Execution Copy
IMAX CORPORATION
Exhibit 10.1
SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
by and between
IMAX CORPORATION,
as Borrower
- and -
THE GUARANTORS REFERRED TO HEREIN,
as Guarantors
- and -
THE LENDERS REFERRED TO HEREIN,
as Lenders
- and -
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Issuing Lender and Swingline Lender
- and -
WELLS FARGO SECURITIES, LLC,
as Sole Lead Arranger
- and -
WELLS FARGO SECURITIES, LLC and
JPMORGAN CHASE BANK, N.A.,
as Joint Bookrunners
- and -
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent
- and -
BANK OF AMERICA, N.A.,
HSBC BANK CANADA and
NATIONAL BANK OF CANADA,
as Co-Documentation Agents
Dated: March 25, 2022
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TABLE OF CONTENTS
Article 1 DEFINITIONS 2
Article 2 CREDIT FACILITIES 48
2.1 Revolving Loans 48
2.2 Letter of Credit Accommodations 52
2.3 Maturity Date 53
2.4 Optional Prepayments and Cancellation of Unused Revolving Loan Commitments 54
2.5 Hedge Transactions 55
2.6 Incremental Term Loans and Revolving Loans 55
Article 3 INTEREST, REQUESTS FOR REVOLVING LOANS, INCREASED COSTS AND FEES 60
3.1 Interest 60
3.2 Changed Circumstances 65
3.3 Compensation for Breakage or Non‑Commencement of Interest Periods 69
3.4 Increased Costs 70
3.5 Taxes 71
3.6 Mitigation Obligations; Replacement of Lenders 74
3.7 Commitment Fee 76
3.8 Defaulting Lenders 76
Article 4 CONDITIONS PRECEDENT 79
4.1 Conditions Precedent to the Availability of Revolving Loans and Letter of Credit Accommodations 79
4.2 Conditions Precedent to the Availability of All Loans and Letter of Credit Accommodations 81
Article 5 COLLECTION AND ADMINISTRATION 82
5.1 Borrower’s Loan Account 82
5.2 Statements 83
5.3 Payments 83
5.4 Authorization to Make Loans and Letter of Credit Accommodations 84
5.5 Use of Proceeds 84
5.6 Pro Rata Treatment 84
5.7 Obligations Several; Independent Nature of Lenders’ Rights 85
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Article 6 REPRESENTATIONS AND WARRANTIES 85
6.1 Existence, Power and Authority; Subsidiaries; Solvency 85
6.2 Financial Statements; No Material Adverse Change 85
6.3 Chief Executive Office; Collateral Locations 86
6.4 Priority of Liens; Title to Properties; Intellectual Property Matters 86
6.5 Tax Returns 87
6.6 Litigation 87
6.7 Compliance with Applicable Laws; Approvals 87
6.8 [Reserved] 88
6.9 Accuracy of Information 88
6.10 Status of Pension Plans and ERISA 88
6.11 Environmental Compliance 90
6.12 Specific Legislation 90
6.13 Material Subsidiaries 91
6.14 Employee Relations 91
6.15 [Reserved] 92
6.16 Absence of Defaults 92
6.17 Senior Indebtedness Status 92
6.18 Flood Hazard Insurance 92
6.19 Survival of Warranties; Cumulative 92
Article 7 AFFIRMATIVE COVENANTS 92
7.1 Maintenance of Existence 92
7.2 New Collateral Locations 93
7.3 Compliance with Laws 93
7.4 Payment of Taxes 93
7.5 Insurance 93
7.6 Financial Statements and Other Information 94
7.7 Intellectual Property 96
7.8 Operation of Pension Plans 96
7.9 ERISA 97
7.10 IP Collateral 97
7.11 Visits and Inspections 99
7.12 Material Subsidiaries and Real Property Collateral 100
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7.13 Grant of Equitable Mortgage by IMAX Barbados 101
7.14 Accounts 102
7.15 Flood Insurance Matters 102
7.16 Post-Closing Matters 103
Article 8 NEGATIVE COVENANTS 103
8.1 Merger, Sale of Assets, Dissolution, Etc 103
8.2 Liens 106
8.3 Debt 109
8.4 Investments 114
8.5 Restricted Payments 117
8.6 Transactions with Affiliates 119
8.7 [Reserved] 120
8.8 [Reserved] 120
8.9 No Material Changes 120
8.10 No Further Negative Pledges; Restrictive Agreements 120
Article 9 FINANCIAL COVENANT 121
9.1 Maximum Senior Secured Net Leverage Ratio 121
9.2 Minimum Liquidity 122
Article 10 EVENTS OF DEFAULT AND REMEDIES 122
10.1 Events of Default 122
10.2 Remedies 125
10.3 Agent May File Proofs of Claim 129
10.4 Credit Bidding 130
Article 11 ASSIGNMENT AND PARTICIPATIONS: APPOINTMENT OF AGENT 130
11.1 Assignment and Participations 130
11.2 Appointment of Agent 134
11.3 Agent’s Reliance, Etc 135
11.4 Agent as Lender 135
11.5 Lender Credit Decision 135
11.6 Indemnification 136
11.7 Failure to Act 136
11.8 Concerning the Collateral and the Related Financing Agreements 136
11.9 Reports and other Information; Disclaimer by Lenders 136
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11.10 Collateral Matters 137
11.11 Successor Agent and Resignation of Swingline Lender 138
11.12 Setoff and Sharing of Payments 139
11.13 Advances; Payments; Information; Actions in Concert 140
11.14 Approval of Lenders and Agent 143
11.15 Erroneous Payments 144
11.16 Rates 146
Article 12 GOVERNING LAW; JURISDICTION, ETC 146
12.1 Governing Law; Jurisdiction, Etc 146
12.2 Waiver of Notices 148
12.3 Amendments and Waivers 148
12.4 Waiver of Counterclaim 149
12.5 Indemnification 149
12.6 Costs and Expenses 150
12.7 Further Assurances 150
Article 13 MISCELLANEOUS 151
13.1 Notice 151
13.2 Partial Invalidity 152
13.3 Successors 152
13.4 Entire Agreement 152
13.5 Headings 152
13.6 Judgment Currency 152
13.7 Counterparts and Facsimile; Electronic Execution 153
13.8 Patriot Act Notice 154
13.9 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 154
13.10 Acknowledgement Regarding Any Supported QFCs 155
13.11 Divisions 156
13.12 Certain ERISA Matters 156
Article 14 ACKNOWLEDGMENT AND RESTATEMENT 157
14.1 [Reserved] 157
14.2 Acknowledgment of Security Interests 157
14.3 [Reserved] 158
14.4 Restatement 158
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INDEX TO
EXHIBITS AND SCHEDULES
Exhibit A | Form of Assignment and Assumption Agreement |
Exhibit B | Form of Compliance Certificate |
Exhibit C | Form of Omnibus Information Certificate |
Exhibit D | Form of Notice of Borrowing |
Exhibit E | Form of Notice of Conversion/Continuation |
Exhibit F | Form of Notice of Prepayment |
Exhibit G | Revolving Loan Commitments |
Schedule 6.1 | Corporate Structure Chart |
Schedule 7.16 | Post-Closing Matters |
Schedule 8.2 | Existing Liens |
Schedule 8.3(d) | Existing Debt |
Schedule 8.4 | Existing Loans and Advances |
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SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
This Sixth Amended and Restated Credit Agreement dated March 25, 2022 (as amended, restated, supplemented, extended or otherwise modified, this “Agreement”) is entered into by and between IMAX Corporation, a corporation incorporated pursuant to the laws of Canada, as Borrower (as defined below), the guarantors who are a party to this Agreement and who may become a party hereto pursuant to the terms hereof, as Guarantors (as defined below), the lenders who are a party to this Agreement and who may become a party hereto pursuant to the terms hereof, as Lenders (as defined below), and Wells Fargo Bank, National Association, a national banking association, as Agent (as defined below) for the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS Borrower and Congress Financial Corporation (Canada) (“Original Lender”) entered into a loan agreement dated February 6, 2004 which was amended pursuant to:
(collectively, the “Original Loan Agreement”);
WHEREAS Wachovia Capital Finance Corporation (Canada) (formerly known as Congress Financial Corporation (Canada)) as agent (the “Original Agent”) and lender, Borrower and Export Development Canada (“EDC”), as lender, amended and restated the Original Loan Agreement pursuant to an amended and restated credit agreement dated November 16, 2009 as amended by a first amendment to the amended and restated credit agreement dated January 21, 2011 (as amended, modified, supplemented, extended, renewed, restated or replaced from time to time, the “First Amended and Restated Credit Agreement”);
WHEREAS Wells Fargo Capital Finance Corporation Canada (formerly known as Wachovia Capital Finance Corporation (Canada)), as Original Agent and lender, Borrower and EDC, as lender, amended and restated the First Amended and Restated Credit Agreement pursuant to a second amended and restated credit agreement dated June 2, 2011 (as amended, modified, supplemented, extended, renewed, restated or replaced from time to time, the “Second Amended and Restated Credit Agreement”);
WHEREAS Agent (as successor agent to the Original Agent), Borrower and the lenders party thereto amended and restated the Second Amended and Restated Credit Agreement pursuant to a third amended
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and restated credit agreement dated February 7, 2013 (as amended, modified, supplemented, extended, renewed, restated or replaced from time to time, the “Third Amended and Restated Credit Agreement”);
WHEREAS Agent, Borrower and the lenders party thereto amended and restated the Third Amended and Restated Credit Agreement pursuant to a fourth amended and restated credit agreement dated March 3, 2015 (as amended February 22, 2016 and as further amended, modified, supplemented, extended, renewed, restated or replaced from time to time, the “Fourth Amended and Restated Credit Agreement”);
WHEREAS Agent, Borrower and the lenders party thereto amended and restated the Fourth Amended and Restated Credit Agreement pursuant to a fifth amended and restated credit agreement dated June 28, 2018 (as amended, modified, supplemented, extended, renewed, restated or replaced from time to time, including pursuant to the First Amendment to Fifth Amended and Restated Credit Agreement entered into on the First Amendment Effective Date, the Second Amendment to the Fifth Amended and Restated Credit Agreement entered into on the Second Amendment Effective Date, the Third Amendment to Fifth Amended and Restated Credit Agreement entered into on July 28, 2021 and the Fourth Amendment to Fifth Amended and Restated Credit Agreement entered into on December 13, 2021, the “Fifth Amended and Restated Credit Agreement”);
WHEREAS on the Restatement Effective Date (as defined below), the Agent, Borrower and Lenders desire to amend and restate the Fifth Amended and Restated Credit Agreement as set forth herein; and
WHEREAS each Lender is willing to (severally and not jointly) make loans and provide such financial accommodations to Borrower according to its Pro Rata Share (as defined below) on the terms and conditions set forth herein and Agent is willing to act as agent for Secured Parties on the terms and conditions set forth herein and the other Financing Agreements (as defined below);
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
DEFINITIONS
All references to the plural herein shall also mean the singular and to the singular shall also mean the plural unless the context otherwise requires. All references to Borrower, Credit Parties (as defined below), Guarantors, Lenders, Issuing Lender (as defined below) and Agent pursuant to the definitions set forth in the recitals hereto, or to any other person herein, shall include their respective successors and permitted assigns. The words “hereof”, “herein”, “hereunder”, “this Agreement” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not any particular provision of this Agreement and as this Agreement now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced. The word “including” when used in this Agreement shall mean “including, without limitation”. Unless otherwise expressly provided herein, any definition or reference to formation documents, governing documents, agreements (including the Financing Agreements) and other contractual documents or instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but
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only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Financing Agreement. References herein to any statute or any provision thereof include such statute or provision as amended, revised, re-enacted, and/or consolidated from time to time and any successor statute thereto. An Event of Default (as defined below) shall continue or be continuing until such Event of Default is waived in accordance with Section 12.3 or, without derogating from the cure rights, if any, provided to Credit Parties in Article 10 hereof, is cured, if such Event of Default is capable of being cured. Any accounting term used herein unless otherwise defined in this Agreement shall have the meanings customarily given to such term in accordance with GAAP (as defined below). If, after the Fifth A&R Closing Date (as defined below), there shall be any change in the application of the accounting principles used in preparation of Borrower’s financial statements as a result of any changes in GAAP including International Financial Reporting Standards becoming applicable to Borrower, which changes (a) result in a change in the method of calculation of, or (b) impact on, the financial covenant or other covenants applicable to Borrower found in this Agreement or the other Financing Agreements, and either the Borrower or the Required Lenders (as defined below) shall so request, Borrower and Agent shall promptly enter into negotiations in good faith in order to amend the financial covenant or other covenants so as to reflect equitably such changes with the desired result that the evaluations of Borrower’s financial condition shall be the same after such changes as if such changes had not been made. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, the effects of Accounting Standards Codification of the Financial Accounting Standards Board (“FASB ASC”) 825 and FASB ASC 470-20 (or any similar accounting principle permitting a Person (as defined below) to value its financial liabilities or Debt (as defined below) at the fair value thereof) on financial liabilities shall be disregarded. For the avoidance of doubt, and without limitation of the foregoing, Permitted Convertible Debt (as defined below) shall at all times prior to the repurchase, conversion or payment thereof be valued at the full stated principal amount thereof and shall not include any reduction or appreciation in value of the shares and/or cash deliverable upon conversion thereof. “Canadian Dollars” and the sign “CDN$” mean lawful money of Canada. “U.S. Dollars” and the sign “$” mean lawful money of the United States of America. All monetary amounts referred to in this Agreement are in U.S. Dollars unless otherwise stated. The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties (both real and personal property), including cash, securities, accounts and contract rights. For purposes of this Agreement, the following terms shall have the respective meanings given to them below:
“Accounts” as defined in the UCC as in effect in the State of New York.
“Acquired EBITDA” means, with respect to any Person or business acquired pursuant to an Acquisition for any period, the amount for such period of EBITDA of any such Person or business so acquired (determined using such definitions as if references to the Borrower and its Subsidiaries therein were to such Person or business), as calculated by the Borrower in good faith and which shall be factually supported by historical financial statements; provided, that, notwithstanding the foregoing, in determining Acquired EBITDA for any Person or business that does not have historical financial accounting periods which coincide with that of the financial accounting periods of the Borrower and its Subsidiaries (a) references to applicable measurement period in any applicable definitions shall be deemed to mean the same relevant period as the applicable period of determination for the Borrower and its Subsidiaries and (b) to the extent the commencement of any such measurement period shall occur during a fiscal quarter of such acquired Person or business (such that only a portion of such fiscal quarter shall be included in such period), Acquired EBITDA for the portion of such fiscal quarter so included in
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such period shall be deemed to be an amount equal to (x) Acquired EBITDA otherwise attributable to the entire fiscal quarter (determined in a manner consistent with the terms set forth above) multiplied by (y) a fraction, the numerator of which shall be the number of months of such fiscal quarter included in the relevant period and the denominator of which shall be actual months in such fiscal quarter.
“Acquisition” is defined in the definition of “Material Acquisition”.
“Actual EBITDA” is defined in the definition of Designated Period Actual EBITDA Notice.
“Adjusted Eurocurrency Rate” means, for any Interest Period, a rate per annum determined by the Agent pursuant to the following formula:
Adjusted Eurocurrency Rate = | Eurocurrency Rate for such Currency for such Interest Period | |
| 1.00-Eurocurrency Reserve Percentage |
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Agent” means Wells Fargo (or any of its branch offices or Affiliates), in its capacity as administrative and collateral agent hereunder, and any successor thereto appointed pursuant to Section 11.11.
“Agent’s Office” means, with respect to any Currency, the office of the Agent specified in or determined in accordance with the provisions of Section 13.1 with respect to such Currency.
“Agreed Currency” is defined in Section 13.6 hereof.
“Alternate Currency” means each Currency other than U.S. Dollars.
“Alternate Currency Loan” means each Revolving Loan denominated in an Alternate Currency.
“Alternate Currency Revolving Loan Sublimit” means an amount equal to the lesser of (a) $100,000,000 and (b) the aggregate amount of the Revolving Loan Commitment as then in effect. The Alternate Currency Revolving Loan Sublimit is part of, and not in addition to, the Revolving Loan Commitment.
“AM Calculation Date” has the meaning set forth in the definition of “Applicable Margin.”
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“Annualized EBITDA” means, solely for the purposes of determining compliance with the financial covenant in Section 9.1 and the Applicable Margin, for the applicable period ending immediately prior to the date on which a Designated Period Annualized EBITDA Notice is delivered, the sum of Actual EBITDA for the three (3) Fiscal Quarters ended immediately prior to the delivery of such Designated Period Annualized EBITDA Notice multiplied by four-thirds (4/3). In determining Annualized EBITDA clause (a) of the penultimate sentence of EBITDA and any applicable Replacement EBITDA Amounts shall be disregarded.
“Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules related to terrorism financing or money laundering, including any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations and orders of Governmental Authorities and all orders and decrees of all courts and arbitrators.
