any Incremental Facility incurred during the first 18 months following the Effective Date is greater than the Effective Yield for the Revolving Credit Facility, then the Effective Yield for the Revolving Credit Facility shall be increased to the extent necessary so that the Effective Yield for such Incremental Facility is not more than 50 basis points higher than the Effective Yield for the Revolving Credit Facility unless the Applicable Margins for the Revolving Credit Facility are increased by an amount equal to the difference between the Effective Yield for such Incremental Facility and the corresponding Effective Yield for the Revolving Credit Facility minus 50 basis points; |
(e) | Such increased amounts will be provided by the existing Lenders or new financial institutions that become Lenders under the Incremental Facility (such new financial institutions to be reasonably satisfactory to the Administrative Agent and, if Swing Line Advances will be made or Documentary Credits will be issued under the Facility to which such Lender will be a party (including any Lender who is party to an increase in the Revolving Credit Facility), the Swing Line Lender and the Documentary Credit Lender), provided that no existing Lender will be obligated to provide any such Incremental Facility; |
(f) | The Advances and Commitments under any Incremental Facility will not in any event have a maturity date that is earlier than the Relevant Repayment Date of the then existing Revolving Credit Facility; provided that Advances and Commitments made by way of a new tranche of Revolving Credit Commitments shall be on terms and conditions otherwise substantially similar to those applicable to the then-existing Revolving Credit Facility and, |
(g) | Upon the implementation of any Incremental Facility by way of an increase to the Commitments under the Revolving Credit Facility pursuant to this Section 2.01(4), (i) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Credit Lender providing a portion of such Incremental Facility (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Credit Lender’s participations hereunder in outstanding Documentary Credits and Swing Line Advances such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Documentary Credits and (B) participations hereunder in Swing Line Advances held by each Revolving Credit Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Lenders represented by such Revolving Credit Lender’s Incremental Commitment and (ii) if, on the date of such increase, there are any Advances outstanding, such Advances shall on or prior to the effectiveness of such Incremental Facility be prepaid from the proceeds of additional Incremental Advances made hereunder (reflecting such Incremental Facility), which prepayment shall be accompanied by accrued interest on the Advances being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Credit Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. |
(h) | At no time shall there be more than three separate tranches of revolving facilities hereunder (including Incremental Facilities). |
(i) | The Administrative Agent shall have received such other corporate authorizations, opinions, or documents as the Administrative Agent may reasonably request. |
(5) | Notwithstanding anything to the contrary in this Agreement, if there are any Material Owned Real Properties subject to a Debenture (any such property, a “Mortgaged Property”), any increase or extension (including a renewal) of any of the Commitments or Loans (including the provision of Incremental Advances or any other incremental credit facilities hereunder, but excluding (i) any continuation or conversion of borrowings, (ii) the making of any Revolving Credit Loans or (iii) the issuance, renewal or extension of Documentary Credits) shall be subject to (and |
Section 2.02 | Commitments and Facility Limits |
(1) | The Accommodations Outstanding: |
(a) | owing to all Revolving Credit Lenders shall not at any time exceed the Revolving Credit Commitment, and owing to each Revolving Credit Lender shall not at any time exceed such Lender’s Revolving Credit Commitment; |
(b) | owing to any Swing Line Lender shall not, at any time, exceed the Swing Line Commitment of such Swing Line Lender; and |
(c) | owing to all Documentary Credit Lenders shall not, at any time, exceed the Documentary Credit Commitment and owing to each Documentary Credit Lender shall not, at any time, exceed such Lender’s Documentary Credit Commitment. |
(2) | The Revolving Credit Facility shall revolve and, except as otherwise provided herein, no payment under the Revolving Credit Facility shall reduce the Revolving Credit Commitments. Swing Line Advances shall be available on a revolving basis and, except as otherwise provided herein, no payment of Swing Line Advances shall reduce the Swing Line Commitment. |
(3) | A conversion from one Type of Accommodation to another Type of Accommodation shall not constitute a repayment or prepayment. |
Section 2.03 | Designated Borrowers |
(1) | The Subsidiaries listed on Schedule 12 (effective as of the Effective Date), Open Text and such other Subsidiaries of Open Text as may be reasonably acceptable to the Administrative Agent and the Lenders under the Revolving Credit Facility or Incremental Facilities (subject to the provisions of this Section 2.03), shall be “Designated Borrowers” hereunder and may receive Advances for their respective accounts on the terms and conditions set forth in this Agreement; provided that it shall be reasonably acceptable for the Administrative Agent or Lenders to not consent to any Designated Borrower that is not incorporated in the United States or Canada. |
(2) | Open Text may at any time, upon not less than 15 Business Days’ notice to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate itself and any additional Subsidiary (an “Applicant Borrower”) to receive Accommodations under the Revolving Credit |
(3) | Each Subsidiary that is or becomes a Designated Borrower pursuant to this Section 2.03 hereby irrevocably appoints Open Text as its agent for all purposes relevant to this Agreement and each of the other Credit Documents, including (i) the giving and receipt of notices (including delivery of any Borrowing Notice to the Administrative Agent) and (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto. Any notice, demand, consent, acknowledgment, direction, certification or other communication delivered to Open Text in accordance with the terms of this Agreement shall be deemed to have been delivered to each Designated Borrower. For the avoidance of doubt, any Subsidiary that becomes a Designated Borrower after the Effective Date pursuant to this Section 2.03 may not deliver a Borrowing Notice to the Administrative Agent, |
(4) | Open Text may from time to time, upon not less than 15 Business Days’ notice from Open Text to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided that there are no outstanding Accommodations payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Accommodations made to it, in each case, as of the effective date of such termination, unless, in the case of any outstanding Documentary Credits, on or prior to such effective date of termination, the applicable Designated Borrower shall have paid to the Administrative Agent for the account of each applicable Lender an amount in same day funds equal to the sum of the amount to be drawn or which may be drawn, as the case may be, by any Beneficiary in the currency in which any Documentary Credit issued by such Lender for the account of such Borrower is payable, to be held as cash collateral in respect of Designated Borrower’s obligations for such Documentary Credits; provided that the Administrative Agent may apply any or all of such cash and cash collateral to the payment of any or all of such Designated Borrower’s obligations in respect of such Documentary Credits as such obligations become due and, pending such application, the Administrative Agent may (but shall not be obligated to) invest the same in an interest bearing account in the Administrative Agent’s name, for the ratable benefit of itself and the applicable Lenders, at such bank or financial institution as the Administrative Agent may, in its discretion, select; provided further, that if such Designated Borrower is also a Guarantor, such termination will not affect such Designated Borrower’s obligations as a Guarantor under the Guarantee. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status. |
Section 2.04 | Use of Proceeds |
(1) | The Revolving Credit Borrowers shall use the proceeds of any Accommodations under the Revolving Credit Facility to fund working capital and general corporate purposes (including Capital Expenditures, Permitted Acquisitions and Permitted Investments) on a fully revolving basis. |
(2) | No Swing Line Advances shall be used for the purpose of funding the repayment of principal of any other Swing Line Advance. |
Section 2.05 | Mandatory Repayments and Reductions of Commitments |
(1) | Each Revolving Credit Borrower shall repay (subject to Section 8.01) the Accommodations Outstanding made to such Borrower under the Revolving Credit |
(2) | Each Revolving Credit Borrower shall repay (subject to Section 8.01), with notice to the Administrative Agent of such repayment, each Swing Line Advance made to such Borrower upon the earlier of the seventh day following the making of such Advance and the Relevant Repayment Date in respect of the Revolving Credit Facility. The Swing Line Commitment shall be permanently reduced from time to time on the date of each reduction of the Revolving Credit Facility by the amount, if any, by which the amount of the Swing Line Commitment exceeds the Revolving Credit Commitments after giving effect to any such reduction of the Revolving Credit Facility. |
(3) | On the date of any prepayment pursuant to Section 2.06(2), the Revolving Credit Commitments of each Lender so prepaid shall be reduced to zero. |
Section 2.06 | Mandatory Prepayments |
(1) | If, as of the last day of each month or, if an Event of Default has occurred and is continuing, on any day, the Accommodations Outstanding under the Revolving Credit Facility exceed 100% of the applicable Revolving Credit Commitment by reason of exchange rate fluctuations or otherwise, the applicable Revolving Credit Borrower or Revolving Credit Borrowers shall, on the first Business Day following such day, repay ABR Advances or LIBOR Advances in the manner set forth in Section 2.07 (but without regard to the minimum amounts specified therein), as the case may be, such that the Accommodations Outstanding under the Revolving Credit Facility, after giving effect thereto, do not exceed the Commitment thereunder. |
(2) | The Borrowers shall be required to offer to prepay all Accommodations Outstanding upon the occurrence of a Change of Control, which offer shall be at 100% of the principal amount of the Accommodations Outstanding, plus, in each case, any accrued and unpaid interest, such prepayment to be applied in accordance with Sections 2.09 and 2.10. Any Lender accepting such offer shall be prepaid in full; provided that if the Majority Lenders shall have accepted such offer, then all Lenders shall be deemed to have accepted such offer and the Borrowers shall prepay all outstanding amounts under the Facilities (including the principal amount of all Accommodations Outstanding plus any accrued and unpaid interest and fees but excluding any Documentary Credit obligations, which have been cash collateralized at the time of any such prepayment in accordance with Section 2.13), with such prepayments to be applied in accordance with Sections 2.09 and 2.10. |
Section 2.07 | Optional Prepayments and Reductions of Commitments |
Section 2.08 | Fees |
(1) | The Revolving Credit Borrowers, in respect of the Revolving Credit Facility, shall pay to the Administrative Agent for the ratable benefit of the Revolving Credit Lenders, commencing on the Effective Date to but excluding the latest Relevant Repayment Date in respect of the Revolving Credit Facility, a Facility Fee (as set forth in Schedule 6) calculated on the undrawn amount of Revolving Credit Commitments at such time; provided that, for purpose of calculations under this Section 2.08(1), Swing Line Advances shall not be considered usage. All Facility Fees will be payable in arrears at the end of each Financial Quarter and upon any termination of any Revolving Credit Commitment, in each case for the actual number of days elapsed over a 365 or 366 day year, as the case may be. |
(2) | Open Text shall pay an annual administrative fee to the Administrative Agent in an amount as agreed to by Open Text and the Administrative Agent. |
Section 2.09 | Payments under this Agreement |
(1) | Unless otherwise expressly provided in this Agreement, the applicable Borrower shall make any payment required to be made by it to the Administrative Agent or any Lender by depositing the amount of the payment in the relevant currency to the relevant Borrower’s Account not later than 10:00 a.m. (New York time) on the date the payment is due. The applicable Borrower shall make each such payment (i) in U.S. Dollars; and (ii) except as specifically otherwise provided, in the Equivalent U.S. $ Amount, if the Accommodation was originally made in any other currency. In respect of the Revolving Credit Facility, the Administrative Agent shall distribute to each applicable Lender, promptly on the date of receipt by the Administrative Agent of any payment, an amount equal to the amount then due each such Lender. |
(2) | Unless otherwise expressly provided in this Agreement, the Administrative Agent shall make Accommodations under the Revolving Credit Facility and other payments to the applicable Borrower under this Agreement by crediting the applicable Borrower’s Account (or causing the applicable Borrower’s Account to be credited) with, or by wire transferring to such account(s) as may be directed by the applicable Borrower, the amount of the payment not later than 2:00 p.m. (New York time) on the date the payment is to be made. |
(3) | Each Swing Line Lender shall make Swing Line Advances to the applicable Borrower by crediting the applicable Revolving Credit Borrower’s Account with the |
(4) | Each Borrower hereby authorizes each Lender, if and to the extent any payment owed to such Lender by such Borrower is not made to the Administrative Agent when due, to charge from time to time any amount due against any or all of such Borrower’s accounts with such Lender upon notice to such Borrower. |
Section 2.10 | Application of Payments and Prepayments |
(1) | All amounts received by the Administrative Agent from or on behalf of a Borrower and not previously applied pursuant to this Agreement shall be applied by the Administrative Agent as follows (i) first, in reduction of such Borrower’s obligation to pay any unpaid interest and any Fees which are due and owing; (ii) second, in reduction of such Borrower’s obligation to pay any claims or losses referred to in Section 15.01; (iii) third, in reduction of such Borrower’s obligation to pay any amounts due and owing on account of any unpaid principal amount of Advances and Obligations arising under Eligible Cash Management Agreements and Eligible Hedging Agreements, in each case, which are due and owing; provided that notwithstanding the foregoing, Obligations arising under Eligible Cash Management Agreements and Eligible Hedging Agreements shall be excluded from any such application if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Lender, as the case may be; (iv) fourth, in reduction of such Borrower’s obligation to pay any other unpaid Accommodations Outstanding which are due and owing; (v) fifth, in reduction of any other obligation of such Borrower under this Agreement and the other Credit Documents; and (vi) sixth, to Cash Collateralize the then Accommodations Outstanding in respect of all Documentary Credits made to such Borrower; and (vii) seventh, to such Borrower or such other Persons as may lawfully be entitled to or directed by such Borrower to receive the remainder. |
Section 2.11 | Computations of Interest and Fees |
(1) | All computations of interest shall be made by the Administrative Agent taking into account the actual number of days occurring in the period for which such interest is payable pursuant to Section 3.05, and (i) if based on the ABR Rate, a year of 365 days or 366 days, as the case may be; or (ii) if based on the Eurodollar Rate, on the basis of a year of 360 days. |
(2) | All computations of Fees shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, taking into account the actual number of days (including the first day but excluding the last day) occurring in the period for which such fees are payable. |
(3) | For purposes of the Interest Act (Canada), (i) whenever any interest or Fee under this Agreement is calculated using a rate based on a number of days less than a full year, such rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the applicable rate, (y) multiplied by the actual number of days in the calendar year in which the period for which such interest or fee is payable (or compounded) ends, and (z) divided by the number of days comprising such calculation basis; (ii) the principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement; and (iii) the rates of interest stipulated in this Agreement are intended to be nominal rates and not effective rates or yields. |
(4) | If any provision of this Agreement or of any of the other Credit Documents would obligate a Loan Party to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited by Law or would result in a receipt by such Lender of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada)) then, notwithstanding such provisions, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by Law or so result in a receipt by such Lender of interest at a criminal rate, such adjustment to be effected, to the extent necessary, as follows: (1) firstly, by reducing the amount or rate of interest required to be paid to such Lender under the applicable Credit Document, and (2) thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid to such Lender which would constitute “interest” for purposes of Section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if a Lender shall have received an amount in excess of the maximum permitted by that section of the Criminal Code (Canada), the Loan Party paying the amount shall be entitled, by notice in writing to such Lender, to obtain reimbursement from such Lender in an amount equal to such excess and, pending such reimbursement, such amount shall be deemed to be an amount payable by such Lender to any Borrower or Guarantor. Any amount or rate of interest referred to in this Section 2.11(4) shall be determined in accordance with generally accepted actuarial practices and principles and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Administrative Agent shall be conclusive for the purposes of such determination. |
(5) | Each of the Loan Parties confirms that it fully understands and is able to calculate the rate of interest applicable to each of the Facilities based on the methodology for calculating per annum rates provided for in this Section 2.11. The relevant Administrative Agent agrees that if requested in writing by the Borrowers it shall calculate the nominal and effective per annum rate of interest on any Accommodations Outstanding at any time and provide such information to the Borrowers promptly following such request; provided that any error in any such calculation, or any failure to provide such information on request, shall not relieve the Borrowers or any other Loan Party of any of its obligations under this Agreement |
Section 2.12 | Security |
(1) | In each case, subject to Permitted Exceptions, by the applicable dates specified below, the Borrowers shall provide, or cause to be provided by the Guarantors, in each case, to the Administrative Agent, for and on behalf of the Lenders, as continuing collateral security for the present and future indebtedness and liability of the Borrowers and the obligations of the Guarantors under the Guarantees, respectively, to the Administrative Agent and the Lenders hereunder and under the other Credit Documents, the following security (the “Security”), in form and substance satisfactory to the Administrative Agent, acting reasonably, together with any relevant reasonably required power of attorney, registrations, filings and other supporting documentation deemed necessary by the Administrative Agent or its counsel to perfect the same or otherwise in respect thereof: |
(a) | a Guarantee, which guarantees shall be reaffirmed as of the Effective Date pursuant to Section 23.01; |
(b) | general security agreements (which, for greater certainty, shall not include a hypothec with respect to moveable property located in the Province of Québec) dated as of the Original Closing Date or thereafter if such Person became a Loan Party thereafter, and reaffirmed as of the Effective Date pursuant to Section 23.01, constituting a security interest in all personal property (or moveable property, as applicable) and assets of the Loan Parties (including all contract rights, inventory, accounts, general intangibles, Equity Securities, deposit accounts, trademarks, trade names, other intellectual property, equipment and proceeds of the foregoing), which security interest shall be of first priority, subject, if and to the extent applicable, to any Permitted Encumbrances (each being a “Security Agreement”), and subject to the grace periods specified in each Security Agreement and in connection with deposit accounts, Section 7.01(15)(c), with respect to items of Collateral that cannot be perfected by the filing of a PPSA or UCC financing statement; and |
(c) | within 60 days following the acquisition of any Material Owned Real Property, debentures, mortgages, deeds of trust or deeds to secure debt (or immoveable hypothec, as applicable) constituting a charge on such real property (or immoveable property, as applicable) of the Loan Parties (as determined by the Administrative Agent), which charge shall be a first |
(2) | Subject to Permitted Exceptions, Open Text will from time to time at its expense duly authorize, execute and deliver (or cause the applicable Loan Party to authorize, execute and deliver) to the Administrative Agent such further instruments and documents and take such further action as the Administrative Agent may reasonably request for the purpose of obtaining or preserving the full benefits granted or intended to be granted to the Administrative Agent, or any Lender or the Collateral Agent by the Credit Documents and of the rights and remedies therein granted to the Administrative Agent, or any Lender or the Collateral Agent, including the filing of financing statements or other documents under any Law with respect to the Encumbrances created thereby. The Loan Parties acknowledge that the Credit Documents have been prepared on the basis of Law in effect on the Effective Date, and that changes to Law may require the execution and delivery of different forms of documentation, and accordingly the Administrative Agent shall have the right (acting reasonably) to require that the Credit Documents be amended, supplemented or replaced (and Open Text shall, or shall cause the applicable Loan Party to duly authorize, execute and deliver to the Administrative Agent any such amendment, supplement or replacement reasonably requested by the Administrative Agent with respect to any of the Credit Documents) within 30 days of written request therefor (i) to reflect any change in Law, whether arising as a result of statutory amendments, court decisions or otherwise; (ii) to facilitate the creation and registration of appropriate forms of security in applicable jurisdictions; or (iii) to confer upon the Administrative Agent Encumbrances similar to the Encumbrances created or intended to be created by the Credit Documents. Without limiting the generality of this Section 2.12(2), the Loan Parties agree that if any such actions shall be required under applicable law as a result of the amendment and restatement of the Existing Credit Agreement into the form of this Agreement on the Effective Date, they shall promptly, or shall cause the applicable Loan Party to promptly, duly authorize, execute and deliver to the Administrative Agent any such amendment, supplement or replacement reasonably requested by the Administrative Agent with respect to any of the Credit Documents. |
(3) | With respect to each Mortgaged Property that is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” with respect to which flood insurance has been made available under Flood Insurance Laws, the applicable Loan Party (A) will maintain, with financially sound and reputable insurance companies, such flood insurance in such total amount as the Administrative Agent and Lenders may from time to time reasonably require to the extent customarily maintained by similar businesses operating in the same or similar locations, and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (B) promptly upon request of the Administrative Agent on behalf of any Lender, will deliver to the Administrative Agent evidence of such compliance in |
(4) | (a) Notwithstanding anything to the contrary in Section 2.12(1)(d) (including the time period set forth therein) or this Agreement to the contrary, the Administrative Agent shall not enter into any Debenture in respect of any Material Owned Real Property acquired by any Borrower or any other Loan Party after the Closing Date until the Administrative Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to be unreasonably conditioned, withheld or delayed). If the Lenders have not informed the Administrative Agent and Open Text of any outstanding flood diligence requirements by the date that is forty (45) days after the date on which the Administrative Agent made available to the Lenders (which may be delivered electronically) the following documents in respect of such real property (which documents shall be delivered by the Administrative Agent to the Lenders promptly after receipt thereof): (i) a completed flood hazard determination from a third party vendor; (ii) if such Material Owned Real Property is located in a “special flood hazard area,” (A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Party of such notice; and (iii) if such notice is required to be provided to the applicable Loan Party and flood insurance is available in the community in which such Material Owned Real Property is located, evidence of required flood insurance with respect to any such Mortgage, the Lenders will be deemed to have completed their flood insurance due diligence and flood insurance compliance and to have consented to such Debenture. Notwithstanding anything to the contrary in this Section 2.12 or this Agreement, in respect of any Material Owned Real Property subject to Section 2.12(1)(d), the time period set forth in Section 2.12(1)(d) for delivery of any related Debenture shall be automatically extended to the date on which the Administrative Agent is permitted under this Section 2.12(4)(a) to enter into such Debenture. |
Section 2.13 | Cash Collateral |
(1) | Upon the request of the Administrative Agent or the Documentary Credit Lender, if, as of the Relevant Repayment Date in respect of the Revolving Credit Facility, any Documentary Credit obligation for any reason remains outstanding, the |