“Applicable Margin” means the corresponding percentages per annum as set forth below based on the Total Leverage Ratio:
Pricing Level | Total Leverage Ratio | Applicable Margin for Term SOFR Loans, CDOR Rate Loans, Eurocurrency Rate Loans and Letter of Credit Accommodations | Applicable Margin for U.S. Base Rate Loans and Canadian Prime Rate Loans | Applicable Margin for Commitment Fees |
I | Less than 1.00:1.00 | 1.00% | 0.25% | 0.25% |
II | Greater than or equal to 1.00:1.00 but less than 1.50:1.00 | 1.25% | 0.50% | 0.30% |
III | Greater than or equal to 1.50:1.00 but less than 2.00:1.00 | 1.50% | 0.75% | 0.35% |
IV | Greater than or equal to 2.00:1.00 | 1.75% | 1.00% | 0.375% |
The Applicable Margin shall be determined and adjusted quarterly on the date (each an “AM Calculation Date”) ten (10) Business Days after the day by which Borrower is required to provide a
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Compliance Certificate pursuant to Section 7.6(a)(iii) for the most recently ended Fiscal Quarter; provided that (a) notwithstanding anything to the contrary above, from and after the First Amendment Effective Date until the first AM Calculation Date after the date on which the Designated Period has ended, the Applicable Margin for Term SOFR Loans, CDOR Rate Loans, Eurocurrency Rate Loans and Letter of Credit Accommodations shall be 2.50%, the Applicable Margin for U.S. Base Rate Loans and Canadian Prime Rate Loans shall be 1.75% and the Applicable Margin for commitment fees shall be 0.375% and, thereafter the Pricing Level shall be determined by reference to the Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter preceding the applicable AM Calculation Date and (b) if Borrower fails to provide the Compliance Certificate as required by Section 7.6(a)(iii) for the most recently ended Fiscal Quarter preceding the applicable AM Calculation Date, the Applicable Margin from such AM Calculation Date shall be based on Pricing Level IV until such time as a Compliance Certificate is provided, at which time the Pricing Level shall be determined by reference to the Total Leverage Ratio as of the last day of the most recently ended Fiscal Quarter. The Applicable Margin shall be effective from one AM Calculation Date until the next AM Calculation Date. Any adjustment in the Applicable Margin shall be applicable to all Revolving Loans or Letter of Credit Accommodations then existing or subsequently made or issued.
Notwithstanding the foregoing, in the event that any financial statement or Compliance Certificate delivered pursuant to Section 7.6(a) is shown to be inaccurate (regardless of whether (i) this Agreement is in effect, (ii) the Revolving Loan Commitment is in effect, or (iii) any Loan or Letter of Credit Accommodation is outstanding when such inaccuracy is discovered or such financial statement or Compliance Certificate was delivered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (A) Borrower shall immediately deliver to Agent a corrected Compliance Certificate for such Applicable Period, (B) the Applicable Margin for such Applicable Period shall be determined as if the Total Leverage Ratio in the corrected Compliance Certificate were applicable for such Applicable Period, and (C) Borrower shall immediately and retroactively be obligated to pay to Agent the accrued additional interest and fees owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by Agent in accordance with Section 5.3. Borrower’s obligations under this paragraph shall survive the termination of the Revolving Loan Commitments and the repayment of all other Obligations hereunder.
“Approved Fund” means any Fund that is administered or managed by (a) an existing Lender, (b) an Affiliate of an existing Lender or (c) an entity or an Affiliate of an entity that administers or manages an existing Lender.
“Arranger” means Wells Fargo Securities, LLC, in its role hereunder as sole lead arranger and joint bookrunner.
“Asset Sale” is defined in Section 8.1(a).
“Assignment and Assumption Agreement” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.1), and accepted by Agent, in substantially the form attached hereto as Exhibit A or any other form approved by Agent.
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“Attributable Debt” means, on any date of determination, (a) in respect of any Capital Lease Obligation of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease, the capitalized amount or principal amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease Obligation.
“Available Tenor” means, as of any date of determination and with respect to any then-current Benchmark for any Currency, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.2(c)(iv).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means title 11 of the United Stated Code, as in effect from time to time.
“Benchmark” means, initially, with respect to any (a) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, U.S. Dollars, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark for U.S. Dollars, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.2(c)(i) and (b) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros or Canadian Dollars, Euribor or CDOR, respectively; provided that if a Benchmark Transition Event has occurred with respect to Euribor or CDOR, as applicable, or the then-current Benchmark for such Currency, then “Benchmark” means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.2(c)(i).
“Benchmark Replacement” means, with respect to any Benchmark Transition Event for any then-current Benchmark, the sum of: (a) the alternate benchmark rate that has been selected by the Agent and the Borrower as the replacement for such Benchmark giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the
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Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in the applicable Currency at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Financing Agreements.
“Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Currency.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark for any Currency:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to the then-current Benchmark for any Currency, the occurrence of one or more of the following events with respect to such Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or
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publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the Federal Reserve Bank of New York, the central bank for the Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, with respect to any Benchmark for any Currency, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means, with respect to any then-current Benchmark for any Currency, the period (if any) (x) beginning at the time that a Benchmark Replacement Date with respect to such Benchmark pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Financing Agreement in accordance with Section 3.2(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Financing Agreement in accordance with Section 3.2(c)(i).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 CFR § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
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“BIA” means the Bankruptcy and Insolvency Act (Canada).
“BMO” means Bank of Montreal.
“BMO and National Bank Facilities” means the debt facilities with respect to the issuance of:
“Borrower” means IMAX Corporation, a corporation incorporated pursuant to the laws of Canada.
“Business Day” means any day that (a) is not a Saturday, Sunday or other day on which the Federal Reserve Bank of New York is closed and (b) is not a day on which commercial banks in Charlotte, North Carolina or Toronto, Ontario are closed.
“Canadian Prime Rate” means the greater of (a) the rate of interest publicly announced from time to time by the Canadian Reference Bank as its prime rate in effect for determining interest rates on Canadian Dollar denominated commercial loans in Canada (which such rate is not necessarily the most favored rate of such reference bank and such reference bank may lend to its customers at rates that are at, above or below such rate) and (b) the annual rate of interest equal to the sum of (i) the CDOR Rate for a one (1) month interest period at such time plus (ii) 0.75% per annum.
“Canadian Prime Rate Loans” means any Loans or portion thereof on which interest is payable based on the Canadian Prime Rate in accordance with the terms hereof.
“Canadian Reference Bank” means a bank listed in Schedule I to the Bank Act (Canada) as Agent may from time to time designate, in its discretion.
“Canadian Revolving Loans” means Revolving Loans denominated in Canadian Dollars.
“Capital Lease Obligations” means all monetary obligations of Borrower and its consolidated Subsidiaries under a capital or finance lease and, for the purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP; provided that obligations or liabilities of any Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations would be required to be classified and accounted for as an operating lease under GAAP as existing on the Fifth A&R Closing Date that are recharacterized as Capital Lease Obligations due to a change in GAAP after the Fifth A&R Closing Date shall not be treated as Capital Lease Obligations for any purpose under this Agreement, but instead shall be accounted for as if they were operating leases for all purposes under this Agreement as determined under GAAP as in effect on the Fifth A&R Closing Date.
“Cash Equivalents” means (a) marketable direct obligations issued or unconditionally guaranteed by the government of Canada, the United States, the United Kingdom or any country that is a member of the European Union (as it is constituted on the Fifth A&R Closing Date) or any agency or instrumentality
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of any of the foregoing; (b) domestic and euro dollar certificates of deposit and time deposits, bankers’ acceptances and floating rate certificates of deposit issued by any commercial bank organized under the laws of Canada or the United States, any province or state thereof, any foreign bank, or its branches or agencies, the long-term indebtedness of which institution at the time of acquisition is rated A- (or better) by Standard & Poor’s Rating Services (“S&P”) or A3 (or better) by Moody’s Investors Service, Inc. (“Moody’s”), and which deposits are fully protected against currency fluctuations for any such deposits with a term of more than 90 days; (c) shares of money market, mutual or similar funds having assets in excess of $100,000,000 and the investments of which are limited to (i) investment grade securities (i.e., securities rated at least BBB by S&P or rated at least Baa by Moody’s) and (ii) commercial paper of Canadian, U.S. and foreign banks and bank holding companies and their subsidiaries and Canadian, U.S. and foreign finance, commercial industrial or utility companies which, at the time of acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody’s (all such institutions being, “Qualified Institutions”); (d) commercial paper of Qualified Institutions; (e) auction rate securities (long-term, variable rate bonds tied to short-term interest rates) that are rated AAA by S&P and Aaa by Moody’s; and (f) in the case of any Subsidiary organized under the laws of a country other than the United States, investments of comparable tenor and credit quality to those described in the foregoing clauses customarily used in any country where such Subsidiary is organized or in which the investment is made; provided that the maturities of such Cash Equivalents shall not exceed 365 days from the date of acquisition.
“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card (including purchase cards), electronic funds transfer and other cash management arrangements.
“Cash Management Bank” means any Person that (a) at the time it enters into a Cash Management Agreement, is a Lender, an Affiliate of a Lender, Agent or an Affiliate of Agent, in its capacity as a party to such Cash Management Agreement or (b) within thirty days after the time such Person enters into the applicable Cash Management Agreement, becomes a Lender, an Affiliate of a Lender, Agent or an Affiliate of Agent.
“CCAA” means the Companies’ Creditors Arrangement Act (Canada).
“CDOR” has the meaning set forth in the definition of “CDOR Rate.”
“CDOR Rate” means, the greater of (a) for the applicable Interest Period and as determined on the day of the applicable borrowing, conversion or continuation, a rate of interest per annum equal to the stated average appearing on the “CDOR Page” of Refinitiv Benchmarks Services (UK) Limited, as of 10:15 a.m. (Toronto time) on such day (or if such day is not a Business Day, then on the immediately preceding Business Day), of the rates per annum applicable to Canadian Dollar bankers’ acceptances (“CDOR”) having a term equal to such Interest Period, rounded to the nearest 1/100th of 1% (with 0.005% being rounded up); provided, however, that if, for any reason, such rate does not appear on the “CDOR Page” (or applicable successor page) on such day as contemplated, then the “CDOR Rate” on such day shall be calculated as the arithmetic average of the rates per annum applicable to Canadian Dollar bankers’ acceptances having a term equal to such Interest Period quoted by the banks listed in Schedule I of the Bank Act (Canada) as of 10:15 a.m. (Toronto time) on such day (or if such day is not a Business Day, then on the immediately preceding Business Day) and (b) the Floor. Each calculation by Agent of the CDOR Rate shall be conclusive and binding for all purposes, absent manifest error.
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“CDOR Rate Loans” means any Loans or portion thereof on which interest is payable by reference to the CDOR Rate in accordance with the terms hereof.
“Change in Law” means the occurrence, after the Restatement Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) compliance by Agent, any Lender or the Issuing Lender with any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, implemented or issued.
“Change of Control” means any of the following events:
(a) a “person” or “group” (within the meaning of Section 13(d)(3) of the U.S. Securities Exchange Act of 1934), other than the Borrower or its wholly owned Subsidiaries, or their respective employee benefit plans, files any report with the Securities and Exchange Commission indicating that such person or group has become the direct or indirect “beneficial owner” (as defined below) of Equity Interests representing more than 50% of the voting power of all of the Borrower’s Equity Interests; provided, however, that no “person” or “group” will be deemed to be the beneficial owner of any securities tendered pursuant to a tender or exchange offer made by or on behalf of such “person” or “group” until such tendered securities are accepted for purchase or exchange under such offer; or
(b) the consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, to any Person, other than solely to one or more of the Borrower’s wholly owned Subsidiaries; or (ii) any transaction or series of related transactions in connection with which (whether by means of amalgamation, merger, arrangement, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the voting power of all of the Borrower’s Equity Interests are exchanged for, converted into, acquired for or constitute solely the right to receive, other securities, cash or other property (other than changes resulting solely from a subdivision or combination, or a change in par value, of such Equity Interests); provided, however, that any amalgamation, merger, arrangement, consolidation, share exchange or combination of the Borrower pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined below) all classes of the Borrower’s Equity Interests entitled to vote immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than 50% of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed not to be a Change of Control pursuant to this clause (b).
For the purposes of this definition, whether a Person is a “beneficial owner,” whether shares are “beneficially owned” and percentage beneficial ownership will be determined in accordance with Rule 13d-3 under the U.S. Securities Exchange Act of 1934.
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“Code” means the United States Internal Revenue Code of 1986, as amended.
“Collateral” means, collectively, all of the property and assets, real or personal, tangible or intangible, now existing or hereafter acquired by any Credit Party that may at any time be or become subject to a Lien in favor of Agent to secure any or all of the Obligations; provided that, for greater certainty, any and all assets of IMAX China Multimedia and IMAX China Theatre, the Mississauga Property, the Playa Vista Property and any other property and assets expressly excluded from the “Collateral” pursuant to the terms of the applicable Financing Agreements shall be excluded from, and not form part of, the Collateral.
“Commitments” means, collectively, the Revolving Loan Commitments and the Incremental Term Loan Commitments (if any).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“Compliance Certificate” means the compliance certificate substantially in the form attached hereto as Exhibit B or such other form as may be reasonably approved by the Agent.
“Conforming Changes” means, with respect to the use or administration of an initial Benchmark or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “U.S. Base Rate”, the definition of “Canadian Prime Rate”, the definition of “CDOR Rate”, the definition of “CDOR”, the definition of “Business Day,” the definition of “Eurocurrency Banking Day,” the definition of “SOFR Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 3.3 and other technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Financing Agreements).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Total Assets” means, with respect to Borrower and its consolidated Subsidiaries as of any date, the amount which, in accordance with GAAP, would be set forth under the heading “Total Assets” (or any like heading) on a consolidated balance sheet of Borrower and its Subsidiaries, as of the end of the most recent consolidated balance sheet of Borrower and its Subsidiaries, determined on a Pro Forma Basis.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
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“Control Agreement” means an agreement in form and substance reasonably satisfactory to the Agent establishing the Agent’s “Control” (as defined in the UCC or any comparable concept under the PPSA) with respect to, or otherwise perfecting (in any comparable manner as required under the laws of Canada) the Agent’s Lien on, any Deposit Account or Securities Account as security for the Obligations.
“Credit Parties” means, collectively, Borrower and Guarantors.
“Currency” means Canadian Dollars, Euros and U.S. Dollars and any other freely transferable currency to the extent that such currency is approved by Agent and each Revolving Lender providing the Revolving Loan in such currency.
“Debt” means, with respect to any Person at any time and without duplication:
For all purposes hereof, the Debt of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person
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is a general partner or a joint venturer, (i) unless such Debt is expressly made non-recourse to such Person or (ii) except to the extent such Person’s liability for such Debt is otherwise limited in recourse or amount, but only up to the amount of the value of the assets to which recourse is limited or the amount of such limit. In respect of Debt of another Person secured by a Lien on the assets of the specified Person, the amount of such Debt as of any date of determination will be the lesser of (x) the fair market value of such assets as of such date and (y) the amount of such Debt as of such date. The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Hedge Termination Value thereof as of such date. Debt shall not include, in the case of Borrower and its Subsidiaries, intercompany loans, intercompany advances, or intercompany Debt having a term not exceeding 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business. Notwithstanding the foregoing, the obligations of the Borrower under any Permitted Warrant Transaction shall not constitute Debt so long as the terms of such Permitted Warrant Transaction provide for “net share settlement” (or substantially equivalent term) as the default “settlement method” (or substantially equivalent term) thereunder. For purposes hereof, the amount of any Permitted Convertible Debt shall be the aggregate stated principal amount thereof without giving effect to any obligation to pay cash or deliver shares with value in excess of such principal amount, and without giving effect to any integration thereof with any Permitted Bond Hedge Transaction pursuant to U.S. Treasury Regulation § 1.1275-6.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means an event, circumstance or omission which, with any of the giving of notice or a lapse of time or both would constitute an Event of Default.
“Defaulting Lender” means, subject to Section 3.8(b), any Lender that (a) is a Non-Funding Lender, (b) has notified the Borrower, the Agent, the Issuing Lender or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Agent or the Borrower, to confirm in writing to the Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Insolvency Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the FDIC or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets (except, in the case of immunity from
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attachment of assets, to the extent the liabilities of such Lender (including judgments against it) are otherwise paid out of, or payable from, a fund of a Governmental Authority which was created and is then maintained for such purpose and is funded in an amount at least sufficient to satisfy such liabilities) or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.8(b)) upon delivery of written notice of such determination to the Borrower, the Issuing Lender, the Swingline Lender and each Lender.
“Deposit Accounts” as defined in the UCC as in effect in the State of New York.
“Designated Period” means the period commencing on the First Amendment Effective Date and ending on the earlier to occur of (a) the date on which the duly executed and completed Compliance Certificate required to be delivered under Section 7.6(a)(iii) is delivered to the Agent for the Fiscal Quarter ending December 31, 2022 (together with the accompanying financial statements required to be delivered pursuant to Section 7.6(a)(ii)), and such certificate demonstrates compliance with Section 9.1 and (b) so long as no Default or Event of Default has occurred and is continuing, to the extent the Borrower delivers a Designated Period Suspension Notice, the date on which the applicable Designated Period Suspension Notice and related Compliance Certificate and financial statements are delivered.
“Designated Period Actual EBITDA Notice” means a one-time written notice to the Agent, in form and substance reasonably satisfactory to the Agent, identifying itself as a “Designated Period Actual EBITDA Notice” and confirming the Borrower’s agreement to calculate EBITDA for the four Fiscal Quarter period ending on the last day of the Fiscal Quarter ended immediately prior to the date of delivery of such notice and for each subsequent four Fiscal Quarter period thereafter based on the actual EBITDA as determined without giving effect to the last sentence of EBITDA and without reference to any Annualized EBITDA or Replacement EBITDA Amounts (EBITDA as so calculated, “Actual EBITDA”). For the avoidance of doubt, (a) the Designated Period Actual EBITDA Notice may only be delivered by the Borrower one time and shall be delivered concurrently with the delivery of the duly executed and completed Compliance Certificate pursuant to Section 7.6(a)(iii) (together with the accompanying financial statements required to be delivered pursuant to Section 7.6(a)(i) or (ii), as applicable) with respect to the Fiscal Quarter or Fiscal Year ended immediately prior to the date such notice is delivered which demonstrates that the Senior Secured Net Leverage Ratio, as of such quarter end and calculated using Actual EBITDA, was equal to or less than 3.25 to 1.00, (b) if the Borrower delivers a Designated Period Actual EBITDA Notice it may not thereafter revoke such notice or deliver a Designated Period Annualized EBITDA Notice and (c) no Designated Period Actual EBITDA Notice may be submitted after the end of the Designated Period.