(2) | All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at the Administrative Agent. The Borrowers, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the Documentary Credit Lender and the Lenders (including the Swing Line Lender), and agrees to create and agrees that the Administrative Agent may maintain, a first priority security interest (other than an Encumbrance of the type described in (i) clause (a) of the definition of “Permitted Encumbrances” arising solely by operation of law and for which payment is not yet due or (ii) clause (y) of the definition of “Permitted Encumbrances”) in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to this Section 2.13. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided (other than an Encumbrance of the type described in (i) clause (a) of the definition of “Permitted Encumbrances” arising solely by operation of law and for which payment is not yet due or (ii) clause (y) of the definition of “Permitted Encumbrances”) or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the applicable Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. |
(3) | Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided hereunder in respect of Documentary Credits or Swing Line Advances shall be held and applied to the satisfaction of the specific Documentary Credit obligations or Swing Line Advances, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein. |
(4) | Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as |
Section 2.14 | Defaulting Lenders |
(1) | Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law: |
(a) | That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 17.01(5). |
(b) | Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 11.01), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the Documentary Credit Lender or Swing Line Lender hereunder; third, if so reasonably determined by the Administrative Agent or reasonably requested by the Documentary Credit Lender or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Documentary Credit or Swing Line Loan; fourth, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Borrowing in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrowers, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Borrowings under this Agreement and to Cash Collateralize future Funding Exposure with respect to such Defaulting Lender; sixth, to the payment of any amounts owing to the Lenders, the Documentary Credit Lender or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Documentary Credit Lender or Swing Line Lender against that Defaulting |
(c) | That Defaulting Lender shall not be entitled to receive any fee hereunder for any period during which that Lender is a Defaulting Lender (and the applicable Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to the Defaulting Lenders). |
(d) | During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Documentary Credits or Swing Line Advances pursuant to Section 3.06, the ratable share of each non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided, that: (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists and the representations and warranties contained in Article 6 are true and correct in all material respects on and as of such date, all as though made on and as of such date except any representation and warranty which is stated to be made as of a certain date (and then as of such date); and (ii) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Documentary Credits and Swing Line Advances shall not exceed the positive difference, if any, of (1) the Revolving Credit Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Revolving Credit Advances of that Lender. If the amount of the obligation of a non-Defaulting Lender to acquire, refinance or fund participations in Documentary Credits and Swing Line Advances is reallocated pursuant to this clause (d), then the fees payable to the Lenders pursuant to Section |
(2) | If the applicable Borrower, the Administrative Agent, the Swing Line Lender and the Documentary Credit Lender agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Revolving Credit Borrowings of the other Lenders or take such other actions as the Administrative Agent may reasonably determine to be necessary to cause the Borrowings and funded and unfunded participations in Documentary Credits and Swing Line Advances to be held on a pro rata basis by the Lenders in accordance with their ratable shares (without giving effect to Section 2.14(1)), whereupon that Lender will cease to be a Defaulting Lender; provided that, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender. |
Section 3.01 | The Advances |
Section 3.02 | Procedure for Borrowing. |
Section 3.03 | Conversions and Elections Regarding Advances |
(1) | Each Advance shall initially be the Type of Advance specified in the applicable Borrowing Notice and shall bear interest at the rate applicable to such Type of Advance (determined as provided in Section 3.05) until (i) in the case of a LIBOR Advance the end of the initial Interest Period applicable thereto as specified in the applicable Borrowing Notice, (ii) in the case of an ABR Advance, the date on which the relevant Type of Advance is repaid in full or is changed to another Type of Advance pursuant to and to the extent permitted by Section 3.03(2), or (iii) in the case of any Advance, it is converted to another Type of Advance pursuant to and to the extent permitted by Section 3.03(2). |
(2) | The applicable Borrower may, in respect of the Revolving Credit Facility, elect to (i) change any Advance (other than a Swing Line Advance) outstanding thereunder to another Type of Accommodation available thereunder in accordance with Section 3.03(3), (x) in the case of an ABR Advance, as of any Business Day, or (y) in the case of a LIBOR Advance, as of the last day of the Interest Period applicable to such LIBOR Advance; or (ii) continue any LIBOR Advance for a further Interest Period, beginning on the last day of the then current Interest Period, in accordance with Section 3.03(3). |
(3) | Each election to change from one Type of Advance to another Type of Advance under the Revolving Credit Facility or to continue a LIBOR Advance for a further Interest Period shall be made on the number of days prior notice specified in Schedule 5 given, in each case, not later than 12:00 p.m. (New York time) by the applicable Borrower to the Administrative Agent. Each such notice (an “Interest Rate Election Notice”) shall be given substantially in the form of Schedule 2 and shall be irrevocable and binding upon the applicable Borrower. If the applicable Borrower fails to deliver an Interest Rate Election Notice to the Administrative Agent for any LIBOR Advance as provided in this Section 3.03(3), such LIBOR Advance shall be converted (as of the last day of the applicable Interest Period) to and thereafter shall be outstanding as an ABR Advance in respect of the applicable Borrower. The Borrowers shall not select an Interest Period which conflicts with the definition of |
(4) | Upon the occurrence of, and during the continuance of, an Event of Default, the Borrowers shall not have the right to convert Advances into, or to continue, LIBOR Advances, and each LIBOR Advance shall convert to an ABR Advance at the end of the applicable Interest Period. |
Section 3.04 | Circumstances Requiring Floating Rate Pricing |
(1) | If a Lender determines acting reasonably in good faith and notifies Open Text in writing and the Administrative Agent that (i) by reason of circumstances affecting financial markets inside or outside Canada, deposits of U.S. Dollars are unavailable to such Lender; (ii) adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided in the definition of Eurodollar Rate; (iii) the making or continuation of any LIBOR Advances has been made impracticable (x) by the occurrence of a contingency (other than a mere increase in rates payable by such Lender to fund the Advances or a decrease in the creditworthiness of such Lender) which adversely affects the funding of the Revolving Credit Facility at any interest rate computed on the basis of the Eurodollar Rate, or (y) by reason of a change since the date of this Agreement in any Law or in the interpretation thereof by any Governmental Authority which affects such Lender or any relevant financial market and which results in the Eurodollar Rate no longer representing the effective cost to such Lender of deposits in such market; or (iv) any change to any Law or in the interpretation or application thereof by any Governmental Authority, has made it unlawful for such Lender to make or maintain or to give effect to its obligations in respect of such Advances as contemplated hereby, then, |
(a) | the right of a Borrower to select LIBOR Advances, as the case may be, from such Lender shall be suspended until such Lender determines acting reasonably and in good faith that the circumstances causing the suspension no longer exist and such Lender so notifies the Administrative Agent; |
(b) | if any affected LIBOR Advance is not yet outstanding, any applicable Borrowing Notice shall be suspended until such Lender acting reasonably and in good faith determines that the circumstances causing such suspension no longer exist and such Lender so notifies the Administrative Agent; and |
(c) | if any LIBOR Advance is already outstanding at any time when the right of the applicable Borrower to select LIBOR Advances is suspended, it and all other LIBOR Advances in the same Borrowing with respect to such Lender shall (subject to applicable Borrower having the right to select the relevant Type of Advance at such time) become an ABR Advance on the last day of the then current Interest Period applicable thereto (or on such earlier date as may be required to comply with any Law). |
(2) | The Administrative Agent shall promptly notify Open Text of the suspension of its right to request a LIBOR Advance from such Lender and of the termination of any such suspension. Upon notice from the Administrative Agent of the suspension of the right to request a LIBOR Advance from such Lender, Open Text may (i) either replace such Lender with a substitute Lender or Lenders, in which event such Lender shall execute and deliver an assignment and assumption agreement in favour of such substitute Lender or Lenders pursuant to Section 16.01(2)(e) in respect of the whole of its Commitments; or (ii) prepay all Accommodations Outstanding of such affected Lender and thereupon reduce such affected Lender’s Commitments to nil, all without affecting the Commitments of any other Lenders. |
(3) | If, at any time, the Administrative Agent determines in its reasonable discretion that (a) the circumstances set forth in Section 3.04(1)(ii) have arisen and such circumstances are unlikely to be temporary or (b) the circumstances set forth in Section 3.04(1)(ii) have not arisen but the UK Financial Conduct Authority (or any successor regulatory body), any other supervisor for the administrator of the LIBO Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which “LIBOR” shall no longer be used for determining interest rates for loans or as a benchmark reference rate for interest rates for loans, the Administrative Agent and the Borrowers shall endeavor to establish an alternate rate of interest to the Eurodollar Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time and shall not be less than zero percent (0%) (any such rate, an “Alternate Rate of Interest”), and shall enter into an amendment to this Agreement to reflect such Alternate Rate of Interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 17.01, such amendment shall become effective without any further action or consent of any other party to this Agreement. so long as the Administrative Agent shall not have received, within five (5) Business Days, of the date notice of such Alternate Rate of Interest and a copy of such proposed amendment is provided to the Lenders, a written notice from the Majority Lenders stating that such Majority Lenders object to such amendment. Until an Alternate Rate of Interest shall be determined in accordance with this Section 3.04(3) (but, in the case of the circumstances described in clause (b) of the first sentence of this Section 3.04(3), only to the extent the LIBO Rate for such Interest Period is not available or published at such time on a current basis), (i) any request for a conversion to, or continuation of, LIBOR Advances shall be ineffective and (ii) any request for a LIBOR Advance shall be made as an ABR Advance in the amount specified therein. |
Section 3.05 | Interest on Advances |
(1) | ABR Advances. If and so long as such Advance is an ABR Advance and subject to clause (3) below, at a rate per annum equal at all times to the ABR Rate in effect from time to time plus the Applicable Margin, calculated daily and payable in arrears (i) on the first Business Day of each Financial Quarter in each Financial Year; and (ii) when such ABR Advance becomes due and payable in full pursuant to the provisions hereof. |
(2) | LIBOR Advances. If and so long as such Advance is a LIBOR Advance and subject to clause (3) below, at a rate per annum equal, at all times during each Interest Period for such LIBOR Advance, to the sum of the Eurodollar Rate for such Interest Period plus the Applicable Margin payable on the earliest of (i) if the Interest Period is longer than 3 months, every 3 months after the date of the relevant LIBOR Advance; (ii) on the last day of such Interest Period; and (iii) when such LIBOR Advance becomes due and payable in full pursuant to the provisions hereof. |
(3) | Default Interest. Upon the occurrence and during the continuance of an Event of Default, subject to Law, the Borrowers shall pay interest on their respective obligations in respect of the Revolving Credit Facility (“Default Interest”) on (i) the unpaid principal amount of each Accommodation Outstanding to each Lender, payable in arrears on the dates referred to in clause (1) or (2) above, as applicable, and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Advance pursuant to clause (1) or (2) above, as applicable, and (ii) the amount of any interest, fee or other amount payable under this Agreement or any other Credit Document to the Administrative Agent or any Lender that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid, in the case of interest, and, in all other cases, on ABR Advances pursuant to clause (1) above. |
Section 3.06 | Swing Line Advances |
(1) | Each Swing Line Advance shall be in a minimum amount of U.S. $500,000 and in an integral multiple of U.S. $100,000, shall bear interest at the ABR Rate and shall be made upon notice given not later than 10:00 a.m. (New York time) by the applicable Revolving Credit Borrower to the Administrative Agent and the applicable Swing Line Lender. Each notice of a Swing Line Advance shall be in substantially the form of Schedule 1, shall be irrevocable and binding on the applicable Revolving Credit Borrower once given by it to the Administrative Agent and the applicable Swing Line Lender, and shall specify (i) the date of the Swing |
(2) | Each Swing Line Lender may, at any time in its sole and absolute discretion, request on behalf of the applicable Revolving Credit Borrower (and such Revolving Credit Borrower hereby irrevocably authorizes each Swing Line Lender to so request on its behalf), upon notice to the Administrative Agent by such Swing Line Lender no later than 10 a.m. (New York time) on the applicable date, that each Revolving Credit Lender make an ABR Advance in an amount equal to such Revolving Credit Lender’s pro rata share of the amount of Swing Line Advances made by such Swing Line Lender then outstanding. Such request shall be deemed to be a Borrowing Notice for purposes hereof and shall be made in accordance with the provisions of Section 3.02(1) without regard solely to the minimum amounts specified therein but subject to the satisfaction of the conditions set forth in Section 5.02 (except that the applicable Revolving Credit Borrower shall not be deemed to have made any representations and warranties). |
(3) | If for any reason any Swing Line Advance cannot be refinanced by a Borrowing as contemplated by Section 3.06(2), the request for ABR Advances, as the case may be, submitted by the Swing Line Lender as set forth in Section 3.06(2) shall be deemed to be a request by such Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant Swing Line Advance and each Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 3.06(2) shall be deemed payment in respect of such participation. |
(4) | If and to the extent that any Revolving Credit Lender shall not have made the amount of its pro rata share of such Swing Line Advance available to the Administrative Agent in accordance with the provisions of Section 3.06(2), such Revolving Credit Lender agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date of the applicable Borrowing Notice delivered by the Swing Line Lender until the date such amount is paid to the Administrative Agent, for the account of the applicable Swing Line Lender, at the Federal Funds Effective Rate. |
(5) | Each Revolving Credit Lender’s obligation to make ABR Advances or to purchase and fund risk participations in a Swing Line Advance pursuant to this Section 3.06 shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any set-off, counterclaim, recoupment, defence or other right which such Revolving Credit Lender may have against the Swing Line Lender, the applicable Revolving Credit Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default, or (iii) any other |
Section 4.01 | Documentary Credits |
Section 4.02 | Issue Notice |
(1) | Each Issue shall be made on notice (an “Issue Notice”) given by the applicable Documentary Credit Borrower to the Administrative Agent and the Documentary Credit Lender from which such Documentary Credit Borrower is requesting the issuance of a Documentary Credit not later than 12:00 p.m. (New York time) on the number of days’ notice specified in Schedule 5. The Issue Notice shall be in substantially the form of Schedule 4, shall be irrevocable and binding on the applicable Documentary Credit Borrower once given by it to the Administrative Agent and such Documentary Credit Lender, and shall specify (i) the requested date of Issue (the “Issue Date”); (ii) the Type of Documentary Credit; (iii) the Face Amount and currency of the Documentary Credit; (iv) the expiration date of the Documentary Credit; and (v) the name and address of the Beneficiary. |
(2) | Each applicable Documentary Credit Borrower shall repay, and there shall become due and payable on the Issue Date, the principal amount of any Accommodations Outstanding made to such Borrower which are to be converted in whole or in part, to Documentary Credits, and interest and all other amounts payable in respect thereof, all as if such conversion were a prepayment of such Advances pursuant to Article 2. |
Section 4.03 | Form of Documentary Credits |
Section 4.04 | Documentary Credit Reports |
Section 4.05 | Procedure for Issuance of Documentary Credits |
(1) | On any applicable Issue Date, the issuing Documentary Credit Lender will complete and issue an appropriate Type of Documentary Credit (i) dated the Issue Date; (ii) in favour of the Beneficiary; (iii) in a Face Amount and currency equal to the amount referred to in Section 4.02(1); and (iv) with the maturity date as specified by the applicable Borrower in its Issue Notice. |
(2) | No Documentary Credit shall require payment against a conforming draft to be made hereunder on the same Business Day upon which such draft is presented, if such presentation is made after 10:00 a.m. (New York time) on such Business Day. |
(3) | Prior to the Issue Date, the applicable Documentary Credit Borrower shall specify precise description of the documents and the verbatim text of any certificates or the form of any documents to be presented by the Beneficiary which, if presented by the Beneficiary, would require the issuing Documentary Credit Lender to make payment under the Documentary Credit. The issuing Documentary Credit Lender may, before the issue of the Documentary Credit and in consultation with the applicable Documentary Credit Borrower, require changes in any such document or certificate. |
Section 4.06 | Payments of Amounts Drawn |
(1) | On the Business Day of a drawing, the Documentary Credit Lender shall notify the Documentary Credit Borrower and the Administrative Agent of such drawing. Within one Business Day following the date of such drawing under a Documentary Credit, the applicable Documentary Credit Borrower shall pay to such Documentary Credit Lender an amount in same day funds equal to the amount so drawn in the currency in which such Documentary Credit is payable. |
(2) | If the applicable Documentary Credit Borrower fails to pay to the applicable Documentary Credit Lender an amount, in same day funds, equal to the amount of such drawing, then (i) such Documentary Credit Lender shall so notify the Administrative Agent, (ii) such Borrower shall be deemed to have given a Borrowing Notice to the Administrative Agent, requesting an ABR Advance under the Revolving Credit Facility in an amount equal to the amount of such drawing (a “Documentary Credit Borrowing”); (iii) the Revolving Credit Lenders shall on the date of such drawing make such Advance, ratably under the Revolving Credit Facility; and (iv) the Administrative Agent shall pay the proceeds thereof to the applicable Documentary Credit Lender as reimbursement for the amount of such drawing. |
(3) | With respect to ABR Advances made pursuant to Section 4.06(2), the interest rate and Applicable Margin for such advances shall be applied until such advances are repaid in full. |
(4) | Each applicable Revolving Credit Lender shall be required to make the Advances referred to in Section 4.06(2) notwithstanding (i) the amount of the Advance may not comply with the minimum amount required for Borrowings hereunder; (ii) whether any conditions specified in Article 5 are then satisfied; (iii) whether a Default or Event of Default has occurred and is continuing; (iv) the date of such Advance; and (v) any reduction in or termination of the Revolving Credit Commitment. |
Section 4.07 | Risk of Documentary Credits |
(1) | In determining whether to pay under a Documentary Credit, a Documentary Credit Lender shall be responsible only to determine that the documents and certificates required to be delivered under the Documentary Credit have been delivered and that they comply on their face with the requirements of the Documentary Credit. |
(2) | The reimbursement obligation of a Documentary Credit Borrower under any Documentary Credit shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including (i) any lack of validity or enforceability of a Documentary Credit; (ii) the existence of any claim, set off, defence or other right which any Person may have at any time against a Beneficiary, the Documentary Credit Lender or any other Person, whether |
(3) | The Documentary Credit Lender shall not be responsible for (i) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Documentary Credit or the rights or benefits under it or proceeds of it, in whole or in part, which may prove to be invalid or ineffective for any reason; (ii) errors, omissions, interruptions or delays in transmission or delivery of any messages by mail, telecopy or otherwise; (iii) errors in interpretation of technical terms; (iv) any loss or delay in the transmission of any document required in order to make a drawing; and (v) any consequences arising from causes beyond the control of the Documentary Credit Lender, including the acts or omissions, whether rightful or wrongful, of any Governmental Authority. None of the above shall affect, impair, or prevent the vesting of any of the Documentary Credit Lenders’ rights or powers under this Agreement. Any action taken or omitted by the Documentary Credit Lender under or in connection with any Documentary Credit or the related certificates, if taken or omitted in good faith, shall not put the Documentary Credit Lender under any resulting liability to Open Text or any Documentary Credit Borrower provided that the Documentary Credit Lender acts in accordance with the standards of reasonable care specified in the Uniform Customs and Practice for Documentary Credits (1993 Revision), ICC Publication 500 (or any replacement publication). |
Section 4.08 | Repayments |
(1) | If a Documentary Credit Borrower is required to repay the Accommodations Outstanding pursuant to Article 8, then such Borrower shall pay to the Administrative Agent an amount equal to the Documentary Credit Lender’s contingent liability in |
(2) | The Documentary Credit Lender shall, with respect to any Documentary Credit, upon the later of: |
(a) | the date on which any final and non appealable order, judgment or other such determination has been rendered or issued either terminating the applicable Judicial Order or permanently enjoining the Documentary Credit Lender from paying under such Documentary Credit; and |
(b) | the earlier of (i) the date on which either (x) the original counterpart of the Documentary Credit is returned to the Documentary Credit Lender for cancellation, or (y) the Documentary Credit Lender is released by the Beneficiary from any further obligations, and (ii) the expiry (to the extent permitted by any Law) of the Documentary Credit; |
Section 4.09 | Fees |
(1) | The Documentary Credit Borrowers under the Revolving Credit Facility shall pay to the Documentary Credit Lenders under the Revolving Credit Facility, a Documentary Credit Fee with respect to each Documentary Credit issued under the Revolving Credit Facility calculated on the basis of the daily average of the undrawn Face Amount of each such Documentary Credit and a year of 365 days, as the case may be, and payable quarterly in arrears on the first Business Day of each Financial Quarter in respect of the prior Financial Quarter and in the same currency as such Documentary Credit. |
(2) | The Documentary Credit Borrowers under the Revolving Credit Facility shall pay to each Documentary Credit Lender under the Revolving Credit Facility its (i) set-up fees, cable charges and other customary miscellaneous charges (as agreed to by the applicable Documentary Credit Borrowers and the applicable Documentary Credit Lender in advance) in respect of the issue of Documentary Credits by it and upon the amendment or transfer of each Documentary Credit and each drawing made thereunder; and (ii) documentary and administrative charges for amending, |
(3) | Commencing on the date hereof to the Relevant Repayment Date in respect of the Revolving Credit Facility, each Revolving Credit Borrower shall pay to the Administrative Agent for the ratable benefit of the Revolving Credit Lenders a Documentary Credit Participation Fee on each such Revolving Credit Lender’s Applicable Percentage of the daily average of the undrawn Face Amount of each Documentary Credit outstanding under the Revolving Credit Facility as set forth in Schedule 6. All Documentary Credit Fees will be payable quarterly in arrears on the first Business Day of each Financial Quarter in respect of the prior Financial Quarter, and upon any termination of any Commitment under the Revolving Credit Facility, in each case for the actual number of days elapsed over a year of 365 or 366 days, as applicable. |