“Designated Period Annualized EBITDA Notice” means a one-time written notice to the Agent, in form and substance reasonably satisfactory to the Agent, identifying itself as a “Designated Period Annualized EBITDA Notice” and confirming the Borrower’s agreement to calculate EBITDA for the four Fiscal Quarter period ending on the last day of the Fiscal Quarter ended immediately prior to the date of delivery of such notice based on Annualized EBITDA and for each subsequent four Fiscal Quarter period thereafter based on Actual EBITDA. For the avoidance of doubt, (a) the Designated Period Annualized EBITDA Notice may only be delivered by the Borrower one time and shall be delivered concurrently with the delivery of the duly executed and completed Compliance Certificate
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pursuant to Section 7.6(a)(iii) (together with the accompanying financial statements required to be delivered pursuant to Section 7.6(a)(i) or (ii), as applicable) with respect to the Fiscal Quarter or Fiscal Year ended immediately prior to the date such notice is delivered which demonstrates that the Senior Secured Net Leverage Ratio, as of such quarter end and calculated using Annualized EBITDA, was equal to or less than 3.25 to 1.00, (b) if the Borrower delivers a Designated Period Annualized EBITDA Notice it may not thereafter revoke such notice or deliver a Designated Period Actual EBITDA Notice and (c) no Designated Period Annualized EBITDA Notice may be submitted after the end of the Designated Period.
“Designated Period Suspension Notice” means either a Designated Period Actual EBITDA Notice or a Designated Period Annualized EBITDA Notice.
“Disposed EBITDA” means, with respect to any Person or business that is sold or disposed of in an Asset Sale during any period, the amount for such period of EBITDA of any such Person or business subject to such Asset Sale (determined using such definitions as if references to Borrower and its Subsidiaries therein were to such Person or business), as calculated by the Borrower in good faith.
“Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interest into which they are convertible or for which they are exchangeable) or upon the happening of any event or condition, (a) mature or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests) (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), in whole or in part, (c) provide for the scheduled payment of dividends in cash or (d) are or become convertible into or exchangeable for Debt or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the Maturity Date.
“Dollar Equivalent” means, at any time for the determination thereof, with respect to an amount of an Alternate Currency, the amount of U.S. Dollars which could be purchased with such amount of such Alternate Currency at the spot exchange rate therefor as quoted by Agent as of 11:00 a.m. (New York time) on the date two (2) Business Days prior to the date of any determination thereof for purchase on such date.
“EBITDA” means, for any period with respect to Borrower and its consolidated Subsidiaries, an amount equal to:
(a) consolidated net income or net loss for such period as determined in accordance with GAAP; provided, that in calculating consolidated net income or net loss for such period, there shall be excluded the net income (or loss) of any Person that is not a Subsidiary, in which the Borrower or any of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid in cash to the Borrower or any of its Subsidiaries by dividend or other distribution during such period,
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plus the sum, without duplication, of the amounts for such period of the following (but in each case only to the extent deducted in determining consolidated net income or net loss for such period):
(i) loss from equity accounted investments and cash fees and expenses incurred in connection with Permitted Investments, recapitalization, the issuance of Equity Interests and the incurrence, repayment or exchange of Debt permitted to be incurred hereunder (including a refinancing thereof), in each case, whether or not successful;
(ii) provisions for Taxes based on income, profits or capital, including state, franchise and similar Taxes;
(iii) total interest expense;
(iv) total depreciation expense;
(v) total amortization expense (including amortization or write-off of deferred financing fees);
(vi) write-downs relating to inventories, financing receivables, accounts receivable, property, plant and equipment, joint revenue sharing arrangements, other intangible assets, other assets or investments and film assets, as approved by Agent, acting consistent with past practice or as otherwise agreed by Agent;
(vii) stock option based compensation expenses and other non-cash equity-based compensation expenses;
(viii) the amount of any restructuring charges or reserves (which, for the avoidance of doubt, shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, costs related to the start up, closure, relocation or consolidation of facilities and costs to relocate employees), as approved by Agent, acting consistent with past practice or as otherwise agreed by Agent;
(ix) curtailment of post-retirement benefits;
(x) expenses during such period relating to pension payments;
(xi) the amount of any extraordinary, unusual or non-recurring charges, expenses or losses, as approved by Agent, acting consistent with past practice or as otherwise agreed by Agent;
(xii) other non-cash charges, expenses and losses as approved by Agent, acting consistent with past practice or as otherwise agreed by Agent; and
(xiii) transaction costs in connection with the Financing Agreements;
minus
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(b) the sum, without duplication, of the amounts for such period of the following (but only to the extent included in determining consolidated net income or net loss for such period):
(i) interest income;
(ii) any credit for income tax;
(iii) any gains from equity accounted investments;
(iv) the amount of any extraordinary, unusual or non-recurring gains; and
(v) other non-cash gains and the amount of any non-cash item that was added back in a prior period that becomes a cash item in such period.
For purposes of calculating compliance with the financial covenant in Section 9.1 hereof and the Fixed Incremental Amount, EBITDA shall be calculated (a) without taking into account any contribution to consolidated net income or net loss with respect to (i) any Future Permitted Transaction and (ii) non-cash equity income or loss from joint ventures and (b) to reflect the reduction in EBITDA allocable to minority interests owned in any Subsidiary by arm’s length third Persons.
Notwithstanding the foregoing or anything to the contrary contained herein, solely for the purposes of determining compliance with the financial covenant in Section 9.1 and, with respect to clause (b), the Applicable Margin, (a) unless and until the Borrower has delivered a Designated Period Suspension Notice, EBITDA for the Fiscal Quarters ending September 30, 2021 and December 31, 2021 shall be $32,430,000 and $46,955,000, respectively (each, respectively, a “Replacement EBITDA Amount”) and (b) in the event that the Borrower has delivered a Designated Period Annualized EBITDA Notice, EBITDA shall be temporarily annualized using Annualized EBITDA as set forth in the definition of Designated Period Annualized EBITDA Notice.
EBITDA shall be determined on a Pro Forma Basis.
“EDC Indemnity Agreement” means the indemnity agreement dated May 3, 2010 given by Borrower in favor of EDC, as amended, modified, supplemented, extended, renewed, restated or replaced from time to time.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
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“Electronic Record” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.
“Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.
“Eligible Transferee” means
provided, however, that,
in each case of the foregoing clauses (i), (ii), (iii) and (iv) shall qualify as an Eligible Transferee (each, a “Prohibited Transferee”).
“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, land surface and subsurface strata and natural resources such as wetlands, flora and fauna.
“Environmental Claim” means any investigation, notice, notice of violation or of potential responsibility, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, natural resources or the environment.
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“Environmental Laws” means with respect to any Person, all Applicable Laws, permits, licenses and consent decrees imposed by a Governmental Authority relating to pollution or protection of the Environment or protection of human health (to the extent relating to exposure to Hazardous Materials), including laws relating to emissions, discharges, releases or threatened releases of Hazardous Materials into the Environment or otherwise relating to the generation, use, treatment, storage, transport or handling of Hazardous Materials.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of remediation, fines, penalties or indemnities), of any Credit Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage or treatment of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials or (e) any contract, agreement or other binding consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means (a) in the case of a corporation, capital stock or shares, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests, (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person and (f) any and all warrants, rights or options to purchase any of the foregoing; provided that Permitted Convertible Debt, or other debt securities that are or by their terms may be convertible or exchangeable into or for Qualified Equity Interests, or Permitted Warrant Transactions, in each case, shall not constitute capital stock or other Equity Interests prior to settlement, conversion or exchange thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, together with all rules, regulations and interpretations thereunder or related thereto.
“ERISA Affiliate” means any person required to be aggregated with any Credit Party or any of its Subsidiaries under Sections 414(b), 414(c), 414(m) or 414(o) of the Code.
“ERISA Event” means
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“Erroneous Payment” is defined in Section 11.15(a).
“Erroneous Payment Notice” is defined in Section 11.15(b).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor thereto), as in effect from time to time.
“Euribor” means the greater of (a) the rate per annum determined on the basis of the rate for deposits in Euros equal to the Euro Interbank Offered Rate as administered by the European Money Markets Institute, or a comparable or successor administrator approved by the Agent, for a period comparable to the applicable Interest Period, at approximately 11:00 a.m. (Brussels time) on the Rate Determination Date and (b) the Floor.
“Euro” means the single currency of the participating member states as described in any EMU Legislation.
“Eurocurrency Banking Day” means, for Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, a TARGET Day; provided, that for purposes of notice requirements in Sections 2.4(c), 3.1(g) and 3.1(h), in each case, such day is also a Business Day.
“Eurocurrency Rate” means, subject to the implementation of a Benchmark Replacement in accordance with Section 3.2(c), for any Eurocurrency Rate Loan for any Interest Period:
“Eurocurrency Rate Loans” means any Revolving Loans or portion thereof denominated in an Alternate Currency (other than Canadian Dollars) and on which interest is payable based on the Adjusted Eurocurrency Rate in accordance with the terms hereof.
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“Eurocurrency Reserve Percentage” means, for any day, the percentage which is in effect for such day as prescribed by the FRB for determining the maximum reserve requirement (including any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. The Adjusted Eurocurrency Rate for each outstanding Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.
“Event of Default” is defined in Section 10.1.
“Excluded Accounts” means, collectively, (a) Deposit Accounts or Securities Accounts established solely for the purpose of funding payroll, payroll taxes and other compensation and benefits to employees, (b) Deposit Accounts established as withholding tax, trust, escrow or fiduciary accounts, (c) Deposit Accounts that are zero balance accounts that are swept daily into Deposit Accounts that are subject to Control Agreements or into other Excluded Accounts, (d) Deposit Accounts maintained at the Agent and (e) Deposit Accounts or Securities Accounts with amounts on deposit that, when aggregated with the amounts on deposit in all other Deposit Accounts or Securities Accounts for which Control Agreements have not been obtained (other than those specified in clauses (a), (b), (c) and (d)), do not exceed $3,000,000 at any time.
“Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the liability for or the guarantee of such Credit Party or the grant of such security interest becomes effective with respect to such Swap Obligation (such determination being made after giving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Credit Party, including under the keepwell provisions in the applicable Financing Agreement). If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal for the reasons identified in the immediately preceding sentence of this definition.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Borrower under Section 3.6(b)) or (ii) such Lender changes its
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Lending Office, except in each case to the extent that, pursuant to Section 3.5, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.5(g), (d) any Taxes imposed under FATCA and (e) any Taxes that are required to be deducted or withheld under the ITA or in respect of any payment or deemed payment under the ITA, to or for the benefit of any Recipient (i) with which the payor does not deal at arm’s length for purposes of the ITA at the time of the making of the payment or deemed payment (except where such non-arm’s length relationship arises solely in connection with or as result of the Recipient having become party to, received or perfected a security interest under, or received or enforced any rights under, any Financing Agreement) or (ii) that is a “specified shareholder” (as defined in subsection 18(5) of the ITA) of the applicable Credit Party at any relevant time or does not deal at arm’s length for purposes of the ITA with a “specified shareholder” (as defined in subsection 18(5) of the ITA) of the applicable Credit Party at any relevant time (except where such status arises solely in connection with or as result of the Recipient having become party to, received or perfected a security interest under, or received or enforced any rights under, any Financing Agreement).
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FDIC” means the Federal Deposit Insurance Corporation.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that if such rate is not so published for any day which is a Business Day, the Federal Funds Rate for such day shall be the average of the quotation for such day on such transactions received by Agent from three (3) federal funds brokers of recognized standing selected by Agent. Notwithstanding the foregoing, if the Federal Funds Rate shall be less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement.
“Fee Letter” means that certain engagement letter dated as of February 25, 2022 between Borrower and Arranger.
“Fifth A&R Closing Date” means June 28, 2018.
“Financing Agreements” means, collectively, this Agreement, the Fee Letter and all notes, guarantees, security agreements and other agreements, documents and instruments previously, now or at any time hereafter executed and/or delivered by any Credit Party in connection with this Agreement, in each case, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, but excluding any Secured Hedge Agreement and Secured Cash Management Agreement.
“First Amendment Effective Date” means June 10, 2020.
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“Fiscal Quarter” means each of the following 3 month periods in any Fiscal Year of Borrower: January 1 to March 31, April 1 to June 30, July 1 to September 30 and October 1 to December 31.
“Fiscal Year” means the fiscal year of Borrower being the twelve (12) month period of January 1 to December 31.
“Fixed Incremental Amount” means, at any time, (a) an amount equal to the greater of (i) $140,000,000 and (ii) the EBITDA of Borrower and its consolidated Subsidiaries for the four (4) Fiscal Quarter period most recently ended for which a Compliance Certificate has been executed and delivered by Borrower to Agent less (b) the aggregate principal amount of all Incremental Loans, Incremental Loan Commitments and Incremental Equivalent Debt incurred under the Fixed Incremental Amount prior to such time; provided further that during the Designated Period the Fixed Incremental Amount shall be reduced to $50,000,000 less the aggregate principal of all Incremental Loans, Incremental Loan Commitments and Incremental Equivalent Debt incurred under the Fixed Incremental Amount during the Designated Period prior to such time.
“Flood Insurance Laws” means, collectively, (a) the National Flood Insurance Act of 1968, (b) the Flood Disaster Protection Act of 1973, (c) the National Flood Insurance Reform Act of 1994, (d) the Flood Insurance Reform Act of 2004 and (e) the Biggert-Waters Flood Insurance Reform Act of 2012, as each of the foregoing is now or hereafter in effect and any successor statute to any of the foregoing.
“Floor” means a rate of interest equal to 0%.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Lender, such Defaulting Lender’s Pro Rata Share of the outstanding obligations with respect to Letter of Credit Accommodations issued by such Issuing Lender, other than such obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof and (b) with respect to the Swingline Lender, such Defaulting Lender’s Pro Rata Share of outstanding Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course of its activities.
“Future Permitted Transaction” means any infrequent or unusual transaction requested by Borrower to be designated as such to the extent any such transaction has been pre-approved in writing by Agent and Required Lenders.
“GAAP” means generally accepted accounting principles in the United States of America and as in effect from time to time (for all other purposes of the Agreement), including those forth in the opinions and pronouncements of the relevant U.S. public and private accounting boards and institutes which are applicable to the circumstances as of the date of determination consistently applied. If at any time any change in GAAP or the application thereof would affect the computation or interpretation of any financial ratio, basket, requirement or other provision set forth in any Financing Agreement, and either
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the Borrower or the Required Lenders shall so request, the Agent and the Borrower shall negotiate in good faith to amend such ratio, basket, requirement or other provision to preserve the original intent thereof in light of such change in GAAP or the application thereof (subject to the approval of the Required Lenders not to be unreasonably withheld, conditioned or delayed).
“General Security Agreement” means the amended and restated general security agreement dated November 16, 2009 entered into by Borrower in favor of Agent, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
“Governmental Authority” means any government, parliament, legislature, municipal or local government, or any regulatory authority, agency, commission or board of any government, parliament or legislature, or any court or (without limitation to the foregoing) any other law, regulation or rule-making entity (including any central bank, fiscal or monetary authority regulating banks), having or purporting to have jurisdiction in the relevant circumstances, or any Person acting or purporting to act under the authority of any of the foregoing (including any arbitrator).
“Guarantors” means, other than Borrower, any guarantor, endorser, acceptor, surety or other person liable on or with respect to the Obligations or who is the owner of any property which is security for the Obligations, including:
“Hazardous Materials” means any chemical, material, substance, waste, pollutant or contaminant, or compound in any form of any nature, including petroleum and petroleum products, asbestos and asbestos-containing materials, regulated pursuant to any Environmental Law.
“Hedge Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, all as amended, modified, supplemented, extended, renewed, restated or replaced
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from time to time. For the avoidance of doubt, the term “Hedge Agreement” shall not include the agreements and arrangements entered into to effect a Permitted Bond Hedge Transaction or a Permitted Warrant Transaction.
“Hedge Bank” means any Person that at the time it enters into a Hedge Agreement is a Lender, an Affiliate of a Lender, Agent or an Affiliate of Agent, in its capacity as a party to such Hedge Agreement.
“Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include Agent, a Lender or any Affiliate thereof).
“Hong Kong JV Guarantee” means the unsecured guarantee dated January 6, 2014 issued by Borrower to Sino Leader (Hong Kong) Limited.
“IMAX Barbados” means IMAX (Barbados) Holding, Inc., a Barbados corporation.
“IMAX Cayman” means IMAX China Holding, Inc., a Cayman Islands exempted company.
“IMAX China Credit Facility” means a secured credit facility provided by third party lenders to IMAX Cayman, IMAX China HK and/or IMAX China Multimedia.
“IMAX China Guarantee” means an unsecured guarantee issued by Borrower of the obligations, liabilities and indebtedness of any borrower that is a Subsidiary of Borrower under the IMAX China Credit Facility in an amount not to exceed $5,000,000.
“IMAX China HK” means IMAX China (Hong Kong), Limited.
“IMAX China Multimedia” means IMAX (Shanghai) Multimedia Technology Co., Ltd., a People’s Republic of China corporation.
“IMAX China Theatre” means IMAX (Shanghai) Theatre Technology Services Co., Ltd., a People’s Republic of China corporation.
“IMAX Film Fund” means IMAX Documentary Films Capital, LLC.
“IMAX Film Fund Put” means the Production, Financing and Distribution Agreement dated as of May 12, 2014, by and between IMAX Film Holding Co. and IMAX Film Fund.
“IMAX HK” means IMAX (Hong Kong) Holding, Limited, a Subsidiary of Borrower and a Hong Kong corporation.
“IMAX Ireland” means IMAX Theatres International Limited, an Irish company.
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“Increased Amount Date” is defined in Section 2.6(b).
“Increased-Cost Lender” is defined in Section 3.6(a).
“Incremental Equivalent Debt” is defined in Section 8.3(y).
“Incremental Lender” is defined in Section 2.6(c).
“Incremental Loan Commitments” is defined in Section 2.6(a)(ii).
“Incremental Loans” is defined in Section 2.6(a)(ii).
“Incremental Revolving Loan Commitment” is defined in Section 2.6(a)(ii).
“Incremental Revolving Loan Increase” is defined in Section 2.6(a)(ii).
“Incremental Term Loan” is defined in Section 2.6(a)(i).
“Incremental Term Loan Commitment” is defined in Section 2.6(a)(i).
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under this Agreement and any other documents entered into in connection herewith and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” is defined in Section 12.5.
“Information Certificate” means the Information Certificate substantially in the form of Exhibit C hereto provided by or on behalf of each Credit Party to Agent in connection with the Financing Agreements.
“Insolvency Laws” means any of the Bankruptcy Code, BIA, the CCAA (Canada), the Winding-Up and Restructuring Act (Canada), and any similar Debtor Relief Laws of any applicable jurisdiction (including common law or equity and any law permitting a debtor to obtain a stay or a compromise of the claims of its creditors against it) now or hereafter in effect relating to bankruptcy, insolvency, receivership, liquidation, dissolution, winding-up, restructuring or reorganization of debtors (including provisions of any applicable corporations legislation dealing with the restructuring or rearrangement of debts), compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of creditors), or composition of any debtor or its indebtedness.
“Insolvency Proceeding” means any proceeding commenced by or against any Person under any provision of Insolvency Law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.
“Intellectual Property Office” means the United States Copyright Office, the United States Patent and Trademark Office or the Canadian Intellectual Property Office, as applicable.
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“Intercreditor Agreement” means an intercreditor agreement that is reasonably satisfactory to Agent and entered into by Agent pursuant to Section 11.10(d), as amended, modified, extended, renewed, restated or replaced from time to time.
“Interest Period” means, as to any CDOR Rate Loans, Eurocurrency Rate Loan or Term SOFR Loan, the period commencing on the date such Loan is disbursed or converted to or continued as a CDOR Rate Loan, Eurocurrency Rate Loan or Term SOFR Loan, as applicable, and ending on the date one (1), three (3) or (except with respect to any CDOR Rate Loan) six (6) months thereafter, in each case as selected by the Borrower in its Notice of Borrowing or Notice of Conversion/Continuation and subject to availability; provided that:
“Interest Rate” means:
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“Investment” is defined in Section 8.4.
“IP Collateral” means all of the Intellectual Property as such term is defined in the General Security Agreement.
“IP Collateral License Agreement” means the amended and restated intellectual property license agreement dated November 16, 2009 granting Agent and its successors, transferees and assignees, a non-exclusive, royalty free perpetual license to the IP Collateral, but effective only upon the occurrence and continuance of an IP Grace Period, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
“IP Grace Period” means the period commencing on the date upon which Agent exercises its remedies pursuant to Section 10.2(a) and/or Section 10.2(b) hereof and ending 120 days thereafter.
“Issuing Lender” means with respect to Letter of Credit Accommodations issued hereunder, Wells Fargo, in its capacity as issuer thereof, or any successor thereto.
“ITA” means the Income Tax Act, R.S.C. 1985, c. (5th Supplement).
“Lender Joinder Agreement” means a joinder agreement in form and substance reasonably satisfactory to Agent and executed and delivered in connection with Section 2.6.
“Lenders” means each Person executing this Agreement as a Lender on the Restatement Effective Date (including the Swingline Lender) and any other Person that becomes a party hereto as a Lender pursuant to an Assignment and Assumption Agreement or the relevant Lender Joinder Agreement, other than any Person that ceases to be a party hereto as a Lender pursuant to an Assignment and Assumption Agreement.
“Lending Office” means, with respect to any Lender, the office of such Lender maintaining such Lender’s Loans.
“Letter of Credit Accommodations” means the letters of credit, merchandise purchase or other guarantees denominated in U.S. Dollars which are from time to time either (a) issued or opened by Issuing Lender for the account of Borrower or any Credit Party or (b) with respect to which Issuing Lender has agreed to indemnify the issuer or guaranteed to the issuer the performance by any Credit Party of its obligations to such issuer, and shall include the existing letters of credit, merchandise purchase and other guarantees issued and currently outstanding under the Fifth Amended and Restated Credit Agreement.
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“Letter of Credit Accommodations Sublimit” is defined in Section 2.2(c).
“License Agreements” shall have the meaning set forth in the General Security Agreement.
“Lien” means any security interest, mortgage, pledge, hypothec, lien, charge or other lien of any nature whatsoever (including those created by statute); provided that in no event shall an operating lease or an agreement to sell be deemed to constitute a Lien.
“Liquidity” means as of any date of determination, the sum of (a) the aggregate amount of (i) unrestricted cash and Cash Equivalents of Borrower and its consolidated Subsidiaries on the consolidated balance sheet of Borrower and its Subsidiaries as of such date of determination less (ii) any such amounts domiciled in the People’s Republic of China plus (b) the aggregate Revolving Loan Commitments as of such date less the Revolving Loan Exposure as of such date.
“Loans” means, collectively, the Revolving Loans, the Swingline Loans and, if applicable, the Incremental Term Loans.
“Material Acquisition” means any transaction, or any series of related transactions, which is a Permitted Investment consummated on or after the Restatement Effective Date, by which any Credit Party or any of its Subsidiaries:
“Material Adverse Effect” means, with respect to Borrower and its Subsidiaries, (a) a material adverse effect on the properties, business, operations, liabilities (actual or contingent) or financial condition of any such Persons, taken as a whole, (b) a material adverse effect on the ability of any such Persons, taken as a whole, to perform their respective obligations under the Financing Agreements to which any of the Credit Parties is a party, (c) a material adverse effect on the rights and remedies of Agent or the Lenders under any Financing Agreements or (d) a material adverse effect on the legality, validity, binding effect or enforceability against any Credit Party of any Financing Agreement to which it is a party.
“Material Real Property” means any real property owned in fee simple (or local law equivalent) and acquired by a Credit Party after the Fifth A&R Closing Date with a market value or purchase price in excess of $5,000,000; provided that, for the avoidance of doubt, neither the Mississauga Property nor the Playa Vista Property shall constitute “Material Real Property.”
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“Material Subsidiary” means any Subsidiary of any Credit Party that accounts for greater than 10% of the revenues of Borrower on a consolidated basis other than (a) IMAX China Multimedia, IMAX China Theatre, IMAX China HK, Playa Vista Borrower and IMAX Cayman and its Subsidiaries; (b) a Subsidiary that is not wholly owned directly by a Credit Party or one or more of its wholly owned Subsidiaries; (c) a charitable or not-for-profit Subsidiary reasonably designated as such by Borrower; (d) any Subsidiary that is prohibited by Applicable Law, or by any contractual obligation from guaranteeing the applicable Obligations or which would require governmental and/or regulatory consent, approval, license or authorization to provide such guarantee, unless such consent, approval, license or authorization has been received (provided Borrower agrees to use commercially reasonable efforts to obtain such contractual or governmental consent and/or regulatory consent, approval, license or authorization if reasonably requested by Agent), or which would result in material adverse tax consequences to any Credit Party and/or any of its Subsidiaries as reasonably determined by Borrower and Agent; (e) any Subsidiary that is created solely for the purpose of consummating a transaction pursuant to an acquisition permitted hereunder but only until such transaction is consummated, if such new Subsidiary at no time holds any assets or liabilities other than any merger or amalgamation consideration contributed to it contemporaneously with the closing of such transactions; (f) any Subsidiary acquired pursuant to a Permitted Investment and financed with secured Debt permitted to be incurred hereunder as assumed Debt (and not incurred in contemplation of such acquisition), and each Subsidiary acquired in such Permitted Investments that guarantees such Debt, in each case to the extent that, and for so long as, the documentation relating to such Debt to which such Subsidiary is a party prohibits such Subsidiary from guaranteeing the Obligations and such prohibition was not created in contemplation of such Permitted Investment; and (g) any other Subsidiary with respect to which, in the reasonable judgment of Borrower (as agreed to in writing by Agent), the cost or other consequences of guaranteeing the Obligations would be excessive in view of the benefits to be obtained by the Lenders therefrom.
“Maturity Date” means the earlier of:
“Maximum Incremental Amount” means, collectively, the Fixed Incremental Amount, the Ratio Incremental Amount and the Voluntary Prepayment Amount; provided that the order and combination of the utilization of any component of the Maximum Incremental Amount shall be directed by Borrower in writing in its sole discretion subject to the terms of this Agreement on or prior to the date any commitment therefor is entered into and if not so directed shall be deemed to have been incurred in reliance first on the Ratio Incremental Amount, second on the Voluntary Prepayment Amount and third on the Fixed Incremental Amount; provided further that during the Designated Period the Maximum Incremental Amount shall not exceed the Fixed Incremental Amount.
“Mississauga Property” means the property located at 2525 Speakman Drive, Mississauga, Ontario L5K 1B1 legally owned by 1329507 Ontario Inc. and beneficially owned by Borrower.
“Mortgages” means the collective reference to each mortgage, deed of trust or other real property security document, encumbering any real property now or hereafter owned by any Credit Party, in each case, in form and substance reasonably satisfactory to Agent and executed by such Credit Party in favor
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of Agent, for the ratable benefit of the Secured Parties, as any such document now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
“Multiemployer Plan” means a “multi-employer plan” as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding 6 years contributed to by Borrower or any ERISA Affiliate or with respect to which Borrower or any ERISA Affiliate may incur any liability.
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.14 and (b) has been approved by the Required Lenders.
“Non-Defaulting Lender” means, at any time, each Revolving Lender that is not a Defaulting Lender at such time.
“Non-Funding Lender” means any Lender that has failed to (a) fund all or any portion of the Revolving Loans or any Incremental Term Loan required to be funded by it hereunder within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Agent and the Borrower in writing that such failure is the result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (b) pay to the Agent, any Issuing Lender, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due.
“Notice of Borrowing” means a notice of borrowing substantially in the form attached as Exhibit D hereto.
“Notice of Conversion/Continuation” means a notice of conversion/continuation substantially in the form attached as Exhibit E hereto.
“Notice of Prepayment” means a notice of prepayment substantially in the form attached as Exhibit F hereto.
“Obligations” means any and all Loans, Letter of Credit Accommodations and all other obligations, liabilities and indebtedness of every kind, nature and description owing by any Credit Party to Agent, Lenders and their respective Affiliates including principal, interest, charges, indemnifications for Letter of Credit Accommodations or otherwise, fees, costs and expenses, however evidenced, whether as principal or otherwise, arising under or in connection with the Financing Agreements, Secured Hedge Agreements and Secured Cash Management Agreements, as amended, modified, supplemented, extended, renewed, restated, replaced or superseded, in whole or in part, from time to time and/or Applicable Laws, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of this Agreement or after the commencement of any proceeding with respect to any Credit Party under Insolvency Laws (including the payment of interest and other amounts which would accrue and become due but for the commencement of such proceeding, whether or not such amounts are allowed or allowable in whole or in part in such proceeding), whether direct or indirect, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, secured or unsecured; provided that the “Obligations” of a Credit Party shall exclude any Excluded Swap Obligations with respect to such Credit Party. For greater certainty, the obligations, liabilities and
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indebtedness owing under or in connection with the BMO and National Bank Facilities are not included in “Obligations”.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Operating Lease” means, as to any Person as determined in accordance with GAAP, any lease of property (whether real, personal or mixed) by such Person as lessee which is not a capital or finance lease.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement and any other documents entered into in connection herewith, or sold or assigned an interest in any Loan or this Agreement and any other documents entered into in connection herewith).
“Other Currency” is defined in Section 13.6.
“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement and any other documents entered into in connection herewith, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.6(b)).
“Participant Register” is defined in Section 11.1(g) hereof.
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.
“Payment/Insolvency Event of Default” means the occurrence and continuation of any Event of Default pursuant to Section 10.1(a)(i) and (ii), 10.1(i) or 10.1(j).
“Pension Plans” means each of the registered pension plans within the meaning of subsection 248(1) of the ITA, if any, which any Credit Party sponsors or administers or into which any Credit Party makes contributions or is obligated to make contributions.
“Permitted Bond Hedge Transaction” means any bond hedge, call or capped call option (or substantively equivalent derivative transaction) relating to the Borrower’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of the Borrower) purchased by any Credit Party in connection with the issuance of any Permitted Convertible Debt and settled in common stock of the Borrower (or such other securities or property), cash or a combination thereof (such amount of cash determined by reference to the price of the Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the Borrower; provided that the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the Borrower from the sale of any substantially concurrently executed Permitted Warrant Transaction, does not exceed the net cash proceeds received by the
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Borrower or any other Credit Party from the sale of the Permitted Convertible Debt in connection with which such Permitted Bond Hedge Transaction was purchased; provided further that the other terms, conditions and covenants of each such transaction shall be such as are customary for transactions of such type (as determined by the Borrower in good faith).
“Permitted Convertible Debt” means unsecured Debt of a Credit Party that (a) as of the date of issuance thereof contains customary conversion or exchange rights and customary offer to repurchase rights for transactions of such type (in each case, as determined by the Borrower in good faith) and (b) is convertible or exchangeable into shares of common stock of the Borrower (or other securities or property following a merger event, reclassification or other change of the common stock of the Borrower), cash or a combination thereof (such amount of cash determined by reference to the price of the Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the Borrower.
“Permitted Debt” means, collectively, the Debt of Borrower and its Subsidiaries permitted pursuant to Section 8.3.
“Permitted Investments” means, collectively, the Investments permitted pursuant to Section 8.4.
“Permitted Liens” means, collectively, the Liens permitted pursuant to Section 8.2.
“Permitted Refinancing” means any renewals, exchanges, extensions, refinancings and refunding of Debt; provided that:
(a) any such renewal, exchange, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount (or accreted value, if applicable) of the aggregate principal amount of the Debt being renewed exchanged, extended or refinanced or refunded outstanding at such time (plus accrued interest, any reasonable premium and reasonable commission, fees and expenses);
(b) the Debt resulting from such renewal, exchange, extension, refinancing or refunding has a stated maturity date that is at least 91 days after the Maturity Date and the Weighted Average Life to Maturity of the Debt resulting from such renewal, exchange, extension, refinancing or refunding is not shorter than the Weighted Average Life to Maturity of the Debt being renewed exchanged, extended, refinanced or refunded;
(c) with respect to which any Liens securing the Debt resulting from such renewal, exchange, extension, refinancing or refunding are limited to the assets or property that secured or would have secured the Debt being renewed, exchanged, extended, refinanced or refunded and without any change in the Lien priority with respect to such assets or property subject to such Liens; provided that any such Lien may be subordinated on terms satisfactory to Agent;
(d) no obligor that was not obligated with respect to the Debt that is renewed, exchanged, extended, refinanced or refunded shall become obligated with respect to the Debt resulting from such renewal, exchange, extension, refinancing or refunding;
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(e) if the Debt that is renewed, exchanged, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the Debt resulting from such renewal, exchange, extension, refinancing or refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, exchanged, extended, refinanced or refunded Debt; and
(f) the Debt resulting from such renewal, exchange, extension, refinancing or refunding shall be on terms no more materially restrictive on such obligors than the Debt being renewed, exchanged, extended, refinanced or refunded.
“Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) relating to the Borrower’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of the Borrower) sold by the Borrower substantially concurrently with any purchase by a Credit Party of a Permitted Bond Hedge Transaction and settled in common stock of the Borrower (or such other securities or property), cash or a combination thereof (such amount of cash determined by reference to the price of the Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of the Borrower; provided that the terms, conditions and covenants of each such transaction shall be such as are customary for transactions of such type (as determined by the Borrower in good faith).
“Person” or “person” means any individual, sole proprietorship, corporation, partnership, limited partnership, corporation, limited liability company, business trust, unincorporated association, joint stock corporation, trust, joint venture or other entity or any government or any agency or instrumentality or political subdivision thereof.
“Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) which Borrower or any ERISA Affiliate sponsors, maintains, or to which it makes, is making, or is obligated to make contributions or, in the case of a Multiemployer Plan, has made contributions at any time during the immediately preceding 6 plan years or with respect to which Borrower may incur liability. For greater certainty, “Plan” does not include a Pension Plan that is not a U.S. Pension Plan.
“Playa Vista Borrower” means IMAX PV Development Inc., a wholly-owned subsidiary of Borrower.
“Playa Vista Property” means the property located at 12582 West Millennium, Playa Vista, California 90094 owned by Playa Vista Borrower.
“PPSA” means the Personal Property Security Act (Ontario); provided that, if the attachment, perfection or priority of Agent’s security in respect of any Collateral is governed by the laws of any jurisdiction other than Ontario, PPSA shall mean those other laws for the purposes hereof relating to attachment, perfection or priority.
“Pro Forma Basis” means
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“Pro Rata Share” means with respect to a Lender:
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“Prohibited Transferee” is defined in the definition of Eligible Transferee.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.
“Rate Determination Date” means, with respect to any Interest Period, two (2) Eurocurrency Banking Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in the applicable interbank market, as determined by the Agent; provided that to the extent that such market practice is not administratively feasible for the Agent, such other day as otherwise reasonably determined by the Agent).