Section 4.10 | Existing Letters of Guarantee |
Section 5.01 | Conditions Precedent to Effective Date |
(1) | the Borrowers, the Guarantors and each Lender have indicated their agreement by the execution and delivery of the signature pages hereof to the Administrative Agent; |
(2) | delivery to the Administrative Agent of a certified copy of (i) the charter documents and by-laws (or equivalent governing documents) of each Loan Party; (ii) the resolutions of the board of directors (or any duly authorized committee or other governing body thereof) or of the shareholders, as the case may be, of each Loan Party approving the entering into of this Agreement (including the amendments to the Existing Credit Agreement effected hereby) and each other Credit Document to which they are a party; (iii) all other instruments evidencing necessary corporate, company or partnership action of each Loan Party and of any required Authorization with respect to such matters; and (iv) certifying the names and true signatures of its |
(3) | delivery to the Administrative Agent of a certificate of status, compliance, good standing or like certificate with respect to each Loan Party issued by the appropriate government official in the jurisdiction of its incorporation; |
(4) | receipt of satisfactory evidence by the Administrative Agent of registration in the necessary jurisdictions of the Encumbrances or notice thereof in favour of the Collateral Agent, the Administrative Agent or the Lenders, as required under Law, created by the Security Documents in order to preserve or protect such Encumbrances for the term of the Revolving Credit Facility; |
(5) | receipt of satisfactory evidence by the Administrative Agent that the Collateral Agent or Administrative Agent (on behalf of the Lenders) shall have a valid and perfected first priority (subject to Permitted Encumbrances) security interest in the Collateral or that arrangements in respect thereof shall have been made that are reasonably satisfactory to the Administrative Agent, in each case, to the extent required by the terms of the Security Documents; |
(6) | the Administrative Agent shall have received reasonably satisfactory opinions of outside counsel or, with respect to general corporate matters, in-house counsel, in each case, to the Loan Parties in the jurisdiction of incorporation of each such Loan Party and in each jurisdiction specified by the Administrative Agent as is relevant to confirm, inter alia, corporate existence, due authorization, execution, delivery and enforceability of the Credit Documents, and the validity and perfection of the Encumbrances created by the applicable Credit Documents; |
(7) | all reasonable fees and documented out-of-pocket expenses owing to the Administrative Agent (including the reasonable fees and out-of-pocket costs of legal counsel to the Administrative Agent) have been paid in accordance with Section 15.01; |
(8) | the Administrative Agent shall have received a certificate of a Responsible Officer of Open Text attesting to the Solvency of Open Text and its Subsidiaries, on a consolidated basis and taken as a whole, in form reasonably satisfactory to the Administrative Agent; |
(9) | the Administrative Agent shall have received a certificate of a Responsible Officer of Open Text confirming that, after giving effect to the amendment and restatement of the Existing Credit Agreement, as contemplated hereby, (i) the representations and warranties contained in Article 6 are true and correct in all material respects on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date, and (ii) no event has occurred and is continuing that would constitute a Default or an Event of Default; |
(10) | upon the reasonable request of any Lender made at least ten days prior to the Effective Date, each Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to the Effective Date (or such later date as the Administrative Agent may reasonably agree); |
(11) | at least five days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower (or such later date as the Administrative Agent may reasonably agree); and |
(12) | all fees owing the Lenders pursuant to the Lender Fee Letter have been paid in accordance with the Lender Fee Letter. |
Section 5.02 | Conditions Precedent to All Accommodations |
(1) | The obligation of each Lender to make Accommodations or otherwise give effect to any Accommodation Notice hereunder shall be subject to the conditions precedent that on the date of such Accommodation Notice and Accommodation, and immediately after giving effect thereto and to the application of any proceeds therefrom, (x) the representations and warranties contained in Article 6 are true and correct in all material respects on and as of such date, all as though made on and as of such date except for those changes to the representations and warranties which have been disclosed to and accepted by the Administrative Agent and the Lenders pursuant to Section 17.01 and any representation and warranty which is stated to be made as of a certain date (and then as of such date);and (y) no event or condition has occurred and is continuing, or would result from such Accommodation or giving effect to such Accommodation Notice, which constitutes a Default or an Event of Default. |
(2) | Each of the giving of any Accommodation Notice by a Borrower and the acceptance by a Borrower of any Accommodation shall be deemed to constitute a representation and warranty by such Borrower that, on the date of such Accommodation Notice or Accommodation, as the case may be, and after giving effect thereto and to the application of any proceeds therefrom, the statements set forth in Section 5.02(1) are true and correct. |
(3) | For the avoidance of doubt, this Section 5.02 shall not apply to conversions or elections in respect of Accommodations under Section 3.03 or 3.04. |
Section 5.03 | No Waiver |
Section 6.01 | Representations and Warranties |
(1) | Incorporation and Qualification. Each Loan Party and each of its Subsidiaries is duly incorporated or formed, continued or amalgamated as the case may be, and validly existing under the laws of the jurisdiction of its organization (which, as of the Effective Date, is set forth in Schedule A ) and each is duly qualified, licensed or registered to carry on business under the Laws applicable to it in all jurisdictions in which the nature of its Assets or business makes such qualification necessary and where failure to be so qualified, licensed, registered, duly incorporated, formed or continued or amalgamated would have a Material Adverse Effect. |
(2) | Corporate Power. Each Loan Party and each of its Subsidiaries (i) has all requisite corporate or other power and authority to own and operate its properties and Assets and to carry on the Business carried on by it and any other business as now being conducted by it, except to the extent that any failure of the foregoing would not reasonably be expected to have a Material Adverse Effect; and (ii) has all requisite corporate or other power and authority to enter into and perform its obligations under this Agreement and the other Credit Documents, if any, to which it is a party. |
(3) | Conflict with Other Instruments. The execution and delivery of the Credit Documents by each Loan Party which is a party thereto and the performance by each Loan Party of its respective obligations hereunder and compliance with the terms, conditions and provisions thereof, will not (i) conflict with or result in a breach of any of the terms, conditions or provisions of (w) its constating documents or by-laws, (x) any Law, (y) any material contractual restriction binding on or affecting it or its properties, or (z) any judgment, injunction, determination or award which is binding on it; or (ii) result in, require or permit (x) the imposition of any Encumbrance in, on or with respect to the Assets now owned or hereafter acquired by it (other than pursuant to the Security Documents or which is a Permitted Encumbrance), (y) the |
(4) | Authorization, Governmental Approvals, etc. The execution and delivery of each of the Credit Documents by each Loan Party which is a party thereto and the performance by each such Loan Party of its respective obligations hereunder and thereunder have been duly authorized by all necessary corporate, partnership or analogous action and no Authorization, under any Law, and no registration, qualification, designation, declaration or filing with any Governmental Authority, is or was necessary therefor or to perfect the same, except as are in full force and effect, unamended except for Permitted Exceptions and where failure to obtain or make such Authorization, qualification, designation, declaration or filing with any Governmental Authority would not reasonably be expected to have a Material Adverse Effect. |
(5) | Execution and Binding Obligation. This Agreement and the other Credit Documents have been duly executed and delivered by each Loan Party which is a party thereto and constitute legal, valid and binding obligations of such Loan Party, enforceable against it in accordance with their respective terms, subject only to any limitation under Laws relating to (i) bankruptcy, insolvency, reorganization, moratorium or creditors’ rights generally; and (ii) general equitable principles including the discretion that a court may exercise in the granting of equitable remedies. |
(6) | Financial Condition; No Material Adverse Effect. |
(a) | Open Text has furnished to the Lenders (i) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of Open Text for the three most recent fiscal years ended at least 90 days prior to the Effective Date; and (ii) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of Open Text for each subsequent fiscal quarter after June 30, 2017, ended at least 45 days before the Effective Date. Except as otherwise publicly disclosed prior to the Effective Date, since June 30, 2017, there has been no event, development or circumstance of which any Loan Party is aware that has had or would reasonably be expected to have a Material Adverse Effect. All information (including that disclosed in all financial statements) pertaining to the Loan Parties (other than projections) (the “Information”) that has been or will be made available to the Lenders or the Administrative Agent by Open Text is or will be, when furnished, complete and correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading |
(b) | As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all material respects. |
(7) | Litigation. Except as disclosed in Schedule B or I, there are no actions, suits or proceedings (including any Tax-related matter) by or before any arbitrator or Governmental Authority or by any elected public official or by any other Person pending against or, to the knowledge of any Loan Party, threatened against or affecting any Loan Party or any of its Subsidiaries (i) that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, or (ii) that involve this Agreement or any other Credit Document and that is not being contested by the Loan Parties in good faith by appropriate proceedings or that constitutes an Event of Default. Except with respect to the Disclosed Matter(s) and except any other matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, none of the Loan Parties or any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any Environmental Permit, (ii) to the knowledge of any Loan Party, has become subject to any Environmental Liability, (iii) has received written notice of any claim with respect to any Environmental Liability, or (iv) knows of any basis for any Environmental Liability. |
(8) | Location of Business. As of the Effective Date, the only jurisdictions (or registration districts within such jurisdictions) in which any Loan Party has any place of business or stores any material tangible personal property are as set forth in Schedule C. |
(9) | Material Permits. Each Loan Party possesses all Material Permits as may be necessary to properly conduct its respective business. Each such Material Permit is (i) in full force and effect, (ii) not subject to any dispute, and (iii) is not in default, except to the extent that the failure to be in full force and effect, such dispute or such default would not reasonably be expected to have a Material Adverse Effect. As of the Effective Date, all Material Permits of the Loan Parties are listed in Schedule G. |
(10) | Trademarks, Patents, etc. Other than Intellectual Property owned by customers of the Loan Parties or licenced by the Loan Parties from third parties, and except as set forth in Schedule D, each Loan Party is the registered and beneficial owner of, with good and marketable title, free of all Encumbrances other than Permitted Encumbrances, to all material patents, patent applications, trade-marks, trade mark applications, trade names, service marks, copyrights, industrial designs, integrated circuit topographies, or other analogous rights with respect to the foregoing and other similar property, used in or necessary for the present and planned future conduct of its business, without any conflict with the rights of any other Person, other than as listed on Schedule D, or other than to the extent that the absence of such title or the |
(11) | As of the Effective Date, except as set forth in Schedule D, no claim has been asserted and is pending by any Person with respect to the use by any Loan Party of any intellectual property or challenging or questioning the validity, enforceability or effectiveness of any intellectual property necessary for the conduct of the business of any Loan Party, except for any such claim that would not reasonably be expected to have a Material Adverse Effect. Except as disclosed in Schedule D or except as would not reasonably be expected to have a Material Adverse Effect, (i) each Loan Party has the right to use the intellectual property which such Loan Party owns, (ii) all applications and registrations for such intellectual property are current, and (iii) to the knowledge of all Loan Parties, the conduct of each Loan Party’s business does not infringe the intellectual property rights of any other Person. |
(12) | Ownership of Property. Each Loan Party owns its Assets, and with respect to any material immovable or real property of the Loan Parties, with good and marketable title thereto (excluding any defects in title that do not materially impair the value of such property to such Loan Party), free and clear of all Encumbrances, except for Permitted Encumbrances and except where the failure to have such title described above could not reasonably be expected to have a Material Adverse Effect. As of the Effective Date, none of the Loan Parties owns any immovable or real property other than the Owned Real Property. |
(13) | Leased Properties. As of the Effective Date, each lease of the Loan Parties (other than any lease which is not material to the operations of the Loan Parties taken as a whole) is in good standing in all material respects and all amounts owing thereunder have been paid by the applicable Loan Party except any such amount the payment obligation in respect of which is in bona fide dispute. |
(14) | Insurance. All policies of fire, liability, workers’ compensation, casualty, flood, business interruption and other forms of insurance owned or held by each Loan Party are (a) sufficient for compliance, in all material respects, with all requirements of Law, and (b) provide adequate insurance coverage in at least such amounts and against at least such risks (but including in any event public liability) as are usually insured against in the same general area by companies engaged in the same or a |
(15) | Compliance with Laws. Except with respect to Disclosed Matters, each Loan Party and each of its Subsidiaries is in compliance with all Laws, except for non-compliance which would not reasonably be expected to have a Material Adverse Effect. |
(16) | No Default. None of the Loan Parties is in default nor has any event or circumstance occurred which, but for the passage of time or the giving of notice, or both, would constitute a default under any loan or credit agreement, indenture, mortgage, deed of trust, security agreement or other instrument or agreement evidencing or pertaining to any Debt of any Loan Party, or under any material agreement or instrument to which any Loan Party is a party or by which any Loan Party is bound, except where such default would not reasonably be expected to have a Material Adverse Effect. |
(17) | Subsidiaries, etc. Except as set forth in Schedule F, in each case as of the Effective Date, (i) no Loan Party has any Subsidiaries, (ii) Open Text is the direct or indirect beneficial owner of all of the issued and outstanding shares or partnership interests, as the case may be, of each other Loan Party, and (iii) no Person (other than a Loan Party) has any right or option to purchase or otherwise acquire any of the issued and outstanding shares or partnership interests, as the case may be, of any such Loan Party. |
(18) | Canadian Benefit Plans. The Canadian Pension Plans are duly registered under the Income Tax Act (Canada) (the “ITA”) and any other Laws which require registration, have been administered in accordance with the ITA and such other Laws and no event has occurred which would reasonably be expected to cause the loss of such registered status, except to the extent that any failure to do so or such loss would not reasonably be expected to have a Material Adverse Effect. As of the date of this Agreement, no Canadian Pension Plan provides benefits determined on a defined benefit basis. All material obligations of each Loan Party and each of its Subsidiaries (including fiduciary, funding, investment and administration obligations) required to be performed in connection with the Canadian Pension Plans and the funding agreements therefor have been performed on a timely basis except to the extent that such non-performance would not reasonably be expected to have a Material Adverse |
(19) | Material Agreements. As of the Effective Date, none of the Loan Parties is a party or otherwise subject to or bound or affected by any Material Agreement, except as set out in Schedule H. Except as set forth in Schedule H, all Material Agreements are in full force and effect, unamended, and none of the Loan Parties, or to any Loan Party’s knowledge, any other party to any such agreement is in default with respect thereto, except to the extent that any such failure, amendment or default would not reasonably expected to have a Material Adverse Effect. |
(20) | Books and Records. To and including the Effective Date, all books and records of each Loan Party and each of its Material Subsidiaries have been fully, properly and accurately kept and completed in accordance with GAAP (to the extent applicable) in all material respects, and there are no inaccuracies or discrepancies of any kind contained or reflected therein that would, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. |
(21) | Tax Liability. Each Loan Party and each of its Material Subsidiaries has timely filed or caused to be filed all returns in respect of material Taxes and has paid or caused to be paid all material Taxes required to have been paid by it (including all installments with respect to the current period) and has made adequate provision for material Taxes for the current period (other than Taxes that are being contested in good faith by appropriate proceedings and for which such Loan Party or such Material Subsidiary has, if required, set aside on its books adequate reserves in accordance with GAAP, or as to which waivers or extensions have granted by the applicable Governmental Authority) and no tax liens have been filed and no claims are being asserted in writing with respect to any such Taxes, except to the extent that (a) any failure to so file or to make such payment would not reasonably be expected to have a Material Adverse Effect or (b) in the case of any such tax liens or claims, such liens or the assertion of such claims do not materially impair the value, validity or the priority of the security interests of the Lenders in the Collateral. |
(22) | Environmental Matters. To the knowledge of any Loan Party, except as disclosed to the Lenders in Schedule I, neither any property of any Loan Party or any of its Subsidiaries, nor the operations conducted thereon violate any applicable order of any Governmental Authority or any Environmental Laws, which violation would reasonably be expected to result in remedial obligations having a Material Adverse Effect. |
(23) | Margin Stock. None of the Loan Parties engages or intends to engage principally, or as one of its important activities, in the business of extending credit for the purpose, immediately, incidentally or ultimately, of purchasing or carrying margin stock (within the meaning of Regulation U). No part of the proceeds of any Accommodation has been or will be used, immediately, incidentally or ultimately, to purchase or carry any margin stock or to refund indebtedness originally incurred for such purpose, or for any other purpose, in each case under circumstances which would result in a violation of or which is inconsistent with Regulation U. |
(24) | Investment Companies; Regulated Entities. None of the Loan Parties is an “investment company” registered or required to be registered under the Investment Company Act of 1940 as defined in the Investment Company Act of 1940. None of the Loan Parties are subject to any other Federal or state statute or regulation limiting its ability to incur Indebtedness for borrowed money. |
(25) | Solvency. Open Text and its Subsidiaries, taken as a whole and on a consolidated basis, are Solvent. |
(26) | Plans and Benefit Arrangements. |
(a) | Each Loan Party is in compliance with any applicable provisions of ERISA with respect to all Benefit Arrangements, Plans and Multiemployer Plans except to the extent that failure to comply would not reasonably be expected to have a Material Adverse Effect. Each Loan Party has made when due all payments required to be made under any collective bargaining agreement relating to a Multiemployer Plan or any Law pertaining thereto. With respect to each Plan and Multiemployer Plan, each Loan Party and each member of the ERISA Group (i) has fulfilled in all material respects their obligations under the minimum funding standards of ERISA, (ii) has not incurred any liability to the PBGC (other than for payment of premiums), and (iii) has not had asserted against them any excise tax or civil penalty for failure to fulfill the minimum funding requirements of ERISA. |
(b) | The conditions for imposition of a lien under Section 303(k) of ERISA have not been met with respect to any Plan. No reportable event within the meaning of Section 4043 of ERISA has occurred with respect to any Plan unless the 30-day notice requirement has been waived by the PBGC with respect to such event. |
(c) | No Loan Party or member of the ERISA Group has instituted or intends to institute proceedings to terminate any Plan which is materially underfunded. The PBGC has not instituted proceedings to terminate a Plan pursuant to Section 4042 of ERISA and no conditions exist that are likely to result in the termination of, or appointment of a trustee to administer, such Plan. |
(d) | None of the Loan Parties nor any members of the ERISA Group has incurred or reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan. No Loan Party and no other member of the ERISA Group has been notified by any Multiemployer Plan that such Multiemployer Plan has been terminated within the meaning of Title IV of ERISA or has been determined to be insolvent, in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305 of ERISA and, to the best knowledge of each Loan Party or member of the ERISA Group, no Multiemployer Plan is reasonably expected to be reorganized, insolvent or terminated, within the meaning of Title IV of ERISA. |
(e) | No Foreign Plan Event has occurred that would reasonably be expected to have a Material Adverse Effect. |
(27) | Economic Sanctions; Anti-Money Laundering Laws. None of the Loan Parties or any of their Subsidiaries, nor, to the knowledge of any of them without any investigation by any of them, any director, officer or employee of any of the Loan Parties or their Subsidiaries is, or is controlled or majority owned by Persons: (i) with whom dealings are restricted under any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control or the U.S. State Department, the United Nations Security Council, the European Union, Her Majesty’s Treasury or Canada (collectively, “Sanctions”), or (ii) that are located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (currently, Cuba, Iran, North Korea, the Crimea region of Ukraine and Syria); |
(28) | Labour Matters. As of the Effective Date, there are no strikes or other labour disputes pending or, to any Loan Parties’ knowledge, threatened against any Loan Party, which would reasonably be expected to have a Material Adverse Effect. Hours worked and payments made to the employees of the Loan Parties comply in all respects with all Law dealing with such matters except where non-compliance would not reasonably be expected to have a Material Adverse Effect. |
(29) | Executive Offices & Collateral Locations. As of the Effective Date, if applicable, the current location in Canada of (i) each chief executive office, principal place of business and domicile (within the meaning of the Civil Code of Québec) of each Loan Party, and (ii) the warehouses and premises at which any material Collateral is located, are as set forth on Schedule A, and none of such locations has changed within two (2) months preceding the Effective Date. Each Loan Party that keeps records in the Province of Québec relating to Collateral, keeps duplicate copies thereof at a location outside the Province of Québec as designated on Schedule A or otherwise disclosed in writing to the Administrative Agent, as applicable. |
(30) | Securities and Instruments of Guarantors. |
(a) | All Intercompany Securities and Intercompany Instruments owned by the Guarantors have been, where applicable, duly and validly issued and acquired and, in the case of the Intercompany Securities and to the knowledge of the applicable Guarantors, are fully paid and non-assessable. As of the Effective Date, Schedule L sets out, for each class of such Securities listed in such schedule, the percentage amount that such Securities represent of all issued and outstanding Securities of that class. |
(b) | Except as described in the applicable issuer’s constating documents, no transfer restrictions apply to any Intercompany Securities or Intercompany Instruments listed in Schedule L, which, as of the Effective Date, sets forth a complete list of Intercompany Securities and Intercompany Instruments. The Guarantors have delivered to the Collateral Agent or the Administrative Agent, copies of all shareholder, partnership, limited liability company or trust agreements applicable to each issuer of such Securities and Instruments which are in the Loan Parties’ possession or control. |
(c) | Except as described in the applicable issuer’s constating documents or Schedule A, as of the Effective Date, no Person has or will have any written or oral option, warrant, right, call, commitment, conversion right, right of exchange or other agreement or any right or privilege (whether by Law, pre- |