“Ratio Debt” is defined in Section 8.3(m).
“Ratio Debt Test” is defined in Section 8.3(m).
“Ratio Incremental Amount” means, at any time, the maximum amount of Debt that could be incurred at such time by Borrower so long as on a Pro Forma Basis, after giving effect to the incurrence of any applicable Incremental Term Loan Commitment or Incremental Term Loans, (a) in the case of secured Debt, the Senior Secured Net Leverage Ratio does not exceed 2.50:1.00 (as calculated by Borrower in a Compliance Certificate executed and delivered by Borrower to Agent) and (b) in all other cases, the Ratio Debt Test is satisfied.
“Receiver” is defined in Section 10.2(f).
“Recipient” means (a) Agent, (b) any Lender and (c) any Issuing Lender, as applicable.
“Records” means all of each Credit Party’s present and future books of account of every kind or nature, purchase and sale agreements, invoices, ledger cards, bills of lading and other shipping evidence, statements, correspondence, memoranda, credit files and other data relating to the Collateral or any account debtor, together with the tapes, disks, diskettes and other data and software storage media and
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devices, file cabinets or containers in or on which the foregoing are stored (including any rights of a Credit Party with respect to the foregoing maintained with or by any other person).
“Register” is defined in Section 11.1(h) hereof.
“Relevant Governmental Body” means (a) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, U.S. Dollars, the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto and (b) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, any Alternate Currency, (i) the central bank for the Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, or any central bank or other supervisor which is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement or (ii) any working group or committee officially endorsed or convened by (A) the central bank for the Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, (B) any central bank or other supervisor that is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof.
“Replacement EBITDA Amount” is defined in the definition of EBITDA.
“Report” is defined in Section 11.9(a).
“Required Lenders” means, on any date of determination, (a) Lenders holding more than 50% of the Commitments or (b) on and after the Maturity Date, Lenders holding more than 50% of the outstanding Loans. The Commitments and outstanding Loans of Defaulting Lenders shall be excluded from the calculation of Required Lenders. For purposes of this definition, the calculation of the outstanding principal amount of all Alternate Currency Loans shall be determined by taking the Dollar Equivalent thereof at the time of any such calculation.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means, as to any Person, the chief executive officer, president, chief financial officer, controller, treasurer or assistant treasurer of such Person or any other officer of such Person designated in writing by the Borrower or such Person and reasonably acceptable to the Agent; provided that, to the extent requested thereby, the Agent shall have received a certificate of such Person certifying as to the incumbency and genuineness of the signature of each such officer. Any document delivered hereunder or under any other Financing Agreement that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other relevant action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.
“Restatement Effective Date” means March 25, 2022.
“Restricted Payment” is defined in Section 8.5.
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“Revolving Lenders” means, at any time, collectively, all Lenders with a Revolving Loan Commitment at such time (and after the termination of all Revolving Loan Commitments, any Lender that holds any outstanding amount in respect of Revolving Loans). Unless the context otherwise requires, the term “Lenders” includes Swingline Lender.
“Revolving Loan Commitment” means (a) as to any Revolving Lender with respect to Revolving Loans, the aggregate of such Revolving Lender’s Revolving Loan Commitment as set forth beside such Revolving Lender’s name on Exhibit G hereto or, if such Revolving Lender’s name does not appear on Exhibit G hereto, in the most recent Assignment and Assumption Agreement or Lender Joinder Agreement executed by such Revolving Lender, and (b) as to all Revolving Lenders, the aggregate of all Revolving Lenders’ Revolving Loan Commitments to Borrower, which aggregate commitment is $300,000,000 as of the Restatement Effective Date. For greater certainty, the Swingline Commitment of $5,000,000 as of the Restatement Effective Date is a sub-limit of the Revolving Loan Commitment and not in addition thereto.
“Revolving Loan Exposure” means, as to any Revolving Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Revolving Lender’s participation in the Letter of Credit Accommodations and Swingline Loans at such time. For purposes of this definition, the calculation of the outstanding principal amount of all Alternate Currency Loans shall be determined by taking the Dollar Equivalent thereof at the time of any such calculation.
“Revolving Loan Facility” means the revolving loan facility established pursuant to Article 2 (including any increase in such revolving loan facility established pursuant to Section 2.6).
“Revolving Loan Outstandings” means the sum of on any date (a) the aggregate outstanding principal amount of Revolving Loans and Swingline Loans (without duplication) after giving effect to any borrowings and prepayments or repayments of Revolving Loans and Swingline Loans (without duplication) occurring on such date; plus (b) the aggregate outstanding amount of all Letter of Credit Accommodations after giving effect to any changes in the aggregate amount of the Letter of Credit Accommodations as of such date. For purposes of this definition, the calculation of the outstanding principal amount of all Alternate Currency Loans shall be determined by taking the Dollar Equivalent thereof at the time of any such calculation.
“Revolving Loans” means Canadian Prime Rate Loans, CDOR Rate Loans, Eurocurrency Rate Loans, U.S. Base Rate Loans, and/or Term SOFR Loans, as the case may be, now or hereafter made by Revolving Lenders to or for the benefit of Borrower on a revolving basis (involving advances, repayments and re-advances) as set forth in Section 2.1 hereof.
“Sanctioned Entity” means (a) an agency of the government of, (b) an organization directly or indirectly controlled by, or (c) a person resident in, in each case, a country or territory that is the target of territory-wide or country-wide OFAC, Global Affairs Canada, United Nations Security Council, European Union, any member state of the European Union or United Kingdom (irrespective of its status vis-a-vis the European Union) sanctions.
“Sanctioned Person” means a person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/fac/sdn/index.html, or as otherwise published from time to time (or any similar list maintained and published from time to
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time by Global Affairs Canada, the United Nations Security Council, the European Union, any member state of the European Union or the United Kingdom (irrespective of its status vis-a-vis the European Union)).
“Second Amendment Effective Date” means March 15, 2021.
“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Credit Party and any Cash Management Bank.
“Secured Hedge Agreement” means any Hedge Agreement that is entered into by and between any Credit Party and any Hedge Bank.
“Secured Parties” means, collectively, Agent, Lenders, and their respective Affiliates (including Hedge Banks under any Secured Hedge Agreements and Cash Management Banks under Secured Cash Management Agreements) and any other person holding any Obligations (and, for greater certainty, if such person ceases to be an Agent or a Lender then for any transaction entered into under a Secured Hedge Agreement or Secured Cash Management Agreement with that Agent or Lender or any of its Affiliates prior to the date that person ceases to be an Agent or Lender, that Person or any of its Affiliates shall continue to be a Secured Party hereunder with respect to Borrower’s obligations relating to any such transaction).
“Securities Accounts” as defined in the UCC as in effect in the State of New York.
“Senior Secured Net Leverage Ratio” means, as of any date, the ratio of (i) Total Debt secured by a Lien on any assets of Borrower or any of its Subsidiaries as of such date (net of unrestricted cash and Cash Equivalents of Borrower and its consolidated Subsidiaries on the consolidated balance sheet of Borrower and its Subsidiaries as of the last day of such period less such amounts domiciled in the People’s Republic of China, and such net amount not to exceed in aggregate $75,000,000 and excluding any Debt of the Playa Vista Borrower or any guarantee thereof, but only to the extent that such Debt or guarantee thereof is not secured by the assets of the Borrower or any of its Subsidiaries (other than the Playa Vista Borrower)) to (ii) EBITDA for the period of four (4) Fiscal Quarter period ending on or immediately prior to such date.
“Settlement Date” is defined in Section 11.13(a)(iii).
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Business Day” means, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, U.S. Dollars, any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities; provided, that for purposes of notice requirements in Sections 2.4(c), 3.1(g) and 3.1(h), in each case, such day is also a Business Day.
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“Solvent” means, with respect to any Person on any date of determination, that on such date (a) the fair value of the assets (including contingent assets) of such Person is greater than the total amount of liabilities (including contingent liabilities) of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent assets or liabilities at any time shall be computed as the amount that, in the light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured assets or liability, as the case may be.
“Subsidiary” means, with respect to any Person, any corporation, partnership or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person.
“Swap Obligation” means, with respect to any Credit Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Sweep Arrangement” is defined in Section 2.1(c).
“Swingline Commitment” means the lesser of (a) $5,000,000 and (b) the Revolving Loan Commitment. For greater certainty, the Swingline Commitment of $5,000,000 as of the Restatement Effective Date is a sub-limit of the Revolving Loan Commitment and not in addition thereto.
“Swingline Facility” means the swingline facility established pursuant to Section 2.1(c).
“Swingline Lender” means Wells Fargo in its capacity as swingline lender hereunder or any successor thereto.
“Swingline Loan” means any swingline loan made by Swingline Lender to Borrower pursuant to Section 2.1(c), and all such swingline loans collectively as the context requires.
“Swingline Participation Amount” is defined in Section 2.1(c)(iv).
“Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.
“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in Euros.
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“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, fines, additions to tax or penalties applicable thereto.
“Term Lender” means any Lender with an Incremental Term Loan Commitment or holding Incremental Term Loans.
“Term SOFR” means,
“Term SOFR Adjustment” means, for any calculation with respect to a U.S. Base Rate Loan or a Term SOFR Loan, a percentage per annum equal to 0.10%.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion).
“Term SOFR Loan” means any Loan that bears interest at a rate based on Adjusted Term SOFR other than pursuant to clause (c) of the definition of “U.S. Base Rate”.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
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“Total Debt” means, at any time with respect to Borrower and its consolidated Subsidiaries in accordance with GAAP and to the extent listed on the consolidated balance sheet (without duplication), the sum of all (i) Debt of the type specified in clauses (b), (c), (d), (e), (f) and (h) of the definition of “Debt” and (ii) non-contingent obligations of the type specified in clause (k) of such definition to the extent such obligations under clause (k) relate to Debt of the type specified in clauses (b), (c), (d), (e), (f) and (h) of such definition (but (1) excluding surety bonds not in connection with debt for borrowed money, performance bonds or other similar instruments, (2) excluding the effects of any discounting of Debt resulting from the application of purchase accounting in connection with the transactions contemplated by this Agreement or any acquisition, and (3) any Debt that is issued at a discount to its initial principal amount shall be calculated based on the entire stated principal amount thereof, without giving effect to any discounts or upfront payments, excluding obligations in respect of letters of credit, bankers acceptances, bank guarantees, and guarantees on first demand, in each case, except to the extent of unreimbursed amounts thereunder). For the avoidance of doubt, it is understood that obligations under Hedge Agreements and Cash Management Agreements do not constitute Total Debt.
“Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Debt on such date to (b) EBITDA for the period of four (4) consecutive Fiscal Quarters ending on or immediately prior to such date.
“Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Total Debt on such date (net of unrestricted cash and Cash Equivalents of Borrower and its consolidated Subsidiaries on the consolidated balance sheet of Borrower and its Subsidiaries as of the last day of such period less such amounts domiciled in the People’s Republic of China, and such net amount not to exceed in aggregate $75,000,000) to (b) EBITDA for the period of four (4) consecutive Fiscal Quarters ending on or immediately prior to such date.
“Trade-mark” means any Trade-mark as such term is defined in the General Security Agreement.
“TTM Revenue” means, as of any date of determination, with respect to Borrower and its consolidated Subsidiaries the amount which is set forth under the heading “Revenues” on the consolidated statement of operations of Borrower and its Subsidiaries for the most recent four (4) consecutive Fiscal Quarter period ending on or immediately prior to such date as determined in accordance with GAAP.
“Type” means (i) for any US Revolving Loan, the type of such US Revolving Loan determined with regard to the interest option available thereto, i.e., whether a U.S. Base Rate Loan or a Term SOFR Loan, (ii) for a Eurocurrency Rate Loan, the Currency of such Eurocurrency Rate Loan, and (iii) in the case of any Canadian Revolving Loan, the type of such Canadian Revolving Loan determined with regard to the interest option available thereto, i.e., whether a Canadian Prime Rate Loan or a CDOR Rate Loan.
“UCC” means the Uniform Commercial Code as in effect in the State of New York (or any similar or equivalent legislation as in effect in any applicable jurisdiction).
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
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“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“United States” means the United States of America.
“USERP” means the unregistered supplemental executive retirement plan dated July 12, 2000, as amended and restated as of January 1, 2006, made by Borrower in favor of its former Co-Chief Executive Officer and current Chairman of the Board, Bradley J. Wechsler, and its current Chief Executive Officer, Richard L. Gelfond.
“U.S. Base Rate” means, at any time, the highest of (a) the U.S. Prime Rate, (b) the Federal Funds Rate plus 0.50% and (c) the Adjusted Term SOFR for an Interest Period of one month plus the difference between the Applicable Margin for U.S. Base Rate Loans and Term SOFR Loans; each change in the U.S. Base Rate shall take effect simultaneously with the corresponding change or changes in the U.S. Prime Rate, the Federal Funds Rate or the Adjusted Term SOFR (provided that clause (c) shall not be applicable during any period in which the Adjusted Term SOFR is unavailable or unascertainable).
“U.S. Base Rate Loans” means any Loans (including Swingline Loans) or portions thereof denominated in U.S. Dollars and on which interest is payable based on the U.S. Base Rate in accordance with the terms hereof.
“U.S. First Rate” is defined in Section 3.1(c).
“U.S. Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA which any Credit Party sponsors, maintains, or to which any Credit Party or any ERISA Affiliate makes, is making, or is obligated to make contributions, other than a Multiemployer Plan.
“U.S. Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by Agent as its prime rate. Each change in the U.S. Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.
“US Revolving Loans” means Revolving Loans denominated in U.S. Dollars.
“Voluntary Prepayment Amount” means, at any time, the amount equal to all voluntary prepayments by Borrower of the Loans to the extent accompanied by a corresponding permanent reduction in the Revolving Loan Commitment, if applicable, less the aggregate principal amount of all Incremental Loans, Incremental Loan Commitments and Incremental Equivalent Debt incurred under the Voluntary Prepayment Amount prior to such time, as applicable.
“Weighted Average Life to Maturity” means, when applied to any indebtedness at any date, the number of years (and/or portion thereof) obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number
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of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such indebtedness, in each case of clauses (a) and (b), without giving effect to the application of any prior prepayment to such installment, sinking fund, serial maturity or other required payment of principal.
“Wells Fargo” means Wells Fargo Bank, National Association, a national banking association, and its successors.
“Withholding Agent” means any Credit Party and Agent.
“Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
CREDIT FACILITIES
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Agent or a Lender (or their respective Affiliates) may offer to make available Hedge Agreements to Borrower from time to time (it being understood that nothing contained herein shall be construed to commit any person to enter into any Hedge Agreement) upon terms mutually acceptable to Agent or such Lender or such Affiliate and Borrower.
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provided that (1) the total aggregate principal amount (as of the date of incurrence thereof) of such Incremental Revolving Loan Commitments and Incremental Revolving Loan Increases shall not exceed the Fixed Incremental Amount, (2) the total aggregate principal amount (as of the date of incurrence thereof) of such Incremental Loans shall not exceed the Maximum Incremental Amount, (3) the amount for each Incremental Term Loan Commitment (and the Incremental Term Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (2) and (4) the amount for each Incremental Revolving Loan Commitment shall not be less than a minimum principal amount of $25,000,000.
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INTEREST, REQUESTS FOR REVOLVING LOANS, INCREASED COSTS AND FEES
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If the Borrower requests a borrowing of, conversion to, or continuation of, a CDOR Rate Loan, a Eurocurrency Rate Loan or a Term SOFR Loan, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. If the Borrower fails to specify the Currency of a Loan in a Notice of Borrowing, then the
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applicable Loans shall be made in U.S. Dollars. If the Borrower fails to specify a type of Loan denominated in U.S. Dollars or Canadian Dollars in a Notice of Borrowing, then the applicable Loans shall be made as a Term SOFR Loan in the case of a Loan denominated in U.S. Dollars and a CDOR Rate Loan in the case of Loan denominated in Canadian Dollars.
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The Borrower hereby indemnifies each of the Lenders against any loss, cost or expense (including any loss, cost or expense arising from the liquidation or reemployment of funds or from any fees payable) which may arise, be attributable to or result due to or as a consequence of (a) any failure by the Borrower to make any payment when due of any amount due hereunder in connection with a CDOR Rate Loan, Term SOFR Loan or a Eurocurrency Rate Loan, (b) any failure of the Borrower to borrow or continue a CDOR Rate Loan, Term SOFR Loan or a Eurocurrency Rate Loan or convert to a CDOR Rate Loan, Term SOFR Loan or a Eurocurrency Rate Loan on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation, (c) any payment, prepayment or conversion of any CDOR Rate Loan, Term SOFR Loan or Eurocurrency Rate Loan on a date other than the last day of the Interest Period therefor (including as a result of an Event of Default) or (d) the assignment of any CDOR Rate Loan, Eurocurrency Rate Loan or Term SOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 3.6(b). In the case of a CDOR Rate Loan or Eurocurrency Rate Loan, the amount of such loss or expense shall be determined, in the applicable Lender’s sole discretion, based upon the assumption that such Lender funded its Pro
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Rata Share of the CDOR Rate Loan or Eurocurrency Rate Loans in the London or other applicable offshore interbank market for such Currency, whether or not such CDOR Rate Loan or Eurocurrency Rate Loan was in fact so funded, and using any reasonable attribution or averaging methods which such Lender deems appropriate and practical. A certificate of such Lender setting forth the basis for determining such amount or amounts necessary to compensate such Lender shall be forwarded to the Borrower through the Agent and shall be conclusively presumed to be correct save for manifest error. All of the obligations of the Credit Parties under this Section 3.3 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Financing Agreement.
and the result of any of the foregoing shall be to increase the cost to such Lender, the Issuing Lender or such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender, such Issuing Lender or such other Recipient of participating in, issuing or maintaining any Letter of Credit Accommodations (or of maintaining its obligation to participate in or to issue any Letter of Credit Accommodations), or to reduce the amount of any sum received or receivable by such Lender, such Issuing Lender or such other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, such Issuing Lender or other Recipient, Borrower shall within 30 days after receipt of the certificate referred to in clause (c) below, pay to any such Lender, such Issuing Lender or other Recipient, as the case may be,
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such additional amount or amounts as will compensate such Lender, such Issuing Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply. Upon the prepayment of all amounts owing to any such Lender and the termination of such Lender’s Revolving Loan Commitments, such Lender shall no longer constitute a “Lender” for purposes hereof; provided any rights of such Lender to indemnification and to expense reimbursement hereunder shall survive as to such Lender. Each Lender agrees that, if it becomes an Increased-Cost Lender, Defaulting Lender or a Non-Consenting Lender and its rights and claims are assigned hereunder to an assignee pursuant to this Section 3.6(b), it shall execute and deliver to Agent an Assignment and Assumption Agreement to evidence such assignment; provided, however, that the failure of any Lender to
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execute an Assignment and Assumption Agreement shall not render such assignment invalid.