(d) | The Intercompany Instruments owned by the Guarantors constitute, where applicable, the legal, valid and binding obligation of the obligor of such Instruments, enforceable in accordance with their terms, subject only to any limitation under applicable laws relating to (i) bankruptcy, insolvency, fraudulent conveyance, arrangement, reorganization or creditors’ rights generally, and (ii) the discretion that a court may exercise in the granting of equitable remedies. |
(e) | The grants of security and deliveries to the Collateral Agent or the Administrative Agent by the Guarantors in certificated Securities constituting Collateral pursuant to the Security Documents to which such Guarantors are party create valid and perfected security interests in such certificated Securities, and the proceeds of them. Subject to Permitted Encumbrances, such Securities and the proceeds from them are not subject to any prior Encumbrance or any agreement purporting to grant to any third party an Encumbrance on the property or assets of the Guarantors which would include the Securities. |
Section 6.02 | Survival of Representations and Warranties |
Section 7.01 | Affirmative Covenants |
(1) | Reporting Requirements. During the term of this Agreement, prepare (where applicable, in accordance with GAAP) and deliver to the Administrative Agent on behalf of the Lenders, in a form not objected to by the Majority Lenders, acting reasonably: |
(a) | Financial Reporting |
(i) | as soon as practicable and in any event within 50 days of the end of each Financial Quarter of Open Text (excluding the fourth Financial Quarter), the interim unaudited consolidated financial statements of Open Text as at the end of such Financial Quarter prepared in accordance with GAAP including a balance sheet, statement of income and retained earnings and a statement of changes in financial position in each case as at the end of and for such Financial Quarter and the then |
(ii) | as soon as practicable and in any event within 90 days after the end of each Financial Year of Open Text, the annual audited consolidated financial statements of Open Text prepared in accordance with GAAP including a balance sheet, statement of income and retained earnings and a statement of changes in financial position for such Financial Year (which financial statements shall be audited by a nationally recognized accounting firm), setting forth in each case in comparative form the figures for the previous Financial Year; |
(iii) | concurrently with the delivery of the financial statements contemplated in (i) and (ii) above, a Compliance Certificate in respect of such Financial Quarter in the form attached hereto as Schedule 7; |
(iv) | as soon as available and in any event within 90 days after the end of each Financial Year (in each case, approved by the board of directors of Open Text) an Annual Business Plan in respect of Open Text and its Subsidiaries, on a consolidated basis, in each case, for the current Financial Year, provided that a preliminary draft of such plan shall have been delivered to the Administrative Agent not later than 75 days after the end of each Financial Year; and |
(v) | the foregoing financial information shall be presented in United States dollars. |
(b) | Environmental Reporting. Promptly, and in any event within 30 days of each occurrence, notify the Administrative Agent of any proceeding or order |
(c) | Additional Reporting Requirements. Deliver to the Administrative Agent (with sufficient copies for each of the Lenders) (i) as soon as possible, and in any event within five days after any Loan Party becomes aware of the occurrence of each Default or Event of Default, a statement of Responsible Officer of such Loan Party or any other officer acceptable to the Administrative Agent setting forth the details of such Default or Event of Default and the action which such Loan Party proposes to take or has taken with respect thereto; (ii) from time to time upon request of the Administrative Agent, acting reasonably, evidence of maintenance of all insurance required to be maintained by Section 7.01(7), including such originals or copies as the Administrative Agent may reasonably request of policies, certificates of insurance and endorsements relating to such insurance and proof of premium payments; (iii) at the reasonable request of the Administrative Agent, the applicable Borrower shall provide further information regarding any Permitted Acquisition to the Administrative Agent; and (iv) upon reasonable request of the Admin Agent or any Lender, together with the Compliance Certificate to be delivered pursuant to Section 7.01(1)(a)(iii), written notice of any previously undisclosed, (A) Material Subsidiaries of Open Text, (B) any Material Intellectual Property Rights; and (C) to the extent necessary for perfection of security interests in any material amount of tangible personal property under the PPSA, notice of any new location of such tangible personal property to the extent located in a jurisdiction within Canada as to which no effective PPSA financing statement has been filed in favour of the Collateral Agent or the Administrative Agent over the Assets of the applicable Loan Party; and (iv) promptly following any request therefor, (A) such other information respecting the condition or operations, financial or otherwise, of the business of any of the Loan Parties as the Administrative Agent, on behalf of the Lenders, may from time to time reasonably request and (B) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws. |
(2) | Existence; Conduct of Business. Do and cause each of its Material Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence (subject only to Section 7.02(3)), and except to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Effect, obtain, preserve, renew and keep in full force and effect any and all Material Permits. |
(3) | Payment Obligations. Pay and cause each of its Material Subsidiaries to pay all material Tax liabilities that, if not paid, would reasonably be expected to result in a Material Adverse Effect, in each case, before the same shall become materially delinquent or in material default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) such Loan Party or such Material Subsidiary has, if required, set aside on its books adequate reserves with respect thereto in accordance with GAAP, and (c) the failure to make payment pending such contest would not reasonably be expected to result in a Material Adverse Effect. |
(4) | Maintenance of Properties. Keep and maintain, and cause each of its Material Subsidiaries to keep and maintain, all real and personal property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, except to the extent that the failure to do so, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. |
(5) | Books and Records; Inspection Rights. Keep, and cause each of its Material Subsidiaries to keep, proper books of record and account in which entries, that are full, true and correct in all material respects, are made of all dealings and transactions in relation to its business and activities. Permit, and cause each of its Material Subsidiaries to permit, any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice and during normal business hours, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants; provided that (a) except during the continuance of an Event of Default, only one such visit, inspection, examination and discussion (which shall be limited to the Administrative Agent, the Lenders and their designated representatives, collectively, and not individually) shall be permitted during a Financial Year at the expense of Open Text, to be coordinated through the Administrative Agent upon at least five days’ prior notice, such visit to be limited to the chief executive office of Open Text and such other locations as may be reasonably agreed with Open Text and (b) during the continuance of an Event of Default, a visit or reasonable number of visits shall be permitted to locations other than the chief executive office that are reasonably related to the applicable Event of Default at the expense of Open Text. |
(6) | Compliance with Laws and Material Contracts. Comply with, and cause each of its Material Subsidiaries to comply with, all Laws and orders of any Governmental Authority applicable to it or its property and with all Material Agreements, except, in each case, where the failure to do so would not reasonably be expected to result in a Material Adverse Effect. |
(7) | Insurance. Maintain, and cause each of its Material Subsidiaries to maintain or cause to be maintained, with financially sound and reputable insurers, insurance with respect to their respective properties and business against such liabilities, casualties, risks and contingencies and in such types (including business interruption insurance) |
(8) | Operation and Maintenance of Property. Manage and operate, and cause each of its Material Subsidiaries to manage and operate, its business or cause its business to be managed and operated (i) in accordance with prudent industry practice in all material respects and in compliance in all material respects with the terms and provisions of all Material Permits, and (ii) in compliance with all applicable Laws of the jurisdiction in which such businesses are carried on, and all applicable Laws of every other Governmental Authority from time to time constituted to regulate the ownership, management and operation of such businesses, except where a failure to do so would not reasonably be expected to have a Material Adverse Effect. |
(9) | Status of Accounts and Collateral. With respect to the Collateral, report immediately to the Administrative Agent any matters materially adversely affecting the value, enforceability or collectability of any of the Collateral where such matter would reasonably be expected to have a Material Adverse Effect. |
(10) | Cure Defects. Promptly cure or cause to be cured any material defects in the execution and delivery of any of the Credit Documents or any of the other agreements, instruments or documents required to be executed and/or delivered pursuant thereto or any material defects in the validity or enforceability of any of the Credit Documents and, at its expense, execute and deliver or cause to be executed and delivered all such agreements, instruments and other documents as the Administrative Agent, acting reasonably, may consider necessary for the foregoing purposes. |
(11) | Additional Loan Parties/Security. In each case subject to Permitted Exceptions, if, at any time on or after the Effective Date, any Loan Party creates or acquires a Subsidiary (other than an Excluded Subsidiary) or in some other fashion becomes |
(a) | To the extent not prohibited or restricted by Law, the applicable Loan Party will, within 90 days following the occurrence of such Additional Loan Party/Subsidiary Event, execute and deliver to the Administrative Agent a securities pledge agreement, in form and substance satisfactory to the Administrative Agent acting reasonably, granting a security interest in 100% of the Equity Securities of such new or newly designated Subsidiary owned by such Loan Party; |
(b) | To the extent not prohibited or restricted by Law, the applicable Loan Party will, within 90 days following the occurrence of such Additional Loan Party/Subsidiary Event, cause such new or newly designated Subsidiary to execute and deliver to the Administrative Agent a guarantee and security of the nature contemplated by Section 2.12, all in form and substance satisfactory to the Administrative Agent, acting reasonably and accompanied by customary legal opinions of counsel to such Loan Party or such Subsidiary; and |
(c) | In connection with the execution and delivery of any guarantee, pledge agreement, mortgage, security agreement or analogous document pursuant to this Section, the applicable Loan Party will, or will cause the applicable Subsidiary to, deliver to the Administrative Agent such corporate resolutions, certificates, legal opinions and such other related documents, including, in respect of real property, reasonably satisfactory title insurance or a reasonably satisfactory title opinion and surveys, as shall be reasonably requested by the Administrative Agent and consistent with the relevant forms and types thereof delivered on the Original Closing Date or as shall be otherwise reasonably acceptable to the Administrative Agent. Each guarantee, pledge agreement, mortgage, security agreement and any other analogous document delivered pursuant to this Section shall be deemed to be a Security Document from and after the date of execution thereof. |
(12) | Material Permits. Maintain, and cause all of its Subsidiaries to maintain, all Material Permits as may be necessary to properly conduct their respective businesses, the failure of which to maintain would reasonably be expected to have a Material Adverse Effect. |
(13) | [Reserved]. |
(14) | Notices Regarding Plans and Benefit Arrangements. |
(a) | Certain Events. Promptly upon, and in any event within 25 Business Days of becoming aware of the occurrence thereof, provide notice (including the nature of the event and, when known, any action taken or threatened by the Internal Revenue Service or the PBGC with respect thereto) of: |
(i) | any reportable event (as defined in Section 4043(c) of ERISA) with respect to any Loan Party or any other member of the ERISA Group (other than any reportable event notice of which to the PBGC has been waived), |
(ii) | any Prohibited Transaction which could subject any Loan Party to a material civil penalty assessed pursuant to Section 502(i) of ERISA or a material tax imposed by Section 4975 of the Internal Revenue Code in connection with any Plan, any Benefit Arrangement or any trust created thereunder, which would reasonably be expected to have a Material Adverse Effect, |
(iii) | any assertion of withdrawal liability with respect to any Multiemployer Plan which would reasonably be expected to have a Material Adverse Effect, |
(iv) | any partial or complete withdrawal from a Multiemployer Plan by any Loan Party or any other member of the ERISA Group under Title IV of ERISA (or assertion thereof), where such withdrawal is likely to result in Material Adverse Effect, |
(v) | any cessation of operations at a facility by any Loan Party or any other member of the ERISA Group as described in Section 4062(e) of ERISA which would reasonably be expected to have a Material Adverse Effect, |
(vi) | withdrawal by any Loan Party or any other member of the ERISA Group from a Multiple Employer Plan which would reasonably be expected to have a Material Adverse Effect, |
(vii) | a failure by any Loan Party or any other member of the ERISA Group to make a payment to a Plan required to avoid imposition of a Lien under Section 303(k) of ERISA, if the imposition of such Lien would have a Material Adverse Effect, or |
(viii) | any Foreign Plan Event that would reasonably be expected to have a Material Adverse Effect. |
(b) | Notices of Involuntary Termination and Annual Reports. Promptly, and in any event within 25 Business Days, after receipt thereof, deliver to the Administrative Agent copies of (a) all notices received by any Loan Party or any other member of the ERISA Group of the PBGC’s intent to terminate any Plan administered or maintained by any Loan Party or any member of |
(c) | Notice of Voluntary Termination. Promptly, and in any event within 25 Business Days, upon the filing thereof, deliver to the Administrative Agent copies of any Form 500, or any successor or equivalent form to Form 500, filed with the PBGC in connection with the termination of any Plan. |
(d) | Canadian Benefit Plans. For each existing, or hereafter adopted, Canadian Benefit Plan, the Borrowers shall cause its Subsidiaries to, in a timely fashion, comply with and perform in all respects all of its obligations under and in respect of such Canadian Benefit Plan, including under any funding agreements and all applicable laws (including any applicable fiduciary, funding, investment and administration obligations), except to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect; provided that all employer or employee payments, contributions or premiums required to be remitted, paid to or in respect of each Canadian Benefit Plan shall be paid or remitted by the Borrowers or their Subsidiaries in a timely fashion in accordance with the terms thereof, any funding agreements and all Laws. |
(15) | Security Matters. |
(i) | If any Intercompany Securities or Intercompany Instruments owned by a Guarantor are now or at any time become evidenced, in whole or in part, by uncertificated securities registered or recorded in records maintained by or on behalf of the issuer thereof in the name of a clearing agency or a custodian or of a nominee of either, the applicable Guarantor will notify the Administrative Agent in writing of such Securities and Instruments and, at the request and option of the Administrative Agent, (i) to the extent applicable |
(ii) | During the continuance of an Event of Default, if any Securities or Instruments (other than Intercompany Securities or Intercompany Instruments) owned by a Guarantor are evidenced, in whole or in part, by uncertificated securities registered or recorded in records maintained by or on behalf of the issuer thereof in the name of a clearing agency or a custodian or of a nominee of either, the applicable Guarantor will notify the Administrative Agent in writing of such Securities and Instruments (unless such notice previously has been given) and, at the request and option of the Administrative Agent, (A) cause an appropriate entry to be made in the records of the clearing agency or custodian, as applicable, to record the interest of the Administrative Agent or its nominee (if the Administrative Agent or such nominee is a member of such clearing agency) or otherwise as the Administrative Agent may reasonably direct in such Securities or Instruments created pursuant to the Security Documents or (B) cause the Administrative Agent to have control over such Securities or Instruments. |
(iii) | None of the Guarantors will, either before or after an Event of Default, make any entry in the records of a clearing agency or custodian or the applicable securities register to record any security interest of any Person, other than the Collateral Agent, the Administrative Agent or any of their respective agents, in any Securities or Instruments owned by a Guarantor, or will grant control to any Person other than the Collateral Agent, the Administrative Agent or any of their respective agents or the agent of a Guarantor over such Securities or Instruments so long as such Guarantor is the owner thereof. |
(iv) | If any Guarantor acquires ownership of any Intercompany Securities or Intercompany Instruments, such Guarantor will, together with the next Compliance Certificate required to be delivered in accordance with Section 7.01(1)(a)(iii) following the date of such acquisition of Intercompany Securities or Intercompany Instruments, notify the Administrative Agent in writing and provide the Administrative Agent with a revised Schedule L recording the acquisition and particulars of such Instruments or Securities. Upon request by the Administrative Agent, such Guarantor will promptly |
(v) | Forthwith upon the occurrence of an Event of Default that is continuing, each Guarantor will provide the Administrative Agent with a list of all Securities and Instruments (other than Intercompany Securities or Intercompany Instruments) held by it, and will notify the Administrative Agent of the acquisition by it of any additional Securities and Instruments (other than Intercompany Securities or Intercompany Instruments). Upon request by the Administrative Agent during the continuance of an Event of Default, each Guarantor will promptly deliver to and deposit with the Administrative Agent, or cause the Administrative Agent to have control over, all Securities or Instruments (other than Intercompany Securities or Intercompany Instruments) owned or held by such Guarantor, as security for the Secured Obligations of the applicable Guarantor pursuant to this Agreement and the other Credit Documents to which such Guarantor is party. |
(vi) | Each Guarantor will ensure that no Person other than itself, its agent or another Person on its behalf, the Collateral Agent, the Administrative Agent or any of their respective agents has possession of any certificated Securities or certificated Instruments owned by such Guarantor. |
(vii) | Each Guarantor will, with respect to any Securities or Instruments owned by it, at the request of the Administrative Agent (but, in the case of Securities or Instruments that are not Intercompany Securities or Intercompany Instruments, such request shall only be made during the continuance of an Event of Default) (i) cause the transfer of such Securities or Instruments to the Administrative Agent (or its nominee (if the Administrative Agent or such nominee is a member of such clearing agency) or otherwise as the Administrative Agent may reasonably direct) to be recorded in the records of a clearing agency or custodian, if and as applicable under Law, or on the applicable securities register or (ii) duly endorse such Securities or Instruments for transfer in blank or register them in the name of the Administrative Agent or its nominee or otherwise as the Administrative Agent may reasonably direct, (iii) immediately deliver to the Administrative Agent any and all consents or other documents which may be necessary to effect the transfer of such Securities or Instruments to the Administrative Agent or any third party and (iv) deliver to or otherwise cause the Administrative Agent to have control over such Securities or Instruments. |
(b) | Intellectual Property. Promptly following the request of the Administrative Agent, each Loan Party will furnish the Administrative Agent in writing the description of all material Registered Intellectual Property or applications |
(c) | Maintaining the Account Collateral. So long as any Accommodation or any other Secured Obligation secured by the Pledge and Security Agreement (other than contingent indemnification claims as to which no valid demand has been made, “Unmatured Surviving Obligations”) of any Loan Party under any Credit Document shall remain unpaid or shall be outstanding, any Eligible Cash Management Agreement or Eligible Hedging Agreement shall be in effect or any Lender Party shall have any Commitment: |
(i) | Each U.S. Grantor will maintain deposit accounts only with the financial institution acting as Administrative Agent or Collateral Agent hereunder or with a bank (a “Pledged Account Bank”) that has agreed with such U.S. Grantor and the Administrative Agent or the Collateral Agent, as applicable, to comply with instructions originated by the Administrative Agent or the Collateral Agent, as applicable, directing the disposition of funds in such deposit account without the further consent of such U.S. Grantor, such agreement in form and substance reasonably satisfactory to the Administrative Agent and such U.S. Grantor (a “Deposit Account Control Agreement”); provided, however, that this Section 7.01(15)(c) shall only apply to accounts maintained in the United States and shall not apply to deposit accounts (A) used solely as a tax or payroll account, escrow account, trust account, petty cash account or flexible spending account, in each case maintained in the ordinary course of business or (B) or other deposit accounts to the extent that the aggregate amount on deposit with all such other deposit accounts does not exceed U.S. $20,000,000, or such lower amount as may be required under the Term B Credit Agreement at any time. |
(ii) | The Administrative Agent may (or may request that the Collateral Agent), at any time during the continuance of an Event of Default, request that each U.S. Grantor instruct each Person obligated at any time to make any payment to such U.S. Grantor for any reason (an “Obligor”) to make such payment |
(iii) | The Administrative Agent may (or may request that the Collateral Agent), at any time during the continuance of an Event of Default and without notice to, or consent from, any U.S. Grantor, transfer, or direct the transfer of, funds from the Pledged Deposit Accounts to the Collateral Account to satisfy the Secured Obligations under the Security and Pledge Agreement and other Credit Documents. |
(iv) | Upon any termination by a U.S. Grantor of any Pledged Deposit Account, such U.S. Grantor will promptly (i) to the extent transferred within the United States, transfer all funds and property held in such terminated Pledged Deposit Account to another Pledged Deposit Account or the Collateral Account and (ii) notify all Obligors that were making payments to such Pledged Deposit Account, to the extent future payments continue to be made within the United States, to make all future payments to another Pledged Deposit Account or the Collateral Account, in each case so that the Administrative Agent or the Collateral Agent, as applicable, shall have a continuously perfected security interest in such Collateral Account, funds and property. |
(d) | Collections on Assigned Agreements and Instruments. Except as otherwise provided in this Section 7.01(15)(d), each U.S. Grantor will continue to collect, at its own expense, all amounts due or to become due to such U.S. Grantor under the Assigned Agreements, Receivables and Related Contracts (each such term being used herein as defined in the Security and Pledge Agreement). In connection with such collections, such U.S. Grantor may take (and, at the Administrative Agent’s direction upon the occurrence and during the continuance of an Event of Default, will take) such action as such U.S. Grantor or the Administrative Agent may deem necessary or advisable to enforce collection of the Assigned Agreements, Receivables and Related Contracts; provided, however, that the Administrative Agent shall have the right at any time, upon the occurrence and during the continuance of an Event of Default and upon written notice to such U.S. Grantor of its intention to do so, to notify the Obligors under any Assigned Agreements or Instruments of the assignment of such Assigned Agreements and Instruments to the Administrative Agent and to direct such Obligors to make payment of all amounts due or to become due to such U.S. Grantor thereunder directly to the Administrative Agent and, upon such notification and at the expense of such U.S. Grantor, to enforce collection of any such Assigned Agreements |
(e) | Commercial Tort Claims. Each U.S. Grantor will promptly give notice to the Administrative Agent of any commercial tort claim of such U.S. Grantor that may arise after the date hereof with an anticipated recovery of at least $2,000,000 and will immediately execute or otherwise authenticate a supplement to the Security and Pledge Agreement, and otherwise take all action reasonably necessary to subject such commercial tort claim to the security interest created under such Security Document. |
(16) | Financial Assistance. Each Loan Party shall comply, in each case in all material respects, with sections 151 to 158 (inclusive) of the Companies Act 1985 of England and Wales (if applicable) and all other applicable laws and regulations relating to financial assistance by a company for the acquisition or subscription for shares or relating to protection of shareholders’ capital in other applicable jurisdictions, including in relation to the execution and performance of the Credit Documents and the payment of amounts due under the Credit Documents. |
Section 7.02 | Negative Covenants |
(1) | Debt. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to create, incur, assume or suffer to exist, any Debt other than Permitted Debt. |
(2) | Encumbrances. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to create, incur, assume or suffer to exist, any Encumbrance on any of its or their, as the case may be, respective Assets, other than Permitted Encumbrances. |
(3) | Fundamental Changes. Merge into or amalgamate or consolidate with, or permit any of its Material Subsidiaries to merge into, amalgamate or consolidate with any other Person, or permit any other Person to merge into or amalgamate or consolidate with it, or liquidate, dissolve or be wound up, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, (i) any Loan Party may merge into, or amalgamate or consolidate with, or liquidate, dissolve or be wound up into any other Loan Party, (ii) any wholly-owned Subsidiary of any Loan Party may liquidate, dissolve or be wound up into any Loan Party if such Loan Party determines in good faith that such winding up is in the best interests of such Loan Party, (iii) any wholly-owned Subsidiary of any Loan Party may merge into, or amalgamate or consolidate with, any Loan Party, so long as the surviving or continuing entity is a Loan Party; (iv) any Immaterial Subsidiary may merge into or amalgamate or consolidate with, any Subsidiary or liquidate, dissolve or be wound up into any Subsidiary; and (v) any Subsidiary of a Loan Party that is not a Loan Party may merge into or amalgamate or consolidate with, or liquidate, dissolve or be wound up into any other Subsidiary of a Loan Party that is not a Loan Party. |
(4) | Carry on Business. Engage in any business or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to engage in any business, other than the Business and businesses which are the same as or related, ancillary, incidental or complementary to the Business. |
(5) | Disposal of Assets Generally. Dispose of, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to Dispose of, any Assets to any Person, other than Permitted Dispositions, so long as (other than in respect of a Permitted Disposition described in clause (ii) of the definition thereof) no Event of Default has occurred and is continuing or would result therefrom. |
(6) | Transactions with Affiliates. Dispose of, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to Dispose of, any Assets to, or purchase, lease or otherwise acquire any Assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices and on terms and conditions not more restrictive to such Loan Party or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among Loan Parties not involving any other Affiliate, (c) any Restricted Payments permitted by Section 7.02(8) or any intercompany Debt and interest thereon expressly excluded from the definition of Restricted Payment, and (d) as otherwise permitted pursuant to this Agreement and the Credit Documents. The foregoing restrictions shall not apply to: (i) the payment of reasonable and customary fees to directors of Open Text who are not employees of Open Text, (ii) any other transaction with any employee, officer or director of the Loan Parties pursuant to employee profit sharing and/or benefit plans and compensation and non-competition arrangements in amounts customary for corporations similarly situated to the Loan Parties and entered into in the ordinary course of business and approved by the board of directors of the applicable Loan Party, or (iii) any reimbursement of reasonable out-of-pocket costs incurred by an Affiliate of Open Text on behalf of or for the account of Open Text or any of the Loan Parties. |
(7) | Restrictive Agreements. Directly or indirectly enter into, incur or permit to exist, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to directly or indirectly enter into, incur or permit to exist, any agreement or other arrangement, that prohibits, restricts or imposes any condition upon (a) the ability of such Loan Party or such Subsidiary to create, incur or permit to exist any Encumbrance upon any of its Assets pursuant to the Credit Documents, (b) the ability of such Loan Party or such Subsidiary to pay dividends or other distributions with respect to any Equity Securities or with respect to, or measured by, its profits or to make or repay loans or advances to any Loan Party or to provide a guarantee of any Debt of any Loan Party pursuant to the Credit Documents, (c) the ability of any Loan Party or any of its Subsidiaries to make any loan or advance to the Loan Parties, or (d) the ability of any Loan Party or any of its Subsidiaries to sell, lease or transfer any of its property to any other Loan Party; provided that the foregoing shall not apply to (i) restrictions and conditions existing on the Effective Date identified on Schedule K (but shall apply to any amendment or modification expanding the scope of, any such restriction or condition), to (ii) customary restrictions and conditions contained in agreements relating to the sale of a Loan Party or any of its Subsidiaries or any of their respective Assets pending such sale and such restrictions and conditions apply only to the Loan Party, Subsidiary or the Assets that are to be sold and such sale is permitted hereunder; (iii) restrictions or conditions imposed by any agreement relating to secured Debt permitted by this Agreement if such restrictions or conditions apply only to the Assets securing such Debt; and (iv) customary provisions in leases and other ordinary course contracts restricting the assignment or pledge thereof or the Assets that are the subject thereof. |
(8) | Restricted Payments. Declare, make or pay or agree to declare, make or pay, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to declare, make or pay, or agree to declare, make or pay, directly or indirectly, any Restricted Payment, except (a) the declaration and payment of dividends with respect to the Equity Securities of Open Text payable solely in additional Equity Securities, (b) Restricted Payments by any Subsidiary of a Loan Party to its parent entity or entities (so long as, in the case of a non-wholly owned Subsidiary, such Restricted Payments are made at least ratably to the applicable parent which is a Loan Party or Subsidiary thereof), (c) regularly scheduled payments in respect of Permitted Debt, (d) Restricted Payments by the Loan Parties pursuant to and in accordance with stock option plans, profit sharing plans, employment agreements and/or other benefit plans for the directors or officers of Open Text and its Subsidiaries, provided that the aggregate amount of cash payments made by the Loan Parties in any Financial Year pursuant to all such stock option plans, profit sharing plans and other compensation benefit plans shall not exceed reasonable commercial amounts, (e) except as provided in clause (g) below, Restricted Payments by the Loan Parties and their Subsidiaries, in an aggregate amount not to exceed in any Financial Year 35% of Consolidated EBITDA for such Financial Year, (f) except as provided in clause (g) below, Restricted Payments by the Loan Parties in an aggregate amount not to exceed $300,000,000 in any Financial Year, (g) Restricted Payments by the Loan Parties in an unlimited amount, provided that Open Text has demonstrated that it will be in compliance with a Consolidated Senior Secured Net Leverage Ratio of 2.00:1.00 or less on a pro forma basis at the end of the Financial Quarter immediately following the making of such Restricted Payment for the Measurement Period then ended, and (h) the declaration and payment of dividends or other distributions with respect to, and the purchase, redemption or other acquisition of the Equity Securities of a Subsidiary of Open Text that is a Loan Party to another Subsidiary of Open Text that is not a Loan Party, so long as after giving effect thereto, (x) the Loan Parties would be in compliance with the financial covenant set forth in Section 7.03 on a pro forma basis and (y) no Default or Event of Default has occurred and is continuing or would result therefrom. |
(9) | Investments. Purchase, hold or acquire, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to purchase, hold or acquire (including pursuant to any amalgamation with any Person that was not a wholly-owned Subsidiary prior to such amalgamation), any Equity Securities, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person, except: |
(a) | Investments by any such Loan Party or Subsidiary in the Equity Securities of any Loan Party; |
(b) | loans or advances made by any Loan Party to any other Loan Party; |
(c) | at any time that no Default or Event of Default has occurred and is continuing, or would result therefrom, investments by any such Loan Party or Subsidiary in the Equity Securities of an Excluded Subsidiary or Material Subsidiary or loans or advances made by any such Subsidiary to an Excluded Subsidiary or Material Subsidiary (other than investments, loans or advances existing as of the Effective Date), provided that the aggregate amount outstanding of all such investments, loans or advances made by all such Loan Parties and Subsidiaries does not at any time exceed the greater of (i) U.S. $300,000,000 and (ii) 5% of Consolidated Assets at any time (plus trade payables and amounts paid on account of services rendered, in each case, in the ordinary course of business), such amount to be determined net of Investment Credits received from Excluded Subsidiaries; |
(d) | Permitted Debt; |
(e) | Investments acquired pursuant to a Permitted Acquisition; |
(f) | Investments existing on the Effective Date in the Equity Securities listed on Schedule F and any security into which such Equity Securities or such converted security may be converted from time to time; |
(g) | Investments consisting of the repurchase of shares of Open Text to the extent permitted under Section 7.02(8); |
(h) | Permitted Investments; |
(i) | Investments by any such Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party; and |
(j) | at any time that no Default or Event of Default has occurred and is continuing, or would result therefrom, other Investments in any Person engaged in a business that is the same as or related, ancillary, incidental or complementary to any business carried on by a Loan Party that are not otherwise permitted hereunder (i) not to exceed the greater of (x) U.S. $200,000,000 and (y) 5% of Consolidated Assets at any time, such amount to be determined net of Investment Credits received from all such Persons or (ii) in an unlimited amount, provided, in the case of this clause (ii) only, that Open Text has demonstrated that it will be in compliance with a Consolidated Senior Secured Net Leverage Ratio of 2.25:1.00 or less on a pro forma basis at the end of the Financial Quarter immediately following the making of such Investment for the Measurement Period then ended. |
(10) | Acquisitions. Make any Acquisition, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to make any Acquisition, other than, and provided no Default or Event of Default has occurred and is continuing, or would result therefrom, a Permitted Acquisition. |
(11) | Subsidiaries. Create or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to create, purchase, hold or acquire (including pursuant to any amalgamation with any Person that was not a wholly-owned Subsidiary prior to such amalgamation), any Subsidiary unless, except as otherwise provided for in this Agreement, such Subsidiary is a wholly-owned Subsidiary. |
(12) | Lease-Backs. Except as otherwise provided for in this Agreement and the Sale-Leaseback Transaction on market terms involving the Assets located at 5347 West 161st Street, Brook Park, Ohio, enter into, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to enter into, any arrangement, directly or indirectly, with any Person whereby any such Loan Party or such Subsidiary shall sell or transfer any property, whether now owned or hereafter acquired, and whereby any such Loan Party or such Subsidiary shall then or thereafter rent or lease as lessee such property or any part thereof or other property which such Loan Party intends to use for substantially the same purpose or purposes as the property sold or transferred. |
(13) | Canadian Pension Plan Compliance. (a) Terminate, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to terminate, any Canadian Pension Plan in a manner, or take any other action with respect to any Canadian Pension Plan, which would reasonably be expected to have a Material Adverse Effect, (b) fail to make, or permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to fail to make, full payment when due of all amounts which, under the provisions of any Canadian Pension Plan, agreement relating thereto or Law, Open Text or any other Loan Party is required to pay as contributions thereto if such failure would reasonably be expected to have a Material Adverse Effect, (c) contribute to or assume an obligation to contribute to, or permit any Loan Party (other than any Loan Party acquired as a result of a Permitted Acquisition) to contribute to or assume an obligation to contribute to, any pension plan which provides benefits determined on a defined benefit basis or, if such Loan Party is liable for funding defined benefits thereunder, any “multi-employer pension plan” as such terms are defined in the Pension Benefits Act (Ontario), or (d) acquire, or permit any Loan Party to acquire, an interest in any Person if such Person sponsors, maintains or contributes to, or, at any time in the six-year period preceding such acquisition has sponsored, maintained, or contributed to any pension plan which provides benefits determined on a defined benefit basis or, if such Person is liable for funding defined benefits thereunder, any “multi-employer pension plan” as such terms are defined in the Pension Benefits Act (Ontario); provided that, Open Text or any other Loan Party may acquire an interest in any such Person if such Person is |
(14) | Amendments. Make (a) any amendments to its or any of its Subsidiaries’ (other than Exempt Immaterial Subsidiaries) constating documents or by-laws (or other governing documents) which, taken as a whole, are adverse in any material respect to the Lenders’ interests, hereunder or the Encumbrances arising under or created by the Security Documents; (b) any amendments to, or grant any waivers in respect of, Material Agreements or any guarantee or security in respect thereof in a manner that would materially and adversely affect the Lenders’ interests, taken as a whole, under the Credit Documents; or (c) in the case of the Term B Credit Agreement, without limiting sub-clause (b) of this Section 7.02(14), any amendments to increase the principal amount of the Debt thereunder above the sum of Term Loans made on the Term Loan Closing Date plus the principal amounts of any “Incremental Term Facility” permitted in accordance with the terms of the Term B Credit Agreement as of the Effective Date or shorten the maturity or weighted average life to maturity thereof or make any provision thereof more restrictive to the Borrowers in any material respect than the corresponding provision of this Agreement. |
(15) | Change of Auditors. Change its auditors other than to a nationally recognized accounting firm. |
(16) | Plan and Benefit Arrangements. Not and not permit any of its Subsidiaries or any other member of the ERISA Group to: |
(a) | fail to satisfy the minimum funding requirements of ERISA and the Internal Revenue Code with respect to any Plan if such failure has a Material Adverse Effect; |
(b) | request a minimum funding waiver from the Internal Revenue Service with respect to any Plan; |
(c) | engage in a Prohibited Transaction with any Plan, Benefit Arrangement or Multiemployer Plan which, alone or in conjunction with any other circumstances or set of circumstances resulting in liability under ERISA, would constitute a Material Adverse Effect; |
(d) | fail to make when due any contribution to any Multiemployer Plan that any Loan Party or any member of the ERISA Group may be required to make under any agreement relating to such Multiemployer Plan, or any Law pertaining thereto, where any such failure results in a Material Adverse Effect; |
(e) | withdraw (completely or partially) from any Multiemployer Plan or withdraw (or be deemed under Section 4062(e) of ERISA to withdraw) from any |
(f) | terminate, or institute proceedings to terminate, any Plan, where such termination results in a Material Adverse Effect; |
(g) | fail to make any contributions to any Plan which gives rise to the conditions for imposition of a lien under Section 303(k) of ERISA; |
(h) | fail to give any and all notices and make all disclosures and governmental filings required under ERISA or the Internal Revenue Code, where such failure results in a Material Adverse Effect; or |
(i) | permit the occurrence of any Foreign Plan Event that would reasonably be expected to result in a Material Adverse Effect. |
(17) | Speculative Transactions. Engage in, or permit any Material Subsidiary to enter into, any interest rate, currency rate, commodity hedge or similar agreement, understanding or obligation, except in the normal course of business and not for speculative purposes. |
(18) | Change of Corporate Name or Location. Change or permit any of their Subsidiaries that are Loan Parties to change (a) its incorporated name, or if not a corporation, its name as it appears in official filings in the jurisdiction of its organization, (b) change its chief executive office, principal place of business, domicile (within the meaning of the Civil Code of Québec) (unless such change is within the same jurisdiction), (c) change the type of entity that it is, (d) change its jurisdiction of incorporation or organization or its corporate or organizational structure, and (e) in the case of any Loan Party organized under the laws of a jurisdiction within the United States, change its organizational identification number, in each case, unless Open Text provides prompt written notice thereof to Administrative Agent so that, subject to Permitted Exceptions, Administrative Agent may take such actions as are necessary as a result thereof to continue the perfection and in the case of the Province of Québec, publication, of any Encumbrances in favour of the Collateral Agent or Administrative Agent in any Collateral. |
(19) | Share Capital. Except in a transaction otherwise permitted under this Agreement, permit any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) to issue any shares, or any options, warrants or securities convertible into shares, to the extent that such issuance would result in a reduction in the ownership percentage or such Loan Party in such Subsidiary. |
Section 7.03 | Financial Covenants |
(1) | So long as any amount owing hereunder remains unpaid or any Lender has any obligations under this Agreement, and unless consent is given in accordance with Section 17.01 hereof, Open Text shall: |
(a) | Consolidated Net Leverage Ratio. Maintain, as at the end of each Financial Quarter, a Consolidated Net Leverage Ratio of not greater than 4.00:1.00. |
Section 8.01 | Events of Default |
(1) | If any of the following events (each an “Event of Default”) shall occur and be continuing: |
(a) | a Borrower shall fail to pay any principal amount of the Accommodations Outstanding when such amount becomes due and payable; |
(b) | a Borrower shall fail to pay any interest or Fees when the same become due and payable hereunder and such failure shall remain unremedied for five Business Days; |
(c) | any representation or warranty made or deemed to be made by Open Text or any other Loan Party in this Agreement or any other Credit Document to which it is a party shall prove to have been incorrect in any material respect when made or deemed to be made; |
(d) | Open Text shall fail to perform, observe or comply with any of the covenants contained in Section 7.01(2), Section 7.02 or Section 7.03; |
(e) | Open Text shall fail to perform, observe or comply with any of the covenants contained in Section 7.01(1)(a) and such failure shall remain unremedied for five Business Days; |
(f) | Open Text shall fail to perform, observe or comply with any of the covenants contained in Section 7.01(1)(b) or (c) or Section 7.01(3) and such failure shall remain unremedied for fifteen Business Days; |
(g) | Open Text or any other Loan Party shall fail to perform or observe any other term, covenant or agreement contained in any Credit Document to which it is a party (other than a covenant or agreement whose breach or default in performance is elsewhere in this Section 8.01 specifically dealt with) and |
(h) | a Loan Party or any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) shall fail to pay the principal of or interest on any Debt (excluding any Debt hereunder) which is outstanding in an aggregate principal amount exceeding U.S. $125,000,000 (or the equivalent amount in any other currency), when such amount becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other breach, default or failure by a Loan Party shall occur with respect to any other term of such Debt, and shall continue after the applicable grace period, if any, specified in any agreement or instrument relating to any such Debt, if the effect of such breach, default or failure is to cause or (in the case of a breach, default or failure with respect to a matured term of the applicable Debt) permit the acceleration of such Debt; provided that no Event of Default under this Section 8.01(1)(h) shall occur or be continuing if such failure, default or breach has been waived by the holder(s) or trustee or agent on behalf of such holder(s) of such Debt; |
(i) | any writ of execution or similar process is enforced or levied upon material Assets having a value of U.S. $125,000,000 (or the equivalent amount in any other currency) or more, net of any amounts covered by an enforceable contract of insurance, of any Loan Party and remains undischarged, unvacated and unstayed for a period (for each action) of 60 days and, in any event, later than five Business Days prior to the date of any proposed sale thereunder, provided that, during such period, such process is in good faith disputed by such Loan Party; |
(j) | any judgment or order for the payment of money in excess of U.S. $125,000,000 (or the equivalent amount in any other currency), net of any amounts available for the satisfaction of such judgment or order pursuant to an enforceable contract of insurance, shall be rendered against any Loan Party or any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) and the same shall remain undischarged, unvacated, unstayed and unbonded pending appeal for a period of 60 consecutive days from the entry thereof; |
(k) | any non-monetary judgment or order shall be rendered against any Loan Party or any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) that would be reasonably likely to have a Material Adverse Effect, and the same shall remain undischarged, unvacated, unstayed and unbonded pending appeal for a period of 60 consecutive days during which execution shall not be stayed; |
(l) | any Loan Party or any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) (i) fails to generally pay its debts as such debts become due; (ii) admits in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; (iii) institutes or has instituted against it any proceeding seeking (w) the possession, foreclosure, seizure, retention, sale or other disposition of, or other proceedings to enforce security over, all or any substantial part of the Assets (having a value in excess of U.S. $125,000,000) of any Loan Party, (x) to adjudicate it a bankrupt or insolvent, (y) any liquidation, winding-up, reorganization (in each case, other than as specifically permitted hereunder), arrangement (other than as specifically permitted hereunder), protection, relief or composition of it or its debts under any Law relating to bankruptcy, insolvency, reorganization, incorporation law or relief of debtors including any plan of compromise or arrangement or other similar corporate proceeding involving or affecting its creditors, or (z) the entry of an order for relief or the appointment of a receiver, trustee, interim receiver, receiver and manger, liquidator, custodian, sequestrate or other similar official for it or for any substantial part of its Assets (having a value in excess of U.S. $125,000,000), and in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including the entry of an order for relief against it or the appointment of a receiver, trustee, interim receiver, receiver and manger, liquidator, custodian, sequestrate or other similar official for it or for any substantial part of its Assets (having a value in excess of U.S. $125,000,000)) shall occur; or (iv) the board of directors or other applicable governing body of any Loan Party adopts any resolution or otherwise authorizes action to approve any of the foregoing actions; |
(m) | any Impermissible Qualification of the audited financial statements required to be delivered pursuant to Section 7.01(1); |
(n) | any of the Credit Documents executed and delivered by any Loan Party shall cease to be in full force and effect in any material respect (taken as a whole) and such failure (i) relates to a material portion of the Collateral, and (ii) did not arise from the failure of the Administrative Agent or any Lender to take any action within its control (without limiting the Loan Parties’ obligations under Section 2.12(1), 7.01(1)(c) and 7.01(11)) and (iii) shall remain unremedied for 10 Business Days; or |
(o) | the validity of any of the Credit Documents or the applicability thereof to the Accommodations or any other Obligations purported to be secured or guaranteed thereby or any part thereof shall be contested in writing by any Loan Party; |
Section 8.02 | Remedies Upon Demand and Default |
(1) | Upon a declaration that the Accommodations Outstanding under the Revolving Credit Facility are immediately due and payable pursuant to Section 8.01, the Administrative Agent shall at the request of, or may with the consent of, the Majority Lenders, commence such legal action or proceedings as it, in its sole discretion, may deem expedient, including the commencement of enforcement proceedings under the Security Documents or any other security granted by Open Text or any other Loan Party to the Collateral Agent, Administrative Agent or the Lenders, all without any additional notice, presentation, demand, protest, notice of dishonour, entering into of possession of any of the Assets, or any other action or notice (except as required by Law), all of which the Loan Parties hereby expressly waive (to the extent enforceable under Law). |