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CONDITIONS PRECEDENT
Except for those items that are permitted to be satisfied on a post-closing basis pursuant to Section 7.16, each of the following is a condition precedent to Lenders making available the Revolving Loans and making available the Letter of Credit Accommodations hereunder on and after the Restatement Effective Date:
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Each of the following is an additional condition precedent to Lenders making available the Loans and/or making available Letter of Credit Accommodations to Borrower, including the initial Loans and Letter of Credit Accommodations and any future Loans and Letter of Credit Accommodations:
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COLLECTION AND ADMINISTRATION
Agent shall maintain one or more loan account(s) on its books in which shall be recorded: (a) all Loans, Letter of Credit Accommodations and other Obligations and the Collateral; (b) all payments made by or on behalf of Borrower; and (c) all other appropriate debits and credits as provided in this Agreement, including fees, charges, costs, expenses and interest. All entries in the loan account(s) shall be made in accordance with Agent’s customary practices as in effect from time to time. The accounts or records maintained by the Agent and each Lender or the Issuing Lender shall be conclusive absent manifest error of the amount of the Loans and Letter of Credit Accommodations made by the Lenders or the Issuing Lender to the Borrower and its Subsidiaries and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender or the Issuing Lender and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Agent, the Borrower shall execute and deliver to such Lender (through the Agent) a promissory note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its notes and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
In addition to the accounts and records referred to in the prior paragraph, each Revolving Lender and the Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Revolving Lender of participations in Letter of Credit Accommodations and Swingline Loans. In the event of any conflict between the accounts and records maintained by the Agent and the accounts and records of any Revolving Lender in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error.
Borrower may from time to time request and Agent shall promptly provide to Borrower, within a reasonable period of time following such request, statements setting forth the balance in the Borrower’s loan accounts maintained by the Agent pursuant to the provisions of this Agreement, including principal and interest amounts and accrued and unpaid fees.
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Each Lender is authorized to make the Loans and provide the Letter of Credit Accommodations based upon written instructions received by Agent from the persons authorized by Borrower as notified in writing by Borrower to Agent from time to time or, at the discretion of Lenders, if such Loans are necessary to satisfy any Obligations that are overdue. All Loans and Letter of Credit Accommodations under this Agreement shall be conclusively presumed to have been made to, and at the request of and for the benefit of, Borrower when deposited to the credit of Borrower or otherwise disbursed or established in accordance with the instructions of Borrower or in accordance with the terms and conditions of this Agreement.
Borrower shall use the proceeds of the Loans provided by Lenders to Borrower hereunder to (a) pay costs, expenses and fees in connection with the preparation, negotiation, execution and delivery of the Financing Agreements and (b) finance ongoing working capital requirements and other general corporate purposes of Borrower and its Subsidiaries, including the financing of permitted acquisitions and other permitted investments, permitted stock buybacks and dividends.
Except to the extent otherwise provided in this Agreement, (a) the making and conversion of Revolving Loans shall be made by Revolving Lenders based on their respective Pro Rata Shares as to the Revolving Loans and (b) each payment on account of any Obligations to or for the account of one or more of Lenders or their respective Affiliates in respect of any Obligations due on a particular day shall be allocated among the Lenders and their respective Affiliates, as applicable, entitled to such payments based on their respective Pro Rata Shares and shall be distributed accordingly by Agent.
The obligations of each Lender hereunder are several, and no Lender shall be responsible for the obligations or commitment of any other Lender hereunder. Nothing contained in this Agreement or any of the other Financing Agreements and no action taken by the Lenders pursuant hereto or thereto shall be deemed to constitute the Lenders to be a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and subject to Section 11.13(f) hereof, each Lender shall be entitled to protect and enforce its rights arising out of this Agreement and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
REPRESENTATIONS AND WARRANTIES
Each Credit Party hereby represents and warrants to Agent and each Lender the following (which shall survive the execution and delivery of this Agreement):
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Each Credit Party and each Subsidiary thereof (a) is a Person duly incorporated or organized and validly existing under the laws of its jurisdiction of incorporation or organization and (b) is duly qualified or registered as a foreign or extra-provincial corporation in all provinces, states or other jurisdictions where the nature and extent of the business transacted by it or the ownership of assets makes such qualification necessary, except in each case referred to in clause (a) (other than with respect to each Credit Party) and clause (b) to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. The execution, delivery and performance of the Financing Agreements and the transactions contemplated thereunder (a) are all within each Credit Party’s and each of its Subsidiaries’ corporate or other powers, (b) have been duly authorized, and (c) are not in contravention of law or the terms of its certificate of incorporation, by-laws, or other organizational documentation, or any indenture, agreement or undertaking to which it is a party or by which it or its property are bound except, in each case, with respect to any contravention of any such law, indenture, agreement or undertaking, to the extent that such contravention could not reasonably be expected to have a Material Adverse Effect. The Financing Agreements constitute legal, valid and binding obligations of each Credit Party which is a party thereto enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, examinorship, receivership, moratorium or other laws affecting creditors’ rights generally and by general principles of equity. As of the Restatement Effective Date, each Credit Party does not have any Subsidiaries except as set forth on the corporate structure chart attached as Schedule 6.1. Credit Parties and their Subsidiaries, taken as a whole, on a consolidated basis, are Solvent. No Credit Party is an Affected Financial Institution.
The audited consolidated financial statements relating to Borrower most recently delivered by Borrower to Agent pursuant to Section 7.6(a)(ii) have been prepared in accordance with GAAP, except as otherwise expressly noted therein, and fairly present in all material respects its financial condition and the results of its operation as at the dates and for the periods set forth therein, except as otherwise expressly noted therein. The unaudited consolidated financial statements relating to Borrower most recently delivered by Borrower to Agent pursuant to Section 7.6(a)(i) have been prepared in accordance with GAAP, except as expressly noted therein, and fairly present in all material respects its financial condition and the results of its operation as at the dates and for the periods set forth therein, subject in each case to the absence of footnotes and to normal year-end audit adjustments. The projections relating to Borrower most recently delivered by Borrower to Agent pursuant to Section 4.1 or Section 7.6(a)(iv) were prepared in good faith based upon assumptions believed to be reasonable at the time of preparation and delivery (it being understood that such projections may vary from actual results and that such variances may be material). Since December 31, 2021, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect; provided that, solely with respect to determining whether a Material Adverse Effect under clause (a) of the definition of Material Adverse Effect has occurred or could reasonably be expected to occur during the Designated Period, the effects of the COVID-19 pandemic on the results of operations of the Borrower and its Subsidiaries that have been disclosed in writing to the Agent and the Lenders prior to the Second Amendment Effective Date shall be disregarded.
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As of the Restatement Effective Date, (a) the chief executive office of each Credit Party is located in the jurisdiction set forth on its Information Certificate and (b) the only locations of Collateral with a value in excess of $1,500,000 of any of the Credit Parties (other than vehicles and assets temporarily in transit or sent for repair), if any, are the addresses set forth in its Information Certificate.
The Liens granted to Agent under the applicable Financing Agreements constitute valid Liens in favor of Agent for the benefit of the Secured Parties in and upon the Collateral and when (a) financing statements and other filings in appropriate form are filed in the applicable offices of each Credit Party’s jurisdiction of organization or formation and in each jurisdiction in which it has assets located (if required by Applicable Law) and applicable documents are filed and recorded, as applicable, in the Intellectual Property Offices in Canada and the United States and (b) upon the taking of possession or control by Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to Agent to the extent possession or control by Agent is required by the applicable Financing Agreement), the Liens created by the applicable Financing Agreements shall constitute fully perfected first priority Liens so far as possible under Applicable Law on, and security interests in (to the extent intended to be created thereby and required to be perfected under the applicable Financing Agreements), all right, title and interest of the grantors in such Collateral in each case free and clear of any Liens other than Permitted Liens. Each Credit Party and each Subsidiary thereof has good and marketable title in fee simple (or local law equivalent) to, or valid leasehold interests in, all real property necessary in the ordinary conduct of its business, free and clear of all Liens except for minor defects in title that do not materially interfere with its ability to conduct its business thereon or to utilize such assets for their intended purposes and Permitted Liens. Each Credit Party and each Subsidiary thereof owns or possesses rights to use all material franchises, licenses, copyrights, copyright applications, patents, patent rights or licenses, patent applications, trademarks, trademark rights, service mark, service mark rights, trade names, trade name rights, copyrights and other intellectual property rights (collectively, “IP Rights”) with respect to the foregoing which are necessary to conduct its business, as currently conducted, except to the extent such failure to own or possess, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. The conduct of the business of any Credit Party or any Subsidiary as currently conducted or as contemplated to be conducted does not infringe upon or violate any IP Rights held by any other Person except for such infringements and violations which, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Borrower and its Subsidiaries have filed, or caused to be filed, in a timely manner (with extensions) all Tax returns, reports and declarations which are required to be filed by it (except those in respect of Taxes the calculation or payment of which are being contested in good faith by appropriate proceedings diligently pursued and available to it and except for those returns for those jurisdictions in which failure to do so would not have a Material Adverse Effect). All information in such Tax returns, reports and declarations is complete and accurate in all material respects. Borrower and its Subsidiaries have paid or caused to be paid all Taxes due and payable or claimed due and payable in any assessment received by it, except Taxes (a) the validity of which are being contested in good faith by appropriate proceedings
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diligently pursued and available to it and with respect to which adequate reserves have been set aside on its books or (b) for which the failure to pay would not have a Material Adverse Effect. Adequate provision has been made by Borrower and its Subsidiaries for the payment of all accrued and unpaid Taxes whether or not yet due and payable and whether or not disputed.
Except as disclosed in Borrower’s Form 10-K, to its knowledge, there is no action, suit, proceeding or claim by any Person pending or threatened in writing against any Credit Party and each Subsidiary thereof or its assets or business, which in each of the foregoing cases, could reasonably be expected to result in a Material Adverse Effect.
Each Credit Party and each Subsidiary thereof is in compliance in all respects with all Applicable Laws, licenses, permits, approvals and orders of any Governmental Authority except in such instances in which (a) such Applicable Law or license, permit, approval or order is being contested in good faith by appropriate proceedings diligently conducted or (b) the lack of compliance could not reasonably be expected to have a Material Adverse Effect. The execution, delivery and performance by each Credit Party of the Financing Agreements to which it is a party do not and will not (a) require any governmental approval where the failure to obtain such approval could reasonably be expected to have a Material Adverse Effect or (b) require any consent or authorization of, filing with, or other act in respect of, a Governmental Authority and no consent of any other Person is required in connection with such execution, delivery and performance other than (x) consents, authorizations, filings or other acts or consents for which the failure to obtain or make could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (y) consents, authorizations, filings or other acts or consents which have been duly obtained, taken, given or made and are in full force and effect and (z) notices and filings made in connection with the security interests granted under the Financing Agreements.
As of the Restatement Effective Date, no information, taken as a whole, furnished by or on behalf of each Credit Party (other than projected financial information, pro forma financial information and information of a general economic or industry nature) in writing to Agent or a Lender in connection with any of the Financing Agreements or any transaction contemplated hereby or thereby (as modified or supplemented by other written information so furnished), when taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein (when taken as a whole), in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected and pro forma financial information, Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation and delivery, it being understood that such projections may vary from actual results and that such variances may be material.
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Except as would not reasonably be expected to result in material liability to the Borrower and its Subsidiaries or except as disclosed in the Borrower’s Form 10-K:
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Without limiting Section 6.7:
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As of the Restatement Effective Date, Guarantors are the only Material Subsidiaries of Borrower.
As of the Restatement Effective Date, no Credit Party or Subsidiary thereof is party to any collective bargaining agreement and no labor union has been recognized as the representative of any material portion of its employees. Each Credit Party knows of no pending, threatened or contemplated strikes, work stoppage or other collective labor disputes involving its employees or those of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect.
No event, circumstance or omission has occurred or is continuing which constitutes a Default or an Event of Default.
The Obligations rank and shall continue to rank senior in priority of payment to all subordinated Debt of each Credit Party and shall be designated as “Senior Indebtedness” under all instruments and documents, now or in the future, relating to all subordinated Debt of such Credit Party.
With respect to each parcel of real property owned by a Credit Party subject to a Mortgage and located in the United States (and no such parcel exists as of the Restatement Effective Date), all flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in accordance with the requirements hereunder.
All representations and warranties contained in any of the Financing Agreements shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Agent and each Lender on the date of each additional borrowing or other credit accommodation hereunder and shall be conclusively presumed to have been relied on by Agent and each Lender regardless of any investigation made or information possessed by Agent or any Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which any Credit Party or any Subsidiary thereof shall now or hereafter give, or cause to be given, to Agent or any Lender.
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AFFIRMATIVE COVENANTS
Until all of the non-contingent Obligations have been paid and satisfied in full, all Letter of Credit Accommodations have been terminated or expired (or been cash collateralized or backstopped on terms satisfactory to Agent) and the Commitment terminated, each Credit Party will, and will cause each of its Subsidiaries to:
Except to the extent otherwise permitted herein, preserve, renew and keep in full, force and effect (a) its legal existence and (b) its material rights and franchises, permits, licenses, approvals, authorizations, leases and contracts necessary to carry on the business as presently or proposed to be conducted; provided, no Subsidiary (other than a Credit Party) shall be required to preserve any such existence and no Credit Party or a Subsidiary thereof shall be required to preserve any such right or franchise, permit, license, approval, authorization, lease and contract if such Person shall determine that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to Lenders. Each Credit Party shall give Agent prompt written notice of any change in its legal name, which notice shall set forth the new name and it shall deliver to Agent a certified copy of the articles of amendment providing for the name change immediately following its filing.
Give Agent reasonable prior written notice if a Credit Party intends to have assets (other than goods in transit) with fair market value in excess of $1,000,000 located in a Province of Canada not set forth in the Information Certificates as of the Restatement Effective Date.
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Duly pay and discharge all Taxes, upon or against it or its properties or assets, except for (a) Taxes, the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to it and with respect to which adequate reserves have been set aside on its books; provided, that the execution or other enforcement of any Lien with respect to such contested Taxes is effectively stayed or otherwise not occurring during such proceedings or (b) Taxes, for which the failure to pay is not reasonably expected to have a Material Adverse Effect.
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Notwithstanding the foregoing, (i) in the event that Borrower delivers to Agent an Annual Report for Borrower on Form 10-K for such Fiscal Year within ninety (90) days after the end of such Fiscal Year, such Form 10-K shall satisfy all requirements of paragraph (a)(ii) of this Section to the extent that it does not contain any “going concern” or like qualification, exception or explanatory paragraph or qualification or any exception or explanatory paragraph as to the scope of such audit (other than any such exception or explanatory paragraph, but not a qualification, expressly permitted to be contained therein under clause (a)(ii) of this Section 7.6) and (ii) in the event that Borrower delivers to Agent a Quarterly Report for Borrower on Form 10-Q for such Fiscal Quarter within forty five (45) days after the end of such Fiscal Quarter, such Form 10-Q shall satisfy all requirements of paragraph (a)(i) of this Section 7.6.
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Except as would not reasonably be expected to result in material liability to the Borrower and its Subsidiaries:
(a) Not terminate any U.S. Pension Plan so as to incur any liability to the Pension Benefit Guaranty Corporation, (b) make all required contributions to any Plan which it is obligated to pay under Section 302 of ERISA, Section 412 of the Code or the terms of such Plan, (c) not engage in a transaction that could be subject to Section 4069 or 4212(c) of ERISA, or (d) not allow or suffer to exist any occurrence of a reportable event or any other event or condition which presents a risk of termination by the Pension Benefit Guaranty Corporation of any Plan that is a single employer plan, which termination could result in any liability to the Pension Benefit Guaranty Corporation, except, in each case, as would not reasonably be expected to result in material liability to the Borrower and its Subsidiaries.
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With respect to the IP Collateral:
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In the case of IMAX Barbados, at all times:
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From time to time, Borrower may request that Agent release Agent’s mortgage or pledge and Lien in the Equity Interests of IMAX Cayman and Agent shall so release (without requiring any consent or approval of any Secured Party) if Agent is satisfied that its remaining mortgage or pledge and Lien in the Equity Interests of IMAX Cayman complies with Section 7.13(a) through (d) above.