(2) | The rights and remedies of the Administrative Agent and the Lenders hereunder and under the other Credit Documents are cumulative and are in addition to and not in substitution for any other rights or remedies. Nothing contained herein or in the Security Documents or any other security hereafter held by the Collateral Agent, Administrative Agent and the Lenders, with respect to the indebtedness or liability of the Borrowers or any other Loan Party to the Administrative Agent and the Lenders, or any part thereof, nor any act or omission of the Administrative Agent or the Lenders with respect to the Security Documents, the Collateral or such other security, shall in any way prejudice or affect the rights, remedies and powers of the Administrative Agent and the Lenders hereunder or under the Security Documents or such Collateral. |
Section 9.01 | Increased Costs; Reserves on LIBOR Advances |
(1) | Increased Costs Generally. If any Change in Law shall: |
(a) | impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender, including LIBOR funds or deposits; |
(b) | subject any Lender to any Tax of any kind whatsoever with respect to this Agreement or any Accommodations made by it, or change the basis of taxation of payments to such Lender in respect thereof, except for (i) Indemnified Taxes or Other Taxes covered by Section 9.02 and (ii) the imposition, or any change in the rate, of any Excluded Tax payable by such Lender; or |
(c) | impose on any Lender or the London applicable interbank market any other condition, cost or expense affecting this Agreement or Accommodations made by such Lender; |
(2) | Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the applicable Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense (excluding any loss, cost or expense arising from Taxes) incurred by it as a result of: |
(a) | any continuation, conversion, payment or prepayment of any Advance other than an ABR Advance on a day other than the last day of the Interest Period for such Advance (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); |
(b) | any failure by the applicable Borrower (for a reason other than the failure of such Lender to make an Advance) to prepay, borrow, continue or convert any Advance other than an ABR Advance on the date or in the amount notified by the applicable Borrower; or |
(c) | any assignment of a LIBOR Advance on a day other than the last day of the Interest Period therefor as a result of a request by the applicable Borrower pursuant to Section 9.03; |
(3) | Liquidity or Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding liquidity or capital requirements has or would have the effect of reducing the rate of return on such Lender’s liquidity or capital or on the liquidity or capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Accommodations made by such Lender, to a level below that which such Lender or its holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of its holding company with respect to liquidity or capital adequacy), then from time to time the applicable Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or its holding company for any such reduction suffered. |
(4) | Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case |
(5) | Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation, except that the applicable Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender notifies the applicable Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefore, unless the Change in Law giving rise to such increased costs or reductions is retroactive, in which case the nine-month period referred to above shall be extended to include the period of retroactive effect thereof. |
Section 9.02 | Taxes |
(1) | Payments Subject to Taxes. Any and all payments by or on account of any obligation of the Borrowers hereunder or under any Credit Document shall be made free and clear and without reduction or withholding for any Indemnified Taxes or Other Taxes; provided that, if any Loan Party, the Administrative Agent or any Lender is required by Law to deduct or pay any Indemnified Taxes or Other Taxes in respect of any payment by or on account of any obligation of a Loan Party hereunder or under any |
(2) | Payment of Other Taxes by the Borrowers. Without limiting the provisions of paragraph (1) above, the Borrowers shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with Law. |
(3) | Indemnification by the Borrowers. The Borrowers shall indemnify the Administrative Agent and each Lender, within 15 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent or such Lender in respect of any payment by or on account of any obligation of a Loan Party hereunder or under any other Credit Document and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the applicable Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. In the event the Lender subsequently recovers by obtaining a refund, credit or otherwise, all or part of the payment made under this Section paid by the applicable Borrower, it shall promptly repay an equal amount to the applicable Borrower. A Lender shall make reasonable efforts to limit the incidence of any payments under this Section and seek recovery for the account of the applicable Borrower upon such Borrower’s reasonable request at such Borrower’s expense, provided such Lender in its reasonable determination suffers no appreciable economic, legal, regulatory or other disadvantage and further provided that nothing in this Section shall require a Lender to disclose any Tax returns of such Lender or any other Tax information which such Lender deems to be confidential. |
(4) | Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan Party to a Governmental Authority, the Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. |
(5) | Status of Lenders. Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the applicable Borrower is resident for Tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Credit Document shall, at the request of the applicable Borrower, deliver to the applicable Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Law or reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the applicable Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Law or reasonably requested by the applicable Borrower or the Administrative Agent as will enable the applicable Borrower or the Administrative Agent to determine whether or not such Lender is subject to withholding or information reporting requirements. |
(a) | any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall deliver to the applicable Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the applicable Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; |
(b) | any Foreign Lender shall deliver to the applicable Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the applicable Borrower or the Administrative Agent), but only if such Foreign Lender is legally entitled to do so, whichever of the following is applicable: |
(i) | executed originals of, as appropriate, Internal Revenue Service (“IRS”) Form W-8BEN or IRS Form W-8BEN-E (or any successor forms) claiming eligibility for benefits of an income tax treaty to which the United States is a party; |
(ii) | executed originals of IRS Form W-8ECI (or any successor form), or |
(iii) | to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E and/or other certification documents from each beneficial owner, as applicable; |
(iv) | in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (y) duly completed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or any successor forms); and |
(v) | executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made. |
(6) | If a payment made by any Borrower hereunder or under any other Credit Document would be subject to United States federal withholding tax imposed pursuant to FATCA if any Lender fails to comply with applicable reporting and other requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to such Borrower and the Administrative Agent, at the time or times prescribed by applicable Law or as reasonably requested by such Borrower or the Administrative Agent, any documentation prescribed by applicable Law (including documentation prescribed by Section 1471(b)(3)(c)(i) of the Code or such additional documentation reasonably requested by such Borrower or the Administrative Agent for such Borrower or the Administrative Agent to comply with its obligations under FATCA), to determine the amount to withhold or deduct from such payment and to determine that such Lender has complied with such applicable reporting and other requirements of FATCA. |
(7) | For purposes of determining withholding Taxes imposed under FATCA, from and after the Effective Date, the Borrowers and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Revolving Credit Facility as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i). This section 9.02(7) shall not affect the FATCA status of any other borrowing or facility under this Agreement. |
(8) | Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 16.01(8) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable |
Section 9.03 | Mitigation Obligations: Replacement of Lenders |
(1) | Designation of a Different Lending Office. If any Lender requests compensation under Section 9.01, or requires the applicable Borrower to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 9.02, then such Lender shall (at the request of the applicable Borrower) use reasonable efforts to designate a different lending office for funding or booking its Accommodations hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender (with the prior consent of the applicable Borrower), such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 9.01 or 9.02, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The applicable Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment. |
(2) | Replacement of Lenders. If any Lender requests compensation under Section 9.01, if the applicable Borrower is required to pay any material additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 9.02, if any Lender’s obligations are suspended pursuant to Section 9.04, if any Lender becomes a Defaulting Lender or if any Lender defaults in its obligation to fund Accommodations hereunder, then the applicable Borrower may either, at its sole expense and effort, upon 10 days’ notice to such Lender and the Administrative Agent (i) repay all outstanding amounts due to such affected Lender (or such portion which has not been acquired pursuant to clause (ii) below) and thereupon such Commitment of the affected Lender shall be permanently cancelled and the aggregate Commitment shall be permanently reduced by the same amount and the Commitment of each of the other Lenders shall remain the same; or (ii) require such Lender to assign and delegate, without recourse (in accordance with and subject to the |
(a) | The applicable Borrower pays the Administrative Agent the assignment fee specified in Section 16.01(2)(e); |
(b) | the assigning Lender receives payment of an amount equal to the outstanding principal of its Accommodations Outstanding and participations in disbursements under Documentary Credits, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Credit Documents (including any breakage costs and amounts required to be paid under this Agreement as a result of prepayment to a Lender) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the applicable Borrower (in the case of all other amounts); |
(c) | in the case of any such assignment resulting from a claim for compensation under Section 9.01 or payments required to be made pursuant to Section 9.02, such assignment will result in a reduction in such compensation or payments thereafter; and |
(d) | such assignment does not conflict with Law. |
Section 9.04 | Illegality; Inability to Determine Rates |
(1) | If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make or maintain any Accommodations, or to determine or charge interest rates based upon any particular rate (other than any applicable default rate to the extent the same is not chargeable under Law) or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits as U.S. Dollars in the London interbank market (other than any applicable default rate to the extent the same is not chargeable under Law), then, on notice thereof by such Lender to the applicable Borrower through the Administrative Agent, any obligation of such Lender with respect to the activity that is unlawful shall be suspended until such Lender notifies the Administrative Agent and the applicable Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the |
(2) | If the Majority Lenders or Administrative Agent determine that for any reason in connection with any request for a LIBOR Advance or a conversion to or continuation thereof that (a) U.S. Dollar deposits are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such LIBOR Advance, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed LIBOR Advance, or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed LIBOR Advance does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the applicable Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBOR Advances shall be suspended until the Administrative Agent (upon the instruction of the Majority Lenders) revokes such notice. Upon receipt of such notice, the applicable Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of LIBOR Advances or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Advances in the amount specified therein. |
Section 10.01 | Right of Setoff. |
Section 11.01 | Sharing of Payments by Lenders |
(1) | If any Lender, by exercising any right of setoff or counterclaim or otherwise, obtains any payment or other reduction that might result in such Lender receiving payment or other reduction of a proportion of the aggregate amount of its Accommodations and accrued interest thereon or other obligations under a Facility greater than its pro rata share of such Facility as provided herein, then the Lender receiving such payment or other reduction shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Accommodations Outstanding and such other obligations of the other Lenders under such Facility, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Accommodations Outstanding and other amounts owing them under such Facility, provided that: |
(a) | if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; |
(b) | the provisions of this Section shall not be construed to apply to (x) any payment made by any Loan Party pursuant to and in accordance with the |
(c) | the provisions of this Section shall not be construed to apply to (w) any payment made while no Event of Default has occurred and is continuing in respect of obligations of the applicable Borrower to such Lender that do not arise under or in connection with the Credit Documents, (x) any payment made in respect of an obligation that is secured by a Permitted Encumbrance or that is otherwise entitled to priority over the applicable Borrower’s Obligations under or in connection with the Credit Documents, (y) any reduction arising from an amount owing to a Loan Party upon the termination of derivatives entered into between the Loan Party and such Lender, or (z) any payment to which such Lender is entitled as a result of any form of credit protection obtained by such Lender. |
(2) | The Loan Parties consent to the foregoing and agree, to the extent they may effectively do so under Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim and similar rights of Lenders with respect to such participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of such participation. |
Section 12.01 | Administrative Agent’s Claw back |
(1) | Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any advance of funds that such Lender will not make available to the Administrative Agent such Lender’s share of such advance, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with the provisions of this Agreement concerning funding by Lenders and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable advance available to the Administrative Agent, then the applicable Lender shall pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the applicable Borrower to but excluding the date of payment to the Administrative Agent, at a rate determined by the Administrative Agent in accordance with prevailing banking industry practice on interbank compensation. If such Lender pays such amount to the Administrative |
(2) | Payments by Borrowers; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the applicable Borrower prior to the date on which any payment is due to the Administrative Agent for the account of any Lender hereunder that the applicable Borrower will not make such payment, the Administrative Agent may assume that the applicable Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute the amount due to the Lenders. In such event, if the applicable Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at a rate determined by the Administrative Agent in accordance with prevailing banking industry practice on interbank compensation. |
Section 13.01 | Appointment and Authority |
(1) | (a) Each of the Lenders hereby irrevocably appoints (and confirms the prior existing appointment of) the Administrative Agent to act on its behalf as the Administrative Agent hereunder and under the other Credit Documents and authorizes (and confirms the prior existing authorization of) the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and no Loan Party shall have rights as a third party beneficiary of any of such provisions. |
(b) | The Administrative Agent and each of the Lenders hereby further irrevocably appoints (and confirms the prior existing appointment of) Barclays Bank PLC to act on its behalf as a Collateral Agent hereunder and under the other Credit Documents and authorizes (and confirms the prior existing authorization of) the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof, including acting as the agent of the Lenders for purposes of acquiring, holding and enforcing any and all Encumbrances on Collateral, |
(2) | Without prejudice to the foregoing, each Lender hereby irrevocably appoints each of the Administrative Agent (and any successor acting as Administrative Agent) and the Collateral Agent (and any successor acting as the Collateral Agent) to, as part of its duties as Administrative Agent and/or Collateral Agent, act, individually or collectively, as the hypothecary representative (within the meaning of Article 2692 of the Civil Code of Québec) for all present and future creditors of the Secured Obligations (in such capacity, the “Attorney”) to take and to hold on their behalf, and for their benefit, any hypothec granted pursuant to the laws of the Province of Quebec by any Loan Party, and to exercise such powers and duties which are conferred upon the Attorney under any such hypothec. |
Section 13.02 | Rights as a Lender |
Section 13.03 | Exculpatory Provisions |
(1) | Each of the Administrative Agent and the Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Credit Documents. Without limiting the generality of the foregoing, each of the Administrative Agent and the Collateral Agent: |
(a) | shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; |
(b) | shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent or the Collateral Agent, as applicable, is required to exercise as directed in writing by the Majority Lenders (or such other number or percentage of the Lenders as shall be expressly provided for in the Credit Documents), but the Administrative Agent and the Collateral Agent, as applicable, shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent or the Collateral Agent, as applicable, to liability or that is contrary to any Credit Document or Law; and |
(c) | shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrowers or any of their Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent, the Collateral Agent or any of its Affiliates in any capacity. |
(2) | The Administrative Agent and the Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Majority Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith is necessary, under the provisions of the Credit Documents) or (ii) in the absence of its own gross negligence or wilful misconduct as determined by a court of competent jurisdiction by a final non-appealable judgment. The Administrative Agent and the Collateral Agent shall be deemed not to have knowledge of any Default unless and until notice describing the Default is given to the Administrative Agent or the Collateral Agent, as applicable, by any Loan Party or a Lender. |
(3) | Except as otherwise expressly specified in this Agreement, the Administrative Agent and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, |
(4) | Notwithstanding anything to the contrary contained herein or in any other Credit Document, any duty, role, responsibility, action or inaction contemplated or required on the part of the Administrative Agent or the Collateral Agent in any Credit Document is expressly subject to the terms and conditions of (i) the Intercreditor Agreement and (ii) the intercreditor agreement contemplated by clause (o) of the definition of Permitted Debt and Barclays Bank PLC, in its capacity as an “intercreditor agent” thereunder, (a) shall be entitled to the rights, powers, benefits, protections, immunities and indemnities provided and afforded to the Administrative Agent or the Collateral Agent in any Credit Document and (b) is intended to be a third party beneficiary of this Section 13.03(4) with full rights and powers to enforce this Section 13.03(4) as if a party hereto. |
Section 13.04 | Reliance by Administrative Agent |
Section 13.05 | Indemnification of Agents |
Section 13.06 | Delegation of Duties |
Section 13.07 | Replacement of Administrative Agent or Collateral Agent |
(1) | The Administrative Agent or the Collateral Agent may resign at any time upon 30 days’ notice to the Lenders and the Borrowers. Upon receipt of any such notice of resignation, the Majority Lenders shall have the right, with the prior consent of Open Text (except during the occurrence or continuation of an Event of Default, during which no consent shall be required), to appoint a successor, which, in the case of the Administrative Agent, shall be a Lender having a Revolving Credit Commitment and having an office in Toronto, Ontario or an Affiliate of any such Lender with an office in Toronto. |
(2) | If no such successor shall have been so appointed by the Majority Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent or the retiring Collateral Agent, as applicable, gives notice of its resignation, then the retiring Administrative Agent or the retiring Collateral Agent, as applicable, may, but shall not be required to, with the prior consent of Open Text (such consent not to be unreasonably withheld or delayed), on behalf of the Lenders, appoint a successor Administrative Agent or successor Collateral Agent, respectively, meeting the qualifications specified in Section 13.07(1), provided that if the Administrative Agent or the Collateral Agent, as applicable, shall notify Open Text and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent or the retiring Collateral Agent, as applicable, shall be discharged from its duties and obligations hereunder and under the other Credit Documents (except that in the case of any collateral security held by the Administrative Agent or the Collateral Agent, as applicable, on behalf of the Lenders under any of the Credit Documents, the retiring Administrative Agent or the retiring Collateral Agent, as applicable, shall continue to hold such collateral security until such time as a successor Administrative Agent or successor Collateral Agent, respectively, is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent or the Collateral Agent, as applicable, shall instead be made by or to each Lender directly, until such time as the Majority Lenders appoint a successor Administrative Agent or the successor Collateral Agent, respectively, as provided for above in the preceding paragraph. |
Section13.08 | Non-Reliance on Agents and Other Lenders |
Section 13.09 | Collective Action of the Lenders |
Section 13.10 | No Other Duties, etc. |
Section 13.11 | Administrative Agent May File Proofs of Claim |
Section 13.12 | Certain ERISA Matters |
(1) | Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Lead Arranger and their respective Affiliates, and |
(a) | such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Accommodations or the Commitments, |
(b) | the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Accommodations, the Commitments and this Agreement, |
(c) | (i) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (ii) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Accommodations, the Commitments and this Agreement, (iii) the entrance into, participation in, administration of and performance of the Accommodations, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (iv) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Accommodations, the Commitments and this Agreement, or |
(d) | such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender. |
(2) | In addition, unless sub-clause (a) in the immediately preceding clause (1) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (d) in the immediately preceding clause (1), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Lead Arranger and their respective |
(a) | none of the Administrative Agent, the Lead Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Credit Document or any documents related to hereto or thereto), |
(b) | the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Accommodations, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), |
(c) | the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Accommodations, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations), |
(d) | the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Accommodations, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Accommodations, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and |
(e) | no fee or other compensation is being paid directly to the Administrative Agent or the Lead Arranger or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Accommodations, the Commitments or this Agreement. |
(3) | The Administrative Agent and the Lead Arranger hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Accommodations, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Accommodations or the Commitments for an amount less than the amount being paid for an interest in the Accommodations or the Commitments by such Lender or (iii) may receive fees or |
Section 14.01 | Notices, etc. |
(1) | Notices Generally. Except as provided in paragraph (2) below, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier to the addresses or telecopier numbers specified elsewhere in this Agreement or, if to a Lender, to it at its address or telecopier number specified in the Register or, if to a Loan Party other than Open Text, in care of Open Text. |
(2) | Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites, including SyndTrak) pursuant to procedures approved by the Administrative Agent and, in the case of the use of any web platform (such as SyndTrak) reasonably acceptable to Open Text, provided that the foregoing shall not apply to notices to any Lender if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrowers may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. |
(3) | Change of Address, Etc. Each Loan Party, the Administrative Agent, the Collateral Agent and the Lead Arranger may change its address or telecopier number for notices and other communications hereunder by notice to the other parties hereto and each Lender hereto may change its address or telecopier number for notices and other communications hereunder by notice to the Borrowers and Administrative Agent. |