During the Designated Period, cause each Credit Party organized under the laws of United States or Canada (or any state, province or political subdivision thereof) to (a) maintain any and all Control Agreements previously entered into, or entered into pursuant to this Section, in full force and effect, (b) promptly notify the Agent in writing of (i) any new Deposit Accounts or Securities Accounts (other than Excluded Accounts) owned by it and located in the United States or Canada or (ii) any of its Deposit Accounts or Securities Accounts located in the United States or Canada that ceases to be an Excluded Account, and (c) within thirty (30) days of the receipt of a notice described in Section 7.14(b) (or such later date as agreed to by the Agent in its sole discretion) in the case of any Deposit Accounts or Securities Accounts opened, or which cease to be Excluded Accounts, prior to the termination of the Designated Period, cause such Deposit Accounts or Securities Accounts to be subject to a Control Agreement; provided that upon termination of the Designated Period, upon the written request of the Borrower, the Agent shall promptly provide to the Borrower and such depository bank or securities intermediary, as the case may be, notices of termination as required by such Control Agreements to terminate such Control Agreements.
The parties hereto acknowledge and agree that, if there is any improved Material Real Property subject to a Mortgage, any increase, extension, or renewal of any of the Loans or Commitments (including any Incremental Term Loan and any Incremental Revolving Loan Increase, but excluding (a) any continuation or conversion of borrowings, (b) the making of any Revolving Loans or Swingline Loans or (c) the issuance, renewal or extension of Letter of Credit Accommodations) shall be subject to (and conditioned upon): (i) the prior delivery of all flood zone determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to such improved Material Real Property subject to a Mortgage reasonably sufficient to evidence
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compliance with Flood Insurance Laws and (ii) the earlier to occur of (A) the date that occurs fifteen (15) Business Days after delivery to the Lenders of the documentation set forth in clause (i) of this Section to the Lenders (which may be delivered electronically and which the Agent shall deliver as promptly as reasonably practicable after receipt from the applicable Credit Party) or (B) Agent’s receipt of written confirmation from each of the Lenders that flood insurance due diligence and flood insurance compliance has been completed by such Lender (such written confirmation not to be unreasonably withheld, conditioned or delayed) prior to the expiration of such thirty (30) day period; provided, however, that so long as the Credit Parties have otherwise satisfied the requirements of Section 7.12(c) but for the requirements of this Section 7.15, the Credit Parties’ obligations under Section 7.12(c) to grant a Mortgage with respect to any improved Material Real Property within the 90-day time period described therein shall be extended for so long as is required to ensure compliance with the requirements of this Section 7.15.
Execute and deliver the documents, take the actions and complete the tasks set forth on Schedule 7.16, in each case within the applicable corresponding time limits specified on such schedule (as such times may be extended by the Agent).
NEGATIVE COVENANTS
Until all of the non-contingent Obligations have been paid and satisfied in full, all Letter of Credit Accommodations have been terminated or expired (or been cash collateralized or backstopped on terms satisfactory to Agent) and the Commitments terminated, the Credit Parties will not, and will not permit any of their respective Subsidiaries to:
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Notwithstanding anything to the contrary herein, during the Designated Period, the Borrower and its Subsidiaries shall not sell, assign, lease, transfer, abandon or otherwise dispose of (including by way of a sale-leaseback or a division) any Collateral, assets or property, other than the Playa Vista Property, to any other Person pursuant to clause (b)(i) of this Section 8.1 if the aggregate consideration for all such sales would exceed $25,000,000.
For the avoidance of doubt, nothing in this Section 8.1 shall limit or restrict (a) the sale of any Permitted Convertible Debt by the Borrower, (b) the sale of any Permitted Warrant Transaction by the Borrower, (c) the purchase of any Permitted Bond Hedge Transaction nor (d) the performance by Borrower of its obligations under any Permitted Convertible Debt, any Permitted Warrant Transaction or any Permitted Bond Hedge Transaction.
Create, incur, assume or suffer to exist any Lien on any of its assets or properties (other than the Playa Vista Property), including the Collateral and the Mississauga Property except:
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Notwithstanding anything to the contrary herein, during the Designated Period, (A) the Borrower and its Subsidiaries shall not create, incur or assume (1) Liens securing Permitted Debt pursuant to clause (p) above in an aggregate amount in excess of $20,000,000 and (2) Liens under clause (i) above unless after giving effect to the creation, incurrence or assumption thereof the Senior Secured Net Leverage Ratio does not exceed 3:25:1.00 as demonstrated in writing by Borrower to Agent prior to any such creation, incurrence or assumption being made and (B) any Liens created, incurred or assumed pursuant to Section 8.2(q) shall be limited solely to the assets of the applicable Subsidiary that is the primary obligor of the Debt and do not extend to the assets or property of the Borrower or any other Credit Party. For the avoidance of doubt no Liens in existence on the First Amendment Effective Date shall be deemed to have been created incurred or assumed during the Designated Period for purposes of determining the amount of the adjusted baskets and thresholds that apply during the Designated Period pursuant to this paragraph.
Incur, create, assume, become or be liable in any manner with respect to, or permit to exist, any Debt except:
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Notwithstanding anything to the contrary herein, during the Designated Period, the exceptions set forth above in this Section 8.3 shall be further limited as follows: (A) the Borrower shall not, and shall not permit any of its Subsidiaries to incur, create, assume, or become liable in any manner with respect to any Debt pursuant to clauses (m), (o), (p), and (r) above, (B) the Borrower shall not, and shall not permit any of its Subsidiaries to incur, create, assume, or become liable in any manner with respect to any Debt (1) pursuant to clause (c) above in an aggregate amount for all such Debt not in excess of $15,000,000, (2) pursuant to clause (l) above in an aggregate amount for all such Debt not in excess of (x) $50,000,000 plus (y) to the extent that the $50,000,000 in clause (B)(2)(x) of this sentence has been fully utilized, to the extent constituting Debt, up to an additional $25,000,000 in the form of, or to fund, substantially concurrent Investments permitted under Section 8.4(h) as modified by the last sentence of Section 8.4, and (3) pursuant to clause (q) in an aggregate amount for all such Debt not to exceed $10,000,000 of Debt of IMAX China HK and/or IMAX HK and $30,000,000 of Debt of IMAX China Multimedia and/or IMAX China Theatre and (C) any Incremental Equivalent Debt in the form of a pari passu secured term loan shall be subject to Section 2.6(d)(vii)(B) as if references therein to “Incremental Term Loan” referred to such Incremental Equivalent Debt; provided that the Borrower may guarantee any Debt of the Playa Vista Borrower. For the avoidance of doubt no Debt in existence on the First Amendment Effective Date shall be deemed to have been incurred, created or assumed, nor shall the Borrower or any of its Subsidiaries be deemed to have become liable for such Debt, during the Designated Period for purposes of determining amount of the adjusted baskets and thresholds that apply during the Designated Period pursuant this paragraph.
Directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Equity Interests or Debt or all or a substantial part of the assets or property of any person or consummate any Acquisition, or agree to do any of the foregoing (each, an “Investment”), except for:
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Any Future Permitted Transaction by Borrower and any investment, license, purchase or other transaction reasonably related thereto and in furtherance thereof shall be permitted hereunder and the amount of any such investment, license, purchase or other transaction shall not be included in (or count against) any of the foregoing basket amounts described in this Section 8.4.
Notwithstanding anything to the contrary herein, during the Designated Period, the exceptions set forth above in this Section 8.4 shall be further limited as follows: (A) the amount of Investments permitted pursuant to clause (d) shall be reduced to $0, (B) no Investments may be made pursuant to clauses (p)
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and (r) above, (C) the amount of Investments permitted pursuant to clauses (h) and (j)(iii) shall not exceed (1) with respect to clause (h) the sum of (x) $50,000,000 plus (y) to the extent that the $50,000,000 in clause (C)(1)(x) of this sentence has been fully utilized, up to an additional $25,000,000 so long as at the time of making of any Investment utilizing the amount under this clause (C)(1)(y), no Default of Event of Default has occurred and is continuing or would result therefrom and Liquidity (as determined based on cash and Cash Equivalents as of the most recent month end for which financial statements have been delivered pursuant to Section 7.6 and after giving effect to such Investment and any Revolving Loan Exposure incurred in connection therewith) shall be at least $150,000,000 as certified in a certificate, in form and substance reasonably satisfactory to the Agent and duly executed by an authorized officer of the Borrower and (2) with respect to clause (j)(iii), $0 other than Investments in the form of the intercompany Debt permitted under Section 8.3(q) and capitalization of the Borrower’s interest in the Playa Vista Borrower, (D) the Borrower’s and its Subsidiaries’ Investments existing as of the First Amendment Effective Date in (1) Maoyan Entertainment, in an aggregate amount not to exceed the amount set forth on the most recent Compliance Certificate delivered prior to the First Amendment Effective Date and (2) Dreamscape Immersive Inc., in an aggregate amount not to exceed $1,000,000, shall each be deemed permitted pursuant to clause (h) without any reduction of the amount described in clause (C)(1) of this sentence.
Directly or indirectly, declare or pay any dividends on account of any of its Equity Interests now or hereafter outstanding, or redeem, retire, defease, purchase or otherwise acquire any of its Equity Interests, or make any other distribution (by reduction of capital or otherwise) in respect of any such Equity Interests or prepay, repay, redeem, purchase, defease or acquire for value (including (x) by way of depositing with any trustee with respect thereto money or securities before due for the purpose of paying when due and (y) at the maturity thereof) any Permitted Convertible Debt or other unsecured Debt incurred pursuant to Section 8.3(h) (each, a “Restricted Payment”) with the exception that:
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Notwithstanding anything to the contrary herein, during the Designated Period, the exceptions set forth above in this Section 8.5 shall be further limited as follows: (A) the Borrower shall not, and shall not permit any of its Subsidiaries to directly or indirectly declare, pay or make any Restricted Payment (including pursuant to any carry-over from prior years) pursuant to clauses (e) and (k) above, (B) the Borrower shall not, and shall not permit any of its Subsidiaries to directly or indirectly declare, pay or make Restricted Payments (including pursuant to any carry-over from prior years) pursuant to clause (i) of this Section in an aggregate amount in excess of $15,000,000, (C) the Borrower shall not, and shall not permit any of its Subsidiaries to directly or indirectly declare, pay or make Restricted Payments (including pursuant to any carry-over from prior years) pursuant to clause (j) above except that (1) so long as after giving effect thereto and any Debt incurred in connection therewith, the Borrower is in pro forma compliance with each of the then applicable covenants in Article 9, IMAX Cayman may redeem or purchase its respective Equity Interests in an aggregate amount not to exceed $40,000,000 which shall be financed solely from cash at IMAX Cayman and (2) so long as after giving effect thereto and any Debt incurred in connection therewith, on a Pro Forma Basis, Liquidity is not less than $300,000,000, the Borrower may purchase its respective Equity Interests in an aggregate amount not to exceed $60,000,000 and (D) the Borrower shall not and shall not permit any of its Subsidiaries to make any prepayment, repayment, redemption, purchase, defeasance or acquisition for value of any Permitted Convertible Debt other than (1) payments of interest thereon, and mandatory prepayment, redemption, repurchase or defeasance obligations in connection with a change of control, delisting, fundamental change or asset sale in each case in accordance with clause (f)(i) above and any customary redemptions in lieu of payment of withholding taxes arising from a change in Applicable Law after the date of issuance of such Permitted Convertible Debt and (2) in connection with a Permitted Refinancing of such Permitted Convertible Debt. For purposes of determining any carry-over amounts in this Section 8.5, it is acknowledged and agreed that with respect to any calendar year that ends during the Designated Period such carry-over amounts shall be determined based on the basket and threshold amounts set forth in this paragraph and with respect to any calendar year that ends after the Designated Period such carry-over amount shall be determined based on the basket and threshold amounts set forth in the applicable clause of Section 8.5 without giving effect to the adjustments in this paragraph.
Directly or indirectly, (a) purchase, acquire or lease any property from, or sell, transfer or lease any property to, any officer, director, agent or other person affiliated with it, except in the ordinary course of and pursuant to the reasonable requirements of its business and upon fair and reasonable terms no less favorable to it than it would obtain in a comparable arm’s length transaction with an unaffiliated person or (b) make any payments of management, consulting or other fees for management or similar services, or of any Debt (including under the USERP) owing to any officer, employee, shareholder, director or other person affiliated with it except (i) reasonable compensation to officers, employees and directors for services rendered to it in the ordinary course of business and (ii) payments to Bradley J. Wechsler and Richard L. Gelfond in accordance with the USERP.
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(a) Change its Fiscal Quarters or its Fiscal Year, (b) make any material change to its business or the conduct thereof from that existing or being conducted as of the Restatement Effective Date, other than changes that would not be reasonably expected to have a Material Adverse Effect or (c) make any material changes to its accounting policies in effect as of the Restatement Effective Date, except as required or permitted by GAAP.
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FINANCIAL COVENANT
Except during the period from the First Amendment Effective Date through and including the earlier of (a) March 31, 2022 and (b) the date upon which the Borrower provides a Designated Period Suspension Notice, Borrower shall not permit the Senior Secured Net Leverage Ratio as of the last day of any Fiscal Quarter to be greater than 3.25:1.00 (which ratio will be increased by 0.5x to 3.75:1.00 for the four (4) consecutive Fiscal Quarters following a Material Acquisition), which shall be calculated and tested on the last day of each Fiscal Quarter on a trailing four (4) Fiscal Quarter basis.
The Borrower shall not permit Liquidity as of the last day of each calendar month to be less than $75,000,000 at any time from and after the First Amendment Effective Date through and including the earlier of (a) December 31, 2022 and (b) the end of the Designated Period.
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EVENTS OF DEFAULT AND REMEDIES
The occurrence and continuation of any one or more of the following events are referred to herein individually as an “Event of Default”, and collectively as “Events of Default”:
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the Issuing Lender to make such payments to the Agent and, in the event that the Agent shall consent to the making of such payments directly to the Lenders and the Issuing Lender, to pay to the Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agent and its agents and counsel, and any other amounts due the Agent under Sections 2.2(b), 3.7, 12.5 and 12.6.
ASSIGNMENT AND PARTICIPATIONS: APPOINTMENT OF AGENT
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(1) a Payment/Insolvency Event of Default has occurred and is continuing;
(2) such assignment is to an Eligible Transferee; or
(3) Borrower does not object to such assignment within ten (10) Business Days of receipt of notice of such assignment;
In the case of an assignment by a Lender under this Section 11.1, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as all other Lenders hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitment or assigned portion thereof from and after the date of such assignment. Borrower hereby acknowledges and agrees that any assignment shall give rise to a direct obligation of Borrower to the assignee and that the assignee shall be considered to be a “Lender” hereunder. In all instances, each Lender’s liability to make Loans hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the Commitment. In the event any Lender assigns or otherwise transfers all or any part of the Obligations, such Lender shall provide prior notice to Borrower and Borrower shall, upon the request of Agent or such Lender, execute new notes in exchange for the notes, if any, being assigned. Borrower agrees from time to time to execute notes (in form and substance satisfactory to Agent, acting reasonably) evidencing the Loans if requested by Agent. Notwithstanding the foregoing provisions of this Section 11.1(a),
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any Lender may at any time pledge the Obligations held by it and such Lender’s rights under this Agreement and the other Financing Agreements to a Federal Reserve Bank, the Bank of Canada or the Canada Deposit Insurance Corporation or foreign equivalent; provided, that no such pledge shall release such Lender from such Lender’s obligations hereunder or under any other Financing Agreement or substitute any such pledgee or assignee for such Lender as a party hereto.
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Agent: (i) may treat the payee of any note as the holder thereof until Agent receives written notice of the assignment or transfer thereof signed by such payee and in form reasonably satisfactory to Agent; (ii) may consult with legal counsel, independent public accountants and other experts selected by it; (iii) makes no warranty or representation to any Secured Party and shall not be responsible to any Secured Party for any statements, warranties or representations made in or in connection with this Agreement or the other Financing Agreements; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Financing Agreements on the part of any Credit Party or to inspect the Collateral (including the books and records) of any Credit Party; (v) shall not be responsible to any Secured Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Financing Agreements or any other instrument or document furnished pursuant hereto or thereto; and (vi) shall incur no liability under or in respect of this Agreement or the other Financing Agreements by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopy, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.
With respect to its Commitment and Loans hereunder, Agent shall have the same rights and powers under this Agreement and the other Financing Agreements as any other Lender and may exercise the same as though it were not Agent; and the term “Lender” or “Lenders” hereunder shall, unless otherwise expressly indicated, include Agent in its individual capacity. Agent and its affiliates may lend money to, invest in, and generally engage in any kind of business with any Credit Party, any of its affiliates and any Person who may do business with or own securities of any Credit Party or any such affiliate, all as if Agent were not Agent and without any duty to account therefore to Secured Parties. Agent and its affiliates may accept fees and other consideration from any Credit Party for services in connection with this Agreement or otherwise without having to account for the same to Secured Parties. Each Secured Party acknowledges the potential conflict of interest between Agent as a Lender and Agent as agent hereunder.
Each Lender acknowledges that it has, independently and without reliance upon Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit and financial analysis of each Credit Party and its own decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement. Each Lender acknowledges the potential conflict of interest of each other Lender as a result of Lenders holding disproportionate interests in the Commitment and the Loans, and expressly consents to, and waives any claim based upon, such conflict of interest. Each Lender acknowledges and agrees that (a) the Financing Agreements set forth the terms of a commercial lending facility, (b) it is engaged in making, acquiring, purchasing or holding commercial loans in the ordinary course and is entering into this Agreement and
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the other Financing Agreements to which it is a party as a Lender for the purpose of making, acquiring, purchasing and/or holding the commercial loans set forth herein as may be applicable to it, and not for the purpose of making, acquiring, purchasing or holding any other type of financial instrument and (c) it is sophisticated with respect to decisions to make, acquire, purchase or hold the commercial loans applicable to it and either it or the Person exercising discretion in making its decisions to make, acquire, purchase or hold such commercial loans is experienced in making, acquiring, purchasing or holding commercial loans.