Section 15.01 | Expenses; Indemnity: Damage Waiver |
(1) | Costs and Expenses. Each Loan Party shall pay (i) all reasonable out-of-pocket expenses incurred by each of the Administrative Agent, the Collateral Agent and their respective Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent and the Collateral Agent (limited to one U.S. counsel, one Canadian counsel and appropriate local counsel and in the case of any actual or perceived conflict of interest, one additional counsel to each affected Indemnitee and its related persons in each of Canada and the United States and, if necessary, appropriate local counsel), in connection with the syndication of the Revolving Credit Facility provided for herein and the preparation, negotiation, execution, delivery and administration of this Agreement and the other Credit Documents or of any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all reasonable out-of-pocket expenses incurred by each of the Administrative Agent, the Collateral Agent or any Lender, including the reasonable fees, charges and disbursements of counsel, in connection with the enforcement or protection of its rights in connection with this Agreement and the other Credit Documents, including its rights under this Section, or in connection with the Accommodations issued hereunder, including all such out-of-pocket |
(2) | Indemnification by the Loan Parties. Subject to the limitations contained in Section 15.01(1), each Loan Party shall indemnify, jointly and severally, each of the Administrative Agent, the Collateral Agent, the Lead Arranger, each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable costs and fees of any counsel for any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Credit Document or any agreement or instrument contemplated hereby or thereby, the performance or non-performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation or non-consummation of the transactions contemplated hereby or thereby, (ii) any Accommodation or the use or proposed use of the proceeds therefrom (including any refusal by the Documentary Credit Lender to honour a demand for payment under a Documentary Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Documentary Credit), (iii) any actual or alleged presence or Release of Hazardous Substances on or from any property owned or operated by any Loan Party, or any Environmental Liabilities related in any way to any Loan Party, or (iv) any actual claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by a Loan Party and regardless of whether any Indemnitee is a party thereto (the foregoing collectively being the “Indemnified Liabilities”), provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by a final non-appealable judgment to have resulted from the gross negligence or wilful misconduct of such Indemnitee. This Section 15.01(2) shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages, liabilities and related expenses arising from any non-Tax Indemnified Liability. |
(3) | Reimbursement by Lenders. To the extent that a Borrower for any reason fails to indefeasibly pay any amount required under paragraph (1) or (2) of this Section to be paid by it to the Administrative Agent (or any sub-Administrative Agent thereof), the Collateral Agent (or any sub-Collateral Agent thereof) or any Related Party of |
(4) | Waiver of Consequential Damages, Etc. To the fullest extent permitted by Law, the Loan Parties shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for indirect, consequential, punitive, aggravated or exemplary damages (as opposed to direct damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document or any agreement or instrument contemplated hereby (or any breach thereof), the transactions contemplated hereby or thereby, any Accommodation or the use of the proceeds thereof. |
(5) | Payments. All amounts due under this Section shall be payable promptly after demand therefor. A certificate of the Administrative Agent, the Collateral Agent or a Lender setting forth the amount or amounts owing to the Administrative Agent, the Collateral Agent, Lender or a sub-Administrative Agent, a sub-Collateral Agent or Related Party, as the case may be, as specified in this Section, including reasonable detail of the basis of calculation of the amount or amounts, and delivered to the Borrower shall be conclusive absent manifest error. |
Section 16.01 | Successors and Assigns |
(1) | Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and the Majority Lenders and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of paragraph (2) of this Section, (ii) by way of participation in accordance with the provisions of paragraph (6) of this Section, or (iii) by way of pledge or assignment of a security interest |
(2) | Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Accommodations Outstanding at the time owing to it); provided that: |
(a) | except if an Event of Default has occurred and is continuing or in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Accommodations Outstanding at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment being assigned (which for this purpose includes Accommodations Outstanding hereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Accommodations Outstanding of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than U.S. $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the applicable Borrower otherwise consents to a lower amount (each such consent not to be unreasonably withheld or delayed); |
(b) | each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Accommodations Outstanding or the Commitment assigned, except that this clause Section 16.01(2)(b) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate credits on a non-pro rata basis; |
(c) | any assignment of a Revolving Credit Commitment must be approved by the Documentary Credit Lenders (such approval not to be unreasonably withheld or delayed) unless the Person that is the proposed assignee is itself already a Lender with a Revolving Credit Commitment; |
(d) | any assignment must be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed) unless the proposed |
(e) | any assignment must be approved by each applicable Borrower, such approval not to be unreasonably withheld or delayed (provided that the applicable Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received notice thereof), unless the proposed assignee is itself already a Lender with the same type of Commitment or an Affiliate of a Lender or an Approved Fund or if an Event of Default has occurred and is continuing; and if the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of U.S. $3,500 (other than in the case of multiple contemporaneous assignments by a Lender to affiliate funds or Approved Funds, in which case only one such fee shall be payable), which fee shall not be for the account of the Loan Parties, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and |
(f) | in connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the applicable Borrower and the Administrative Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), and to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and participations in Documentary Credits and Swing Line Advances in accordance with its pro rata share; provided that notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. |
(3) | Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain at one of its offices in New York, New York a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Accommodations Outstanding owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers or any Lender (but, only in the case of a Lender, at the Administrative Agent’s office and with respect to any entry relating to such Lender’s Commitments, Advances, Documentary Credit obligations and their Obligations), at any reasonable time and from time to time upon reasonable prior notice. Upon written request by Open Text, the Administrative Agent shall deliver a copy of the Register to Open Text within 5 Business Days after any such request. |
(4) | Limitations upon Assignee Rights. Except in the case of an assignment made during the continuance of an Event of Default, no assignee shall be entitled to receive any greater payment under Section 9.01 and 9.02 than the applicable Lender would have been entitled to receive with respect to the Commitments and Accommodations assigned to such assignee, unless such assignment is made with each applicable Borrower’s prior written consent. |
(5) | Participations. Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, a Loan Party or any Affiliate of a Loan Party) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement(including all or a portion of its Commitment and/or the Accommodations Outstanding owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall |
(6) | Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 9.01 and 9.02, and in respect of any breakage costs payable hereunder, than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with each applicable Borrower’s prior written consent. |
(7) | Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. |
(8) | Participant Register. The applicable Lender, acting solely for this purpose as a non-fiduciary agent of each Borrower (solely for tax purposes), shall maintain a register on which it enters the name and address of each Participant, and the amount of each such Participant’s interest in such Lender’s rights and/or obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of the applicable rights and/or obligations of such Lender under this Agreement. No Lender shall have any obligation to disclose all or any portion of the Participant Register to any |
Section 17.01 | Amendments and Waivers |
(1) | Subject to Sections 17.01(2), (3) and (7) (in which cases, for clarification, those subsections shall exclusively apply and this subsection shall not apply), no acceptance, amendment or waiver of any provision of any of the Credit Documents, nor consent to any departure by the Borrowers or any other Person from such provisions, shall be effective unless in writing and approved by the Majority Lenders. Any acceptance, amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. |
(2) | Only written acceptances, amendments, waivers or consents signed by all affected Lenders shall (i) increase a Lender’s Commitment or subject any Lender to any additional obligation; (ii) reduce the principal or amount of, or (except as set forth in Section 3.04(3)) interest on, directly or indirectly, any Accommodation Outstanding or any Fees; (iii) postpone any date fixed for any payment of principal of, or interest on, any Accommodation Outstanding or any Fees (including, for the avoidance of doubt, the extension of the Relevant Repayment Date) ; (iv) change the percentage of the Commitments or the number or percentage of Lenders required for the Lenders, or any of them, or the Administrative Agent to take any action; (v) other than in connection with a Disposition permitted hereunder or where the Minimum Guarantor Coverage is complied with after giving effect to such termination or release, permit any termination of any of the guarantees required hereunder or the Security Documents or release any of the guarantees or the Collateral subject to the Security Documents; (vi) change the definition of Majority Lenders; (vii) amend Section 2.10; (viii) amend this Section 17.01(2); or (ix) amend the definition of “Interest Period” so as to permit intervals in excess of six months without regard to the availability of all affected Lenders. |
(3) | Only written acceptances, amendments, waivers or consents signed by the Administrative Agent, in addition to the Majority Lenders, shall affect the rights or duties of the Administrative Agent under the Credit Documents. |
(4) | Only written acceptances, amendments, waivers or consents signed by the Documentary Credit Lenders or Swing Line Lenders, as the case may be, in addition to the Majority Lenders, shall affect the rights or duties of such Lenders in their |
(5) | No Defaulting Lender or Affiliate thereof shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders or Affiliates thereof), except that (x) the Commitment of any Defaulting Lender or Affiliate may not be increased or extended, the maturity of any of its Advances may not be extended, the rate of interest on any of its Advances may not, except as set forth in Section 3.04(3), be reduced and the principal amount of any of its Borrowings may not be forgiven, in each case without the consent of such Defaulting Lender or Affiliate and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender or Affiliate in its capacity as a Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender or Affiliate. |
(6) | In the event that any Lender (a “Non-Consenting Lender”) fails to consent to any proposed amendment, modification, termination, waiver or consent with respect to any provision hereof or of any other Credit Document that requires the unanimous approval of all of the Lenders or the approval of all of the Lenders directly affected thereby, in each case in accordance with the terms of this Section, the Borrowers shall be permitted to replace such Non-Consenting Lender with a replacement financial institution satisfactory to the Administrative Agent, so long as the consent of the Majority Lenders shall have been obtained with respect to such amendment, modification, termination, waiver or consent; provided that (i) such replacement does not conflict with any Law, (ii) the replacement financial institution shall purchase, at par, all Accommodations and other amounts owing to the Non-Consenting Lender pursuant to the Credit Documents on or prior to the date of replacement, (iii) the replacement financial institution shall approve the proposed amendment, modification, termination, waiver or consent, (iv) the Borrowers shall be liable to the Non-Consenting Lender for any breakage costs if any LIBOR Advance owing to the Non-Consenting Lender shall be purchased other than on the last day of the Interest Period relating thereto, (v) the Non-Consenting Lender shall be obligated to make such replacement in accordance with the provisions of Section 16.01 (provided that the Borrowers shall be obligated to pay the registration and processing fee referred to in Section 16.01(2)(e)), (vi) until such time as such replacement shall be consummated, the Borrowers shall pay to the Non-Consenting Lender all additional amounts (if any) required pursuant to Article 10, as the case may be, (vii) the Borrowers shall provide at least three (3) Business Days’ prior notice to the Non-Consenting Lender, and (viii) any such replacement shall not be deemed to be a waiver of any rights that the Borrowers, the Administrative Agent or any other Lender shall have against the Non-Consenting Lender. In the event any Non-Consenting Lender fails to execute the agreements required under Section 16.01 in connection with an assignment pursuant to this Section, the Borrowers may, upon |
(7) | Only written acceptances, amendments, waivers or consents signed by the Administrative Agent and the Collateral Agent, in addition to the Majority Lenders, shall affect the rights or duties of the Collateral Agent under the Credit Documents. |
(8) | Reserved. |
(9) | Notwithstanding anything to the contrary contained in Section 17.01, if at any time after the Effective Date, the Administrative Agent and the Borrowers shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Credit Documents, then the Administrative Agent and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Credit Document. |
(10) | Notwithstanding anything to the contrary contained in this Section 17.01, the Administrative Agent and the Borrower may, without consent of any other Lender, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of Section 2.01(4), including any amendments necessary to establish Commitments made by a new tranche of Revolving Credit Commitments and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranche, in each case on terms consistent with Section 2.01(4). |
Section 17.02 | Judgment Currency. |
(1) | If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due to a Lender in any currency (the “Original Currency”) into another currency (the “Other Currency”), the parties agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures, such Lender could purchase the Original Currency with the Other Currency on the Business Day preceding the day on which final judgment is given or, if permitted by Law, on the day on which the judgment is paid or satisfied. |
(2) | The obligations of the Borrowers in respect of any sum due in the Original Currency from it to any Lender under any of the Credit Documents shall, notwithstanding any judgment in any Other Currency, be discharged only to the extent that on the Business |
Section 17.03 | Releases. |
Section 18.01 | Governing Law; Jurisdiction; Etc. |
(1) | Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the laws of Canada applicable in that Province. |
(2) | Submission to Jurisdiction. Each Loan Party irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the courts of the Province of Ontario, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Credit Document, or for recognition or enforcement of any judgment, and each of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Nothing in this Agreement or in any other Credit Document shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Credit Document against any Loan Party or its properties in the courts of any jurisdiction. |
(3) | Waiver of Venue. Each Loan Party irrevocably and unconditionally waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Credit Document in any court referred to in paragraph (2) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by Law, the defence of an inconvenient forum to the maintenance of such action or proceeding in any such court. |
Section 19.01 | Waiver of Jury Trial |
Section 20.01 | Counterparts; Integration; Effectiveness; Electronic Execution |
(1) | Counterparts; Integration; Effectiveness. This Agreement shall become effective pursuant to Section 25.01 of the Existing Credit Agreement when the conditions in Section 5.01 of this Agreement have been satisfied. |
(2) | Electronic Execution of Assignments. The words “execution,” “signed,” “signature, “and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based record keeping system, as the case may be, to the extent and as provided for in any Law, including Parts 2 and 3 of the Personal Information Protection and Electronic Documents Act (Canada), the Electronic Commerce Act, 2000 (Ontario) and other similar federal or provincial |
Section 20.02 | Severability |
Section 20.03 | Payments Set Aside. |
Section 20.04 | No Waiver; Remedies Cumulative; Enforcement. |
Section 20.05 | Affiliate Activities. |
Section 20.06 | No Advisory or Fiduciary Responsibility. |
Section 20.07 | Acknowledgment and Consent to Bail-In of EEA Financial Institutions. |
Section 20.08 | Acknowledgment Regarding Any Supported QFCs. |
Section 21.01 | Treatment of Certain Information: Confidentiality |
(1) | Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to it, its Affiliates and its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and representatives (in each of the foregoing cases, to the extent necessary to administer or enforce this Agreement and the other Credit Documents) (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential; provided that the Administrative Agent or any such Lender shall be responsible for compliance with this Section 21.01(1) by any of its Controlled Affiliates or its or any such Controlled Affiliates’ directors, officers or employees to the extent that any such Controlled Affiliate or its or any such Controlled Affiliates’ directors, officers or employees receives any Information), (b) to the extent requested by any regulatory authority having jurisdiction over it (including any self-regulatory authority), (c) to the extent required by Laws or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (ii) any actual or prospective counterparty (or its advisors) to any swap, derivative, credit-linked note or similar transaction relating to any Borrower and its obligations, or (iii) any actual or prospective provider of cash management services to any Loan Party, (g) (i) to a Person that is an investor or prospective investor in a Securitization that agrees that its access to information regarding the Loan Parties and the Accommodations is solely for purposes of evaluating an investment in such Securitization and who agrees to otherwise be bound by the provisions of this clause (1), (ii) to a Person that is a trustee, collateral manager, servicer, noteholder or secured party in a Securitization in connection with the administration, servicing and reporting on the assets serving as collateral for such Securitization and who agrees to otherwise be bound by the provisions of this clause (1); (iii) to a nationally recognized rating agency that requires access to information regarding the Loan Parties, the Accommodations and Credit Documents in connection with ratings issued with respect to a securitization facility collateralized, in part, by the Accommodations (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and shall agree to keep such Information confidential on the terms set forth in this clause (1)); (h) with the prior written consent of the applicable Borrower or (i) to the extent such Information (x) becomes publicly available other |
(2) | For purposes of this Section, “Information” means all information received from any Loan Party relating to any Loan Party or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a non-confidential basis prior to such receipt or that was already in the possession of the Administrative Agent or any Lender prior to such receipt. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information in accordance with its internal policies. In addition, the Administrative Agent may disclose to any agency or organization that assigns standard identification numbers to loan facilities such basic information describing the facilities provided hereunder as is necessary to assign unique identifiers (and, if requested, supply a copy of this Agreement), it being understood that the Person to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to make available to the public only such Information as such Person normally makes available in the course of its business of assigning identification numbers. |
(3) | In addition, and notwithstanding anything herein to the contrary, the Administrative Agent may provide to Loan Pricing Corporation and/or other recognized trade publishers information concerning the Borrowers and the Revolving Credit Facility established herein of the nature customarily provided to Loan Pricing Corporation and/or other recognized trade publishers of such information for general circulation in the loan market. |
(4) | Each Lender that is subject to the requirements of the USA PATRIOT Act hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrowers, which information includes the names and addresses of the Borrowers and other information that will allow such Lender to identify the Borrowers in accordance with the Act. |
Section 22.01 | Guarantee. |
Section 22.02 | Indemnity. |
Section 22.03 | Payment and Performance. |
(1) | If any Borrower fails or refuses to punctually make any payment or perform its Guaranteed Obligations, each Guarantor shall unconditionally render any such payment or performance upon demand in accordance with the terms of this Guarantee. |
(2) | Nothing but payment and satisfaction in full of the Guaranteed Obligations shall release any Guarantor from its obligations under this Guarantee, except for the disposition of such Guarantor in a transaction permitted by this Agreement. |
Section 22.04 | Continuing Obligation. |
(1) | whether any other Person or Persons (an “Additional Guarantor”) shall become in any other way responsible to any Guaranteed Party for, or in respect of all or any part of the Guaranteed Obligations; |
(2) | whether any such Additional Guarantor shall cease to be so liable; |
(3) | the enforceability, validity, perfection or effect of perfection or non-perfection of any security interest securing the Guaranteed Obligations, or the validity or enforceability of any of the Guaranteed Obligations; or |
(4) | whether any payment of any of the Guaranteed Obligations has been made and where such payment is rescinded or must otherwise be returned upon the occurrence of any action or event, including the insolvency or bankruptcy of any Loan Party or otherwise, all as though such payment had not been made. |
Section 22.05 | Guarantee Unaffected. |
Section 22.06 | Waivers. |
(1) | any defence based upon: |
(a) | the unenforceability or invalidity of all or any part of the Guaranteed Obligations, or any security or other guarantee for the Guaranteed Obligations or any failure of any Guaranteed Party to take proper care or act in a commercially reasonable manner in respect of any security for the Guaranteed Obligations or any collateral subject to the security, including in respect of any disposition of the Collateral or any set-off of any Loan Party’s bank deposits against the Guaranteed Obligations; |
(b) | any act or omission of a Loan Party or any other Person, including the Guaranteed Parties, that directly or indirectly results in the discharge or release of a Loan Party or any other Person or any of the Guaranteed Obligations or any security for the Guaranteed Obligations; or |
(c) | any Guaranteed Party’s present or future method of dealing with any Loan Party, any Additional Guarantor or any security (or any collateral subject to the security) or other guarantee for the Guaranteed Obligations; |
(2) | any right (whether now or hereafter existing) to require any Guaranteed Party, as a condition to the enforcement of this Guarantee including any indemnity provided for herein: |
(a) | to accelerate any of the Guaranteed Obligations or proceed and exhaust any recourse against a Loan Party or any other Person; |
(b) | to realize on any security that it holds; |
(c) | to marshall the assets of such Guarantor or any other Loan Party; or |
(d) | to pursue any other remedy that such Guarantor may not be able to pursue itself and that might limit or reduce such Guarantor’s burden; |
(3) | presentment, demand, protest and notice of any kind including notices of default and notice of acceptance of this Guarantee; |
(4) | all suretyship defences and rights of every nature otherwise available under Ontario law and the laws of any other jurisdiction; and |
(5) | all other rights and defences (legal or equitable) the assertion or exercise of which would in any way diminish the liability of such Guarantor under this Guarantee. |
Section 22.07 | Guaranteed Parties’ Right to Act. |
(1) | grant time, renewals, extensions, indulgences, releases and discharges to any Guarantor; |
(2) | take new or additional security (including other guarantees) from any Guarantor; |
(3) | discharge or partially discharge any or all existing security; |
(4) | elect not to take security from any Guarantor or not to perfect security; |
(5) | cease or refrain from, or continuing to, giving credit or making loans or advances to any Guarantor; |
(6) | accept partial payment or performance from any Guarantor or otherwise waive compliance by any Guarantor with the terms of any of the documents or security; |
(7) | assign any such document or security to any Person or Persons; |
(8) | deal or dispose in any manner (whether commercially reasonably or not) with any security (or any collateral subject to the security) or other guarantee for the Guaranteed Obligations; or |
(9) | apply all dividends, compositions and moneys at any time received from any Guarantor or others or from the security upon such part of the Guaranteed Obligations as each Guaranteed Party deems appropriate. |
Section 22.08 | Assignment and Postponement. |
Section 22.09 | Action or Inaction. |
Section 22.10 | Guaranteed Parties’ Rights. |
Section 22.11 | Demand. |
Section 22.12 | No Representations. |
Section 22. 13 | Keepwell. |
Section 22.14 | Intercreditor Agreement. |
Section 23.01 | Affirmation. |
OPEN TEXT CORPORATION, as Borrower | |||
By: | /s/ Madhu Ranganathan | ||
Name:Madhu Ranganathan | |||
Title:Executive Vice-President, Chief Financial Officer |
OPEN TEXT ULC, as Borrower | |||
By: | /s/ Madhu Ranganathan | ||
Name:Madhu Ranganathan | |||
Title:President and Treasurer |
OPEN TEXT HOLDINGS, INC., as Borrower | |||
By: | /s/ Madhu Ranganathan | ||
Name:Madhu Ranganathan | |||
Title:President and Treasurer |
OPEN TEXT SA ULC, as Guarantor | |||
By: | /s/ Madhu Ranganathan | ||
Name:Madhu Ranganathan | |||
Title:President and Treasurer |
OPEN TEXT CANADA LTD., as Guarantor | |||
By: | /s/ Madhu Ranganathan | ||
Name:Madhu Ranganathan | |||
Title:President and Treasurer |
VIGNETTE PARTNERSHIP, LP, by its general partner OPEN TEXT CANADA LTD., as Guarantor | |||
By: | /s/ Madhu Ranganathan | ||
Name:Madhu Ranganathan | |||
Title:President and Treasurer |
OPEN TEXT INC., as Guarantor | |||
By: | /s/ Madhu Ranganathan | ||
Name:Madhu Ranganathan | |||
Title:President and Treasurer |
GXS, INC., as Guarantor | |||
By: | /s/ Madhu Ranganathan | ||
Name:Madhu Ranganathan | |||
Title:President and Treasurer |
GXS INTERNATIONAL, INC., as Guarantor | |||
By: | /s/ Madhu Ranganathan | ||
Name:Madhu Ranganathan | |||
Title:President and Treasurer |
BARCLAYS BANK PLC, as Administrative Agent and Collateral Agent | |||
By: | /s/ Martin Corrigan | ||
Name: Martin Corrigan | |||
Title: Vice President |
ROYAL BANK OF CANADA, as Lender and Documentary Credit Issuer | |||
By: | /s/ Mike Elsey | ||
Name: Mike Elsey | |||
Title: Authorized Signatory |
BARCLAYS BANK PLC, as Lender | |||
By: | /s/ Martin Corrigan | ||
Name: Martin Corrigan | |||
Title: Vice President |
MORGAN STANLEY BANK, N.A., as Lender | |||
By: | /s/ Michael King | ||
Name: Michael King | |||
Title: Authorized Signatory |
CITIBANK, N.A., CANADIAN BRANCH, as Lender | |||
By: | /s/ Agha Murtaza | ||
Name: Agha Murtaza | |||
Title: Authorized Signatory |
HSBC BANK CANADA, as Lender | |||
By: | /s/ Ted Bertoia | ||
Name: Ted Bertoia | |||
Title: Vice President, Global Banking | |||
By: | /s/ My Le | ||
Name: My Le | |||
Title: Director, Global Banking |
MUFG BANK, LTD., CANADA BRANCH, as Lender | |||
By: | /s/ Craig Gardner | ||
Name: Craig Gardner | |||
Title: President |
NATIONAL BANK OF CANADA, as Lender | |||
By: | /s/ Michelle Fiebig | ||
Name: Michelle Fiebig | |||
Title: Director | |||
By: | /s/ David Torrey | ||
Name: David Torrey | |||
Title: Managing Director |
BANK OF MONTREAL, as Lender | |||
By: | /s/ Jeff Cowan | ||
Name: Jeff Cowan | |||
Title: Director |
ICICI BANK OF CANADA, as Lender | |||
By: | /s/ Sumit Chatterjee | ||
Name: Sumit Chatterjee | |||
Title: Chief Risk Officer | |||
By: | /s/ Lester Fernandes | ||
Name: Lester Fernandes | |||
Title: Assistant Vice President, Corporate & Commercial Banking |
BANK OF AMERICA, N.A., CANADA BRANCH, as Lender | |||
By: | /s/ Julie Griffin | ||
Name: Julie Griffin | |||
Title: Senior Vice President |
PNC BANK CANADA BRANCH, as Lender | |||
By: | /s/ Caroline Stade | ||
Name: Caroline Stade | |||
Title: Senior Vice President |
PNC BANK, NATIONAL ASSOCIATION as Lender | |||
By: | /s/ Kent B. Rice | ||
Name: Kent B. Rice | |||
Title: Vice President |
THE BANK OF NOVA SCOTIA, as Lender | |||
By: | /s/ Eddy Popp | ||
Name: Eddy Popp | |||
Title: Director | |||
By: | /s/ Eduardo E. Bejarano | ||
Name: Eduardo E. Bejarano | |||
Title: Associate |
CANADIAN IMPERIAL BANK OF COMMERCE, as Lender | |||
By: | /s/ Ben Fallico | ||
Name: Ben Fallico | |||
Title: Authorized Signatory | |||
By: | /s/ Cameron Scott | ||
Name: Cameron Scott | |||
Title: Authorized Signatory |
JPMORGAN CHASE BANK N.A., as Lender | |||
By: | /s/ Min Park | ||
Name: Min Park | |||
Title: Vice President |
WELLS FARGO BANK, N.A., CANADIAN BRANCH, as Lender | |||
By: | /s/ Jeff McInenly | ||
Name: Jeff McInenly | |||
Title: Director |
(a) | The date of the Borrowing, being a Business Day, is l . |
(b) | The aggregate amount of the Borrowing is l . |
(c) | The Type of Advance requested is l [specify Type of Advance]. |
(d) | The initial Interest Period applicable to the Borrowing is l[for LIBOR Advances]. |
[NAME OF APPLICABLE BORROWER] | |||
Per: | |||
Authorized Signatory |
(a) | If the Type of Advance is to be changed: |
(i) | the Type of Advance to be changed is l; |
(ii) | the new Type of Advance or Type of Accommodation is l ; |
(iii) | the date of such change, being a Business Day, is l ; and |
(iv) | the initial Interest Period applicable to such Advance is l months [if applicable]. |
(b) | If the Advance is a LIBOR Advance which is to continue as a LIBOR Advance for an additional Interest Period, the subsequent Interest Period applicable to such LIBOR Advance is l months. |
[NAME OF APPLICABLE BORROWER] | |||
Per: | |||
Authorized Signatory |
Lender | Revolving Credit Commitment | Documentary Credit Commitment | Swing Line Lender’s Commitment |
Barclays Bank PLC | $75,000,000 | $75,000,000 | |
Morgan Stanley Bank, N.A | $70,000,000 | ||
Citibank, N.A., Canadian branch | $70,000,000 | ||
Royal Bank of Canada | $70,000,000 | $35,000,000 | |
HSBC Bank Canada | $35,000,000 | ||
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Canada Branch | $35,000,000 | ||
National Bank of Canada | $35,000,000 | ||
Bank of Montreal | $70,000,000 | ||
ICICI Bank Canada | $10,000,000 | ||
Bank of America, N.A., Canada Branch | $70,000,000 | ||
PNC Bank, National Association | $35,000,000 | ||
The Bank of Nova Scotia | $35,000,000 | ||
Canadian Imperial Bank of Commerce | $35,000,000 | ||
JPMorgan Chase Bank N.A. | $70,000,000 | ||
Wells Fargo Bank, N.A., Canadian Branch | $35,000,000 | ||
Total Revolving Credit Commitments | $750,000,000 |
(c) | The date of the Issue is l, which is a Business Day. |
(d) | The Type of Documentary Credit is l. |
(e) | The aggregate Face Amount of such Documentary Credit is l [insert amount and currency]. |
(f) | The expiration date of such Documentary Credit is l, which is a Business Day. |
(g) | The name and address of the Beneficiary of the Documentary Credit is l. |
[NAME OF APPLICABLE DOCUMENTARY CREDIT BORROWER] | |||
Per: | |||
Authorized Signatory |
Type of Accommodation | Borrowing Notice or Issue Notice (Sections 3.02(1) and 4.02(1)) | Change (Section 3.03(3)) | Prepayment Section 2.07 |
ABR Advance | l Business Day | 1 Business Day | 3 Business Days |
LIBOR Advance | 3 Business Days | 3 Business Days | 3 Business Days |
Documentary Credits | 3 Business Days | — | — |
Swing Line Advance | Same Business Day | Same Business Day | Same Business Day |
Consolidated Net Leverage Ratio | LIBOR Advances (per annum); Documentary Credit Participation Fee | ABR Advances (per annum) | Facility Fee | Documentary Credit Fee |
Greater than or equal to 1.50:1.00 | 1.75% | 0.75% | 0.30% | 0.25% |
Less than 1.50:1.00 and greater than or equal to 1.00:1.00 | 1.50% | 0.50% | 0.25% | 0.25% |
Less than 1.00:1.00 | 1.25% | 0.25% | 0.15% | 0.25% |
Attention: | Robert Walsh |
Telephone: | (212) 526-6047 |
2. | I am the duly appointed [Chief Executive Officer] [Chief Financial Officer] of Open Text Corporation and as such I am providing this certificate for and on behalf of Open Text Corporation pursuant to the Credit Agreement. |
3. | I am familiar with and have examined the provisions of the Credit Agreement. |
4. | The financial statements most recently delivered pursuant to Section 7.01(l)(a)(i) or Section 7.01(l)(a)(ii), as applicable, of the Credit Agreement present fairly the financial position, results of operations and changes in financial position of the persons specified therein in accordance with GAAP (subject to normal year-end adjustments and the absence of any required notes to such financial statements). |
5. | The representations and warranties contained in Section 6.01 of the Credit Agreement are true and correct in all material respects as though made on the date hereof, except for those changes to the representations and warranties which have been disclosed to and accepted by the Administrative |
6. | As of the date hereof, no Default or Event of Default has occurred and is continuing. |
7. | As at the last day of the Period, the following ratio was as follows: |
(a) | Consolidated Net Leverage Ratio (7.03(1)(a)): ________________________ |
(Signature) | |||
(Name - please print) | |||
[Title] |
8. | Assignor: _______________________________________ |
9. | Assignee: _______________________________________________ |
10. | Administrative Agent: , as the administrative agent under the Credit Agreement |
11. | Credit Agreement: means the fourth amended and restated credit agreement dated as of [________], 2019 (as further amended, supplemented, replaced or restated from time to time, the “Credit Agreement”) among Open Text ULC, Open Text Holdings, Inc. and Open Text Corporation, as initial borrowers and certain Subsidiaries of Open Text Corporation |
12. | Assigned Interest: |
Aggregate Amount of Commitment/Advances for all Lenders3 | Amount of Commitment/Advances Assigned4 | Percentage Assigned of Commitment / Advances5 | CUSIP Number |
$ | $ | % | |
$ | $ | % | |
$ | $ | % |
Lender | Assigned Lender’s Commitment | Assigned Accommodations Outstanding |
$ | $ |
Attention: | Robert Walsh |
Telephone: | (212) 526-6047 |
1. | Jurisdictions of Incorporation, Etc. |
Borrowers: | |||
Open Text ULC | |||
Open Text Holdings Inc. | |||
Open Text Corporation | |||
Guarantors: | |||
Open Text SA ULC | Nova Scotia, Canada | ||
Open Text Canada Ltd. | Canada | ||
Vignette Partnership, LP | Delaware, USA | ||
Open Text Inc. | Delaware, USA | ||
GXS, Inc. | Delaware, USA | ||
GXS International, Inc. | Delaware, USA |
Subsidiaries: | |
GXS (ANZ) Pty Limited | |
Open Text Pty Limited | |
Xpedite Systems Pty Limited | |
Open Text Software Austria GmbH | Austria |
Open Text BeLux Branch - Belgian Branch of Open Text Coöperatief U.A. | Belgium |
Open Text Technologia Da Informacao (Brasil) Ltda. | Brazil |
8493642 Canada Inc. | Canada |
GXS Canada Inc. | Canada |
Open Text Canada Ltd. | Canada |
Open Text Corporation | Canada |
Cordys (Beijing) Co., Ltd. | China |
GXS (Shanghai) Software Development Limited | China |
Open Text Software Technology (Shanghai) Co., Limited | China |
Open Text Software Technology (Shanghai) Co., Ltd. - Beijing Branch | China |
Open Text Software Technology (Shanghai) Co., Ltd - Guangzhou Branch | China |
Stover Limited | Cyprus |
Open Text s.r.o. | Czech Republic |
GXS International, Inc. | Delaware, USA |
GXS, Inc. | Delaware, USA |
Open Text Holdings, Inc. | Delaware, USA |
Open Text Inc. | Delaware, USA |
Vignette Partnership, LP | Delaware, USA |
Open Text A/S | Denmark |
Open Text Egypt LLC | Egypt |
Acquisition U.K. Limited | England & Wales |
EasyLink Services International Limited | England & Wales |
GXS Limited | England & Wales |
GXS UK Holding Limited | England & Wales |
ICCM Professional Services Limited | England & Wales |
Metastorm Limited | England & Wales |
Metastorm UK Limited | England & Wales |
Open Text UK Limited | England & Wales |
Resonate KT Limited | England & Wales |
Sysgenics Limited | England & Wales |
Xpedite Systems (UK) Limited | England & Wales |
Actuate UK Limited | England & Wales |
Open Text OY | Finland |
Open Text SARL | France |
Open Text Document Technologies GmbH | Germany |
Open Text Software GmbH | Germany |
Recommind GmbH | Germany |
Global 360 China Limited | Hong Kong |
Open Text (Hong Kong) Limited | Hong Kong |
EasyLink Services Corporation India Private Limited | India |
GXS India Technology Centre Private Limited | India |
Open Text Corporation India Private Limited | India |
Open Text Technologies India Private Limited | India |
Vignette India Private Limited | India |
Open Text Ireland Limited | Ireland |
Open Text S.r.l. | Italy |
Open Text K.K. | Japan |
B2B Commerce (M) SDN. BHD. | Malaysia |
Open Text Software Technology (Malaysia) Sdn | Malaysia |
Open Text, S. de R.L. de C.V. | Mexico |
Open Text Coöperatief U.A. | Netherlands |
Open Text New Zealand Limited | New Zealand |
3304709 Nova Scotia Limited | Nova Scotia, Canada |
Open Text ULC | Nova Scotia, Canada |
Open Text SA ULC | Nova Scotia, Canada |
Open Text (Philippines), Inc. | Philippines |
Open Text Sp.z.o.o. | Poland |
Open Text Software S.L. - Sucursal em Portugal | Portugal |
Nstein Technologies Inc. | Quebec, Canada |
GXS Inc. | Republic of Korea |
Open Text LLC | Russian Federation |
EC1 Pte Ltd | Singapore |
Open Text (Asia) Pte Limited | Singapore |
Open Text South Africa (Pty) Limited | South Africa |
Open Text Software S.L. | Spain |
Open Text AB | Sweden |
GXS AG | Switzerland |
Open Text AG | Switzerland |
GXS Ltd | Thailand |
Open Text Middle East - Branch of Open Text Inc in the United Arab Emirates | United Arab Emirates |
Open Text Public Sector Solutions, Inc. | Virginia, United States |
2. | Current Canadian Chief Executive Office and Principal Place of Business and Domicile |
3. | Canadian Warehouses and Premises of Assets and Collateral |
4. | Locations of Duplicate Copies of Records re: Collateral Records kept in Quebec |
5. | Securities and Instruments |
Waterloo, Ontario | 275 Frank Tompa Drive, Waterloo, Ontario N2L 0A1 |
Brook Park, OH | 5347 West 161st Street, Brook Park, OH 44142 |
Richmond Hill, Ontario | 38 Leek Crescent, Richmond Hill, Ontario L4B 4N8 |
Tinton Falls, NJ | 100 Tormee Drive, Tinton Falls, NJ 07712 |
Gaithersburg, MD | 9711 Washingtonian Blvd., Ste. 700, Gaithersburg, MD 20878 |
Makati City, Philippines | Tower 2, RCBC Plaza 6819 Ayala Avenue corner Sen. Gil Puyat Avenue 1200 Makati City |
San Mateo, CA | Suite 400, Bay Meadows Station 3 Building, 2950 S. Delaware Street |
Alpharetta, GA | 11720 AmberPark Drive Suite 200 Alpharetta, GA 30009 |
Amstelveen, NL | Prof. E. M. Meijerslaan 1, 1183 AV, Amstelveen |
Ottawa, Ontario | 10 Rideau Street, Ottawa, Ontario K1N 9J1 |
Austin, TX | Four Barton Skyway, 1301 S Mopac Expressway, Ste 100, Austin, TX 78746 |
Putten, Netherlands | Vanenburgerallee 3 and 4, 3882 RH - Putten |
Bangalore, IN | Grd, 1st, 3rd and 4th Floors, Infinity, #436, Off Koramangala, Indiranagar, Intermediate Ring Road, Challanghatta, Domlur Cinnabar Hills, Embassy Golf Links Business Park, Challaghatta Centrum building, 4361, Off Koramangala Indiranagar Intermediate Ring Road, Challaghatta |
Konstanz, DE | Max-Stromeyer-Strasse 116, 78467 Konstanz |
Dallas, TX | 15725 Dallas Pky, Two Addison Circle |
Tucson, AZ | 155 North Rosemont Blvd, 1st floor, Tucson, Arizona 85711 |
Southfield, MI | Travellers Tower II, Suite 500 - 26533 Evergreen Rd |
• | 275 Frank Tompa Drive |
• | 5347 West 161st Street |
Business Entity | Jurisdiction |
8493642 Canada Inc. | Canada |
Acquisition U.K. Limited | England & Wales |
Cordys (Beijing) Co. Ltd. | China |
Cordys Information Systems B.V. - China Representation Office | China - Branch Office |
Easylink Services Corporation India Private Limited | India |
EC1 Pte. Ltd. | Singapore |
Global 360 China Limited | Hong Kong |
GXS (ANZ) Pty Ltd. | Australia |
GXS (Shanghai) Software Development Limited | China |
GXS Inc. | South Korea |
GXS India Technology Centre Private Limited | India |
GXS Limited | England & Wales |
GXS Ltd. | Thailand |
Open Text Technologia Da Informacao (Brasil) Ltda. | Brazil |
GXS UK Holding Limited | England & Wales |
Harbinger de Mexico S. de R.L. de C.V. | Mexico |
ICCM Professional Services Ltd. | England & Wales |
Metastorm Limited | England & Wales |
Metastorm UK Limited | England & Wales |
Nstein Technologies Inc. | Quebec |
Open Text (Asia) Pte Limited | Singapore |
Open Text (Hong Kong) Limited | Hong Kong |
Open Text A/S | Denmark |
Open Text AB | Sweden |
Open Text AG | Switzerland |
Open Text Coöperatief U.A. - BELGIUM Branch | Belgium |
Open Text Corporation India Private Limited | India |
Open Text Document Technologies GmbH | Germany |
Open Text Ireland Limited | Ireland |
Open Text K.K. | Japan |
Open Text LLC | Russian Federation |
Open Text Middle East (Open Text Inc. - United Arab Emirates Branch) | United Arab Emirates |
Open Text New Zealand Limited | New Zealand |
Open Text OY | Finland |
Open Text Pty Limited | Australia |
Open Text Public Sector Solutions, Inc | Virginia |
Open Text S.r.l. | Italy |
Open Text s.r.o. | Czech Republic |
Open Text SARL | France |
Open Text Software Austria GmbH | Austria |
Open Text Software S.L.U. | Spain |
Open Text Software S.L.U. - Portugal Branch | Portugal |
Open Text Software Technology (Shanghai) Co., Limited | China |
Open Text Software Technology (Shanghai) Co., Limited - BEIJING BRANCH | China |
Open Text South Africa Pty Limited | South Africa |
Open Text Sp.z.o.o. | Poland |
Open Text Technologies India Private Limited | India |
Open Text Venture Capital Investment Limited Partnership | Ontario |
Open Text, S. de R.L. de C.V. | Mexico |
Resonate KT Ltd. | England & Wales |
Vignette India Private Limited | India |
Xpedite Systems (UK) Limited | England & Wales |
Xpedite Systems Pty Limited | Australia |
3304709 Nova Scotia Ltd | Canada |
Open Text Software Technology (Shanghai) Co. Limited., Guangzhou Branch | China |
Open Text Egypt, LLC | Egypt |
Open Text Korea Co. Ltd. | South Korea |
Open Text Software Technology (Malaysia) SDN BHD | Malaysia |
Actuate UK Ltd | UK |
Easylink Services International Ltd | UK |
Sysgenics Ltd | UK |
Recommind Germany | Germany |
Covisint Software Services (Shanghai) Co. Ltd. | China |
Hightail Pvt. Ltd. | India |
Open Text Technology LLC | Russia |
Open Text Saudi Arabia LLC | KSA |
Catalyst Japan, LLC | Japan |
Liaison Technologies AB | Sweden |
Liaison Technologies Pte Ltd | Singapore |
Liaison Technologies Oy | Finland |
Liaison Technologies Ltd | UK |
1. | Debt under the Term B Credit Agreement |
2. | Up to US$15,000,000 (or the equivalent thereof in other currencies) under the Facility Letter Agreement dated December 17, 2015 between Open Text and HSBC Bank Canada and Master Indemnity and Reimbursement Agreement for Letters of Credit dated as of December 17, 2015 between Open Text and HSBC Bank Canada and Security Agreement dated as of December 17, 2015 between Open Text and HSBC Bank Canada, each as amended, supplemented, restated or modified from time to time (collectively, the “HSBC LC Facility”) |
3. | Up to US$15,000,000 (or the equivalent thereof in other currencies) under the Continuing Agreement for Standby Letters of Credit dated as of December 7, 2015 and Schedule 1 attached thereto between Open Text and Citibank N.A., Canadian Branch and Security Agreement dated as of December 7, 2015 between Open Text and Citibank N.A., Canadian Branch, each as amended, supplemented, restated or modified from time to time (collectively, the “Citi LC Facility”) |
1. | Encumbrances securing Debt under the Term B Credit Agreement |
2. | Encumbrances securing Debt under the HSBC LC Facility |
3. | Encumbrances securing Debt under the Citi LC Facility |
4. | Security interest on, among other things, contracts and accounts of Open Text Inc., assigned to De Lage Laden Financial Services, Inc. pursuant to that certain Master Assignment Agreement dated February 5, 2019 |
1. | EC1 Pte Ltd: Shareholders Agreement for Commerce Network Singapore Pte Ltd by and among GEIS International, Inc., ST Computer Systems & Services Ltd, and Commerce Network Singapore Ltd., dated September 29, 1998 (Restrictions on EC1 Pte. Ltd. (Singapore) to pay dividends, enter certain transactions with affiliates or take certain other actions without approval of minority shareholder) |
2. | GXS Ltd. (Korea): Stock Purchase Agreement, dated as of December 12, 1997, by and between the Digital Management Inc. Shareholders and GE Information Services, Inc. (Restrictions on GXS Inc. (Korea) to pay dividends, enter certain transactions with affiliates or take certain other actions without approval of minority shareholder) |
3. | The Term B Credit Agreement and the credit documents relating thereto |
Borrower | Lender | Amt (USD) |
Open Text (Hong Kong) Limited | Global 360 China Limited | 473,053 |
Open Text (Hong Kong) Limited | Open Text Inc. | 1,675,894 |
Open Text Coöperatief U.A. | Open Text Software GmbH | 10,993,500 |
Open Text Corporation | 3304709 Nova Scotia Limited, | 103,000,000 |
Open Text Corporation | Nstein Technologies Inc. | 3,033,903 |
Open Text Corporation | Open Text SA ULC | 309,261,280 |
Open Text Corporation | Vignette Partnership, LP | 48,349,014 |
Open Text Holdings, Inc. | Open Text Corporation | 295,637,249 |
Open Text Inc. | Open Text SA ULC | 20,815,252 |
Open Text LLC | Open Text Coöperatief U.A. | 12,887,360 |
Open Text Software GmbH | Open Text Document Technologies GmbH | 23,219,989 |
Open Text Software GmbH | Open Text SARL | 4,526,929 |
Open Text Software GmbH | Open Text Software Austria GmbH | 8,794,800 |
Open Text Software S.L. | Open Text SA ULC | 6,241,352 |
Open Text St. Petersburg | Open Text LLC | 384,729 |
Open Text UK Limited | Xpedite Systems (UK) Limited | 6,215,000 |
Open Text ULC | Open Text Corporation | 359,392,362 |
Open Text ULC | Open Text SA ULC | 99,725,422 |
Borrower | Lender | Amt (USD) |
Acquisition U.K. Limited | GXS International Branch | 33,919,678 |
Acquisition U.K. Limited | GXS Limited | 6,298,052 |
GXS Tecnologia da Informaco (Brasil) Ltda | GXS, Inc. | 3,650,000 |
GXS, Inc. | GXS International Branch | 224,583,124 |
GXS, Inc. | GXS Limited | 3,844,182 |
GXS, Inc. | GXS Tecnologia da Informaco (Brasil) Ltda | 2,319,524 |
GXS, Inc. | Open Text Pty Limited | 5,427,214 |
GXS, Inc. | Open Text SARL | 3,188,529 |
GXS, Inc. | Open Text Software GmbH | 4,642,048 |
Open Text UK Limited | GXS Limited | 5,966,400 |
IC Loan Total: | 1,608,465,839 | |
Interco Revolver | ||
Borrower | Lender | Amt (USD) |
Open Text Corporation | Open Text SA ULC | 500,000,000 |
Open Text Saudi Arabia | Open Text UK Limited | 499,990 |
IC Loan Total: | 500,499,990 |
Loan Party | Securities | % of Issued and Outstanding Securities | % of interest PLEDGED | |
Open Text Corporation | ||||
1. | Open Text (Hong Kong) Limited (Hong Kong) | Securities: 2 Ordinary Shares | 100% | 100% |
2. | 8493642 Canada Inc. (Canada) | Securities: 1 Common Share | 100% | 100% |
3. | Nstein Technologies Inc. (Quebec, Canada) | Securities: 1,101 Common Shares | 100% | 100% |
4. | Open Text (Asia) Pte. Ltd. (Singapore) | Securities: 12,850,000 Ordinary (USD) Shares 34,604,000 Ordinary shares | 100% 100% | 100% 100% |
5. | Open Text K.K. (Japan) | Securities: 409 Common Shares | 27.1941 | 100% |
6. | Open Text Pty Limited (Australia) | Securities: 15,378,263.00 Ordinary Shares | 100% | 100% |
7. | Vignette Partnership, LP (Delaware, USA) Limited partner - OTC | Securities: Class A units Class B units | 93% 41.12% | All |
8. | Open Text Coöperatief U.A. (Netherlands) - OK | Securities: 99 Membership Rights | 99% | All |
9. | Open Text Canada Ltd. (Canada | Securities: 2,027 Common Shares | 89.69% | All |
10. | Easylink Services Corporation India Private Limited (India) | Securities: 9,999 Common Shares | 99.99% | All |
11. | Open Text Technologies India Private Limited (India) | Securities: 9,999 Ordinary Shares | 99.99% | All |
12. | Open Text Corporation India Private Limited (India) | Securities: 30,735 Common Shares | 99.9967% | All |
13. | Vignette India Pvt Limited (India) | Securities: 1,664,600 Common Shares | 99.9999% | All |
14. | Open Text S. de R.L. de C.V. (Mexico) | Securities: 9,900,000 Class I Equity Parts | 99.99% | All |
15. | Open Text Venture Capital Investment Limited Partnership (Ontario, Canada) | Securities: 12,750,001 Limited Partner Units | 100% | All |
16. | Open Text Technologia da Informacao (Brasil) Ltda. | 27,786,988 Quota | 99.99 % | All |
17. | Open Text Software GmbH | 1 Ordinary share | 100% | |
VIGNETTE PARTNERSHIP, LP | ||||
1. | Open Text Holdings, Inc. (Delaware, USA) | 1,001 Common Shares | 100% | All |
2. | Open Text ULC (Nova Scotia, Canada) | 9,238 Common shares | 100% | |
OPEN TEXT INC. | ||||
1. | Open Text Middle East - DUBAI, UAE Branch of Open Text Inc. | Securities:1 Common | 100% | N/A |
OPEN TEXT ULC (Nova Scotia) | ||||
1. | Open Text SA ULC - ok | Securities: 4,573,693,880 Common Shares | 96% | All |
2. | Sysgenics Limited . (United Kingdom) | Securities: Ordinary Shares 320,250 Ordinary A Shares 140,000 | 100% | All |
3. | ICCM Professional Services Ltd. (United Kingdom) | Securities: 50 Common Shares | 100% | All |
OPEN TEXT HOLDINGS, INC. | ||||
1. | Open Text Inc. (Delaware, USA) | Securities: 1,716 Common Stock | 100% | All |
2. | Open Text Public Sector Solutions, Inc. (Virginia, USA) | Securities: 1,000 Common Stock | 100% | All |
3. | Open Text K.K (Japan) | 839 Common shares | 55.78 % | 100 % |
4. | GXS, Inc. (Delaware, USA) | 875 Class A Common Stock | 100% | |
5. Re | Recommind GmbH, Germany | All securities (Security designation and Quantity not mentioned in Englobe) | 100% | |
6. | Liaison Technologies OY (Finland) | 1,945,258 Ordinary shares | 100% | |
OPEN TEXT CANADA LTD. | ||||
1. | Vignette Partnership, LP (Delaware, USA) Open Text Canada Ltd. is general partner. | Securities Class A units : 7 Class B units : 100 | 7% 59.88 % | All All |
2. | Open Text Coöperatief U.A. (Netherlands) | Securities: 1 Membership Rights | 1% | All |
3. | Easylink Services Corporation India Private Limited (India) | Securities: 1 Common Share | 0.01% | All |
4. | Open Text Technologies India Private Limited (India) | Securities: 1 Ordinary Shares | 0.01% | All |
5. | Open Text Corporation India Private Limited (India) | Securities: 1 Common Shares | 0.0033% | All |
6. | Open Text S. de R.L. de C.V. (Mexico) | Securities: 1,000 Class I Equity Parts | 0.010 % | All |
7. | Open Text Technologia da Informacao (Brasil) Ltda. | Securities: 1 Quota | 0.0001% | All |
GXS, INC. | ||||
1. GXS International, Inc. (DE, USA) | Securities: 100 shares Common stock | 100% | All | |
2. Harbinger de Mexico, S. de C.V. de R.L. (dormant) | Securities: 100,000 Class 1 Shares | 100% | None | |
3. GXS Inc. (Korea) | Securities: 77,725 Common shares | 100% | None | |
4. GXS Ltd. (Thailand) | Securities: 391,300 Shares | 99.99% | None | |
5. GXS India Technology Centre Private Limited (India) | Securities: 1 Share | 0.0001% | None | |
GXS INTERNATIONAL, INC. | ||||
1. GXS UK Holding Limited | 1 Ordinary share | 100% | None | |
2. GXS India Technology Centre Private Limited | Securities: 999,999 Shares | 99.99% | None | |
3. Open Text (Philippines), Inc. | 2,506,995 Common Shares | 99.998% | None | |
4. EC1 Pte Ltd | Securities: 81 Ordinary Shares | 81% | None | |
5. Open Text K.K (Japan) | 256 Common shares | 17.0213 % | ||
OPEN TEXT SA ULC (Nova Scotia) | ||||
1. Global 360 Spain (in liquidation) | 3,200 Quota | 100% |