Lenders agree to indemnify Agent (to the extent not reimbursed by Credit Parties and without limiting the obligations of Credit Parties hereunder), ratably according to their respective Pro Rata Shares, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against Agent in any way relating to or arising out of this Agreement or any other Financing Agreement or any action taken or omitted to be taken by Agent in connection therewith; provided, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from Agent’s gross negligence or willful misconduct as determined by a final and non-appealable judgment or court order binding on Agent of a court of competent jurisdiction. Without limiting the foregoing, each Lender agrees to reimburse Agent promptly upon demand for its ratable share according to its Pro Rata Share of any out-of-pocket expenses (including reasonable fees of counsel) incurred by Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement and each other Financing Agreement, to the extent that Agent is not reimbursed for such expenses by Credit Parties.
Except for action expressly required of Agent hereunder and under the other Financing Agreements, Agent shall in all cases be fully justified in failing or refusing to act hereunder and thereunder unless it shall receive further assurances to its satisfaction from Lenders of their indemnification obligations under Section 11.6 hereof against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action or if any such action may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Insolvency Law.
Each Lender authorizes and directs Agent to enter into this Agreement and the other Financing Agreements. Each Lender agrees that any action taken by Agent in accordance with the terms of this Agreement or the other Financing Agreements and the exercise by Agent of its powers set forth therein or herein, together with such other powers that are reasonably incidental thereto, shall be binding upon Lenders.
By signing this Agreement, each Lender:
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In addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, upon the occurrence and during the continuance of any Event of Default and subject to Section 11.13(f), each Lender and each of its respective Affiliates is hereby authorized at any time or from time to time, without notice to Borrower or to any other Person other than Agent, any such notice being hereby expressly waived, to setoff and to appropriate and to apply any and all balances held by it at any of its offices for the account of any Credit Party (regardless of whether such balances are then due to any Credit Party) and any other properties or assets (other than deposits in fiduciary accounts as to which a Credit Party is acting as fiduciary for another Person who is not a Credit Party and other than payroll or trust fund accounts) at any time held or owing by that Lender or any such Affiliates to or for the credit or for the account of any Credit Party against and on account of any of the Obligations that are
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not paid when due; provided, that Lenders and their respective Affiliates exercising such setoff rights shall give notice thereof to such Credit Party promptly after exercising such rights; provided further that in the event that any Defaulting Lender or any Affiliate thereof shall exercise any such right of setoff, (x) all amounts so setoff shall be paid over immediately to the Agent for further application in accordance with the provisions of Section 3.8 and, pending such payment, shall be segregated by such Defaulting Lender or Affiliate of a Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent, the Issuing Lender, the Swingline Lender and the Lenders, and (y) the Defaulting Lender or its Affiliate shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender or any of its Affiliates as to which such right of setoff was exercised. Except in the case of (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (B) the application of cash collateral provided for herein, any Lender or any of its Affiliates exercising a right of setoff or otherwise receiving any payment on account of the Obligations in excess of its Pro Rata Share thereof shall purchase for cash (and the other Lenders shall sell) such participations in each such other Lender’s Pro Rata Share of the Obligations as would be necessary to cause such Lender to share the amount so setoff or otherwise received with the other Lenders in accordance with their respective Pro Rata Shares. Each Credit Party agrees, to the fullest extent permitted by law that (a) any Lender may exercise its right to setoff with respect to amounts in excess of its Pro Rata Share of the Obligations and may sell participations in such amounts so setoff to the other Lenders; and (b) any Lender so purchasing a participation in a Loan made or other Obligations held by the other Lenders may exercise all rights of setoff, bankers’ lien, counterclaim or similar rights with respect to such participation as fully as if such Lender was a direct holder of the Loan and the other Obligations in the amount of such participation. Notwithstanding the foregoing, if all or any portion of the setoff amount or payment otherwise received is thereafter recovered from a Lender or any of its Affiliates that have exercised the right of setoff, the purchase of participations by that Lender shall be rescinded and the purchase price restored without interest.
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The Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other matter related to the CDOR Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, the Eurocurrency Rate, the Adjusted Eurocurrency Rate or any other Benchmark, or any component definition thereof or rates referred to in the definition thereof, or with respect to any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it
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may or may not be adjusted pursuant to Section 3.2(c), will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the CDOR Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, the Eurocurrency Rate, the Adjusted Eurocurrency Rate, such Benchmark or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of a Benchmark, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to the Borrower. The Agent may select information sources or services in its reasonable discretion to ascertain any Benchmark, any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
GOVERNING LAW; JURISDICTION, ETC.
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Each Credit Party hereby expressly waives demand, presentment, protest and notice of protest and notice of dishonor with respect to any and all instruments and commercial paper, included in or evidencing any of the Obligations or the Collateral, and any and all other demands and notices of any kind or nature
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whatsoever with respect to the Obligations, the Collateral and this Agreement, except such as are expressly provided for herein. No notice to or demand on any Credit Party which Agent may elect to give shall entitle any Credit Party to any other or further notice or demand in the same, similar or other circumstances.
Subject to Section 11.14, neither this Agreement nor any provision hereof shall be amended or waived, nor consent to any departure by any Credit Party therefrom permitted, orally or by course of conduct, but only by a written agreement signed by an authorized officer of each applicable Lender (if any) and Agent, and as to amendments, as also signed by an authorized officer of each Credit Party. Agent shall not, by any act, delay, omission or otherwise be deemed to have expressly or impliedly waived any of its rights, powers and/or remedies unless such waiver shall be in writing and signed by an authorized officer of Agent. Any such waiver shall be enforceable only to the extent specifically set forth therein. A waiver by Agent of any right, power and/or remedy on any one occasion shall not be construed as a bar to or waiver of any such right, power and/or remedy which Agent would otherwise have on any future occasion, whether similar in kind or otherwise.
Each Credit Party waives all rights to interpose any claims, deductions, setoffs or counterclaims of any nature (other than compulsory counterclaims) in any action or proceeding with respect to this Agreement, the Obligations, the Collateral or any matter arising therefrom or relating hereto or thereto.
Each Credit Party shall indemnify and hold Arranger, Agent, Issuing Lender and each Lender, and their respective directors, officers, agents, representatives, employees and counsel (each such Person, an “Indemnitee”), harmless from and against any and all losses, claims, damages, liabilities, costs or expenses imposed on, incurred by or asserted against any of them in connection with any litigation, investigation, claim or proceeding commenced or threatened related to (x) the negotiation, preparation, execution, delivery, enforcement, performance or administration of any Financing Agreements, or any undertaking or proceeding related to any of the transactions contemplated hereby or any act, omission, event or transaction related or attendant thereto or the relationship between any Credit Party, on one hand, and an Indemnitee, on the other hand or (y) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by any Credit Party or any of its Subsidiaries, or any Environmental Liability related in any way to any Credit Party or any of its Subsidiaries, including amounts paid in settlement, court costs, and the fees, expenses and disbursements of counsel and others incurred in connection with investigating, preparing to defend or defending any such litigation, investigation, claim or proceeding (but limited, in the case of such fees, expenses and disbursements of counsel, to the reasonable, documented and invoiced fees, expenses and disbursements of one primary counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, a single outside local and a single outside specialty counsel in each other jurisdiction material to the interests of all Indemnitees taken as a whole for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs Borrower of such conflict, one additional primary counsel for all Indemnitees subject to such conflict taken as a whole)). Such indemnification described in clauses (x) and (y) above shall not apply to losses, claims, damages,
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liabilities, costs or expenses (i) resulting from the bad faith, fraud, gross negligence or willful misconduct of an Indemnitee as determined pursuant to a final non-appealable order of a court of competent jurisdiction, (ii) relating to disputes among Indemnitees that does not involve an act or omission by Credit Parties, (iii) resulting from a material breach of an Indemnitee’s obligations to a Credit Party hereunder as determined pursuant to a final non-appealable order of a court of competent jurisdiction or (iv) resulting from settlements of any such litigation, investigation, claim or proceeding effected by the Indemnitees without the prior written consent of Borrower (which consent shall not be unreasonably withheld, delayed or conditioned); provided that if such claim or action is settled with the Borrower’s written consent or if there is a final judgement by a court of competent jurisdiction in any such actions, the Borrower agrees to indemnify and hold harmless each Indemnitee from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with this Section; provided that any indemnification obligations owed by Credit Parties hereunder and not otherwise related to the foregoing settlement shall nonetheless remain an obligation of Credit Parties. To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section 12.5 may be unenforceable because it violates any Applicable Law, each Credit Party shall pay the maximum portion which it is permitted to pay under Applicable Law to each Indemnitee in satisfaction of indemnified matters under this Section 12.5. This Section 12.5 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. The foregoing indemnity shall survive the payment of the Obligations and the termination of this Agreement.
Upon demand by Agent, each Credit Party agrees within ten (10) days of receipt of a reasonably detailed written invoice therefor (or such longer period as Agent may agree), to pay to Arranger, Agent, Issuing Lender and Lenders all reasonable out-of-pocket costs, expenses and filing fees paid or payable in connection with the structuring, arrangement, syndication, preparation, negotiation, execution, delivery, recording, administration, collection, liquidation, restructuring, enforcement and defense of the Obligations, Agent’s and each Lender’s rights in the Collateral, the Financing Agreements and all other documents related hereto or thereto, including any amendments, supplements or consents which may hereafter be contemplated (whether or not executed) or entered into in respect hereof and thereof, including: (a) all costs and expenses of filing or recording or searching (including PPSA and UCC financing statement and other similar filing and recording fees, if applicable); (b) reasonable out-of-pocket costs and expenses of remitting loan proceeds and other items of payment, together with Agent’s customary, reasonable out-of-pocket charges and fees with respect thereto; (c) reasonable out-of-pocket costs and expenses of preserving and protecting the Collateral; (d) reasonable out-of-pocket costs and expenses paid or incurred in connection with obtaining payment of the Obligations, enforcing the security interests and liens of Agent, selling or otherwise realizing upon the Collateral, and otherwise enforcing the provisions of the Financing Agreements or defending any claims made or threatened against Agent and Lenders arising out of the transactions contemplated hereby and thereby (including preparations for and consultations concerning any such matters); (e) all reasonable out-of-pocket expenses including due diligence, negotiation, arrangement, syndication, restructuring, administration and amending of this Agreement; and (f) the fees, expenses and disbursements of counsel (including legal assistants) to Arranger, Agent, Issuing Lender, and Lenders in connection with any of the foregoing (but limited, in the case of such fees, expenses and disbursements of counsel, to the reasonable, documented and invoiced fees, expenses and disbursements of one primary counsel for Arranger, Agent, Issuing Lender and Lenders, taken as a whole (and, if reasonably determined by Agent to be necessary, a single outside local and a single outside special counsel in each jurisdiction material to the interests of
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all such Persons taken as a whole for all such Persons taken as a whole and, in the case of an actual or perceived conflict of interest where such Person affected by such conflict informs Borrower of such conflict, one additional primary counsel for all such Persons subject to such conflict taken as a whole)) and counsel otherwise retained with Borrower’s consent (which consent shall not be unreasonably withheld or delayed).
At the reasonable request of Agent at any time and from time to time, each Credit Party shall, at its expense, duly execute and deliver, or cause to be duly executed and delivered, such further agreements, documents and instruments, and do or cause to be done such further acts as may be necessary to evidence, perfect, maintain and enforce the Liens and the priority thereof in the Collateral and to otherwise effectuate the provisions or purposes of any of the Financing Agreements. Where permitted by law, each Credit Party hereby authorizes Agent to execute and file one or more PPSA, UCC or other financing statements or notices signed only by Agent or Agent’s representative.
MISCELLANEOUS
All notices, requests and demands hereunder shall be in writing and made to Agent and Lenders at their respective addresses set forth below and to Borrower (on behalf of itself and each other Credit Party) at its chief executive office set forth below, or to such other address as any party may designate by written notice to the other in accordance with this provision.
If to the Borrower:
IMAX Corporation
2525 Speakman Drive
Mississauga, Ontario
L5K 1B1, Canada
Attention of: Natasha Fernandes
Telephone No.: (905) 403-6457
Email: NFernandes@imax.com
If to Wells Fargo, as Administrative Agent:
Wells Fargo Bank, National Association
MAC D1109-019
1525 West W.T. Harris Blvd.
Charlotte, NC 28262
Attention of: Syndication Agency Services
Telephone No.: (704) 590-2706
Facsimile No.: (844) 879-5899
Email: Agencyservices.requests@wellsfargo.com
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With copies to:
Wells Fargo Commercial Banking
MAC E2019-041
350 West Colorado Blvd, 4th Floor
Pasadena, CA 91105
Attention of: Patrick M. Drum
Telephone No.: 310-270-8002
Facsimile No.: 855-729-3712
E-mail: Patrick.M.Drum@wellsfargo.com
If to any Lender:
To the address of such Lender set forth on the Register with respect to deliveries of notices and other documentation that may contain material non-public information.
Notices shall be deemed to have been given or made: if delivered in person, immediately upon delivery; if by email or facsimile transmission, immediately upon sending and upon confirmation of receipt; if by nationally recognized overnight courier service with instructions to deliver the next Business Day, one (1) Business Day after sending; and if by registered mail, return receipt requested, five (5) days after mailing.
If any provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate this Agreement as a whole, but this Agreement shall be construed as though it did not contain the particular provision held to be invalid or unenforceable and the rights and obligations of the parties shall be construed and enforced only to such extent as shall be permitted by Applicable Law.
The Financing Agreements and any other document referred to herein or therein shall be binding upon and inure to the benefit of and be enforceable by Agent, Lenders and each Credit Party and their respective successors and permitted assigns.
The Financing Agreements, any supplements hereto or thereto, and any instruments or documents delivered or to be delivered in connection herewith or therewith represents the entire agreement and understanding concerning the subject matter hereof and thereof between the parties hereto, and supersede all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or written. In the event of any inconsistency between the terms of this Agreement and any schedule or exhibit hereto, the terms of this Agreement shall govern.
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The division of this Agreement into sections and the insertion of headings and a table of contents are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
To the extent permitted by Applicable Law, the obligations of Borrower in respect of any amount due under this Agreement shall, notwithstanding any payment in any other currency (the “Other Currency”) (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the currency in which it is due (the “Agreed Currency”) that Agent may, in accordance with normal banking procedures, purchase with the sum paid in the Other Currency (after any premium and costs of exchange) on the Business Day immediately after the day on which Agent receives the payment. If the amount in the Agreed Currency that may be so purchased for any reason falls short of the amount originally due, Borrower shall pay all additional amounts, in the Agreed Currency, as may be necessary to compensate for the shortfall. Any obligation of Borrower not discharged by that payment shall, to the extent permitted by Applicable Law, be due as a separate and independent obligation and, until discharged as provided in this section, continue in full force and effect.
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original, and such counterparts together shall constitute one and the same agreement. The delivery of a facsimile or pdf copy of an executed counterpart of this Agreement shall be deemed to be valid execution and delivery of this Agreement, but the party delivering a facsimile or pdf copy shall deliver to the other party an original copy of this Agreement as soon as possible after delivering the facsimile or pdf copy.
The words “execute,” “execution,” “signed,” “signature,” “delivery” and words of like import in or related to this Agreement, any other Financing Agreement or any document, amendment, approval, consent, waiver, modification, information, notice, certificate, report, statement, disclosure, or authorization to be signed or delivered in connection with this Agreement or any other Financing Agreement or the transactions contemplated hereby shall be deemed to include Electronic Signatures or execution in the form of an Electronic Record, and contract formations on electronic platforms approved by the Agent, deliveries 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 recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Each party hereto agrees that any Electronic Signature or execution in the form of an Electronic Record shall be valid and binding on itself and each of the other parties hereto to the same extent as a manual, original signature. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the parties of a manually signed paper which has been converted into electronic form (such as scanned into pdf format), or an electronically signed paper converted into another format, for transmission, delivery and/or retention. Notwithstanding anything contained herein to the contrary, the Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the Agent pursuant to procedures approved by
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it; provided that, without limiting the foregoing, (a) to the extent the Agent has agreed to accept such Electronic Signature from any party hereto, the Agent and the other parties hereto shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of the executing party without further verification and (b) upon the request of the Agent or any Lender, any Electronic Signature shall be promptly followed by an original manually executed counterpart thereof. Without limiting the generality of the foregoing, each party hereto hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Agent, the Lenders and any of the Credit Parties, electronic images of this Agreement or any other Financing Agreement (in each case, including with respect to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (ii) waives any argument, defense or right to contest the validity or enforceability of the Financing Agreements based solely on the lack of paper original copies of any Financing Agreements, including with respect to any signature pages thereto.
Agent and each Lender which is subject to the Patriot Act or any other Anti-Money Laundering Laws hereby notifies each Credit Party that pursuant to the requirements of the Patriot Act or such other Anti-Money Laundering Laws, it is required to obtain, verify and record information that identifies each person or corporation who opens an account and/or enters into a business relationship with it, which information includes the name and address of each Credit Party and its Subsidiaries and other information that will allow Agent and such Lender to identify such person in accordance with the Patriot Act and any other Applicable Law. Each Credit Party is hereby advised that any Loans or Letter of Credit Accommodations hereunder are subject to satisfactory results of such verification.
Notwithstanding anything to the contrary in any Financing Agreement or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Financing Agreement, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
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To the extent that the Financing Agreements provide support, through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and, each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the FDIC under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Financing Agreements and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following:
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“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
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ACKNOWLEDGMENT AND RESTATEMENT
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[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written.
BORROWER: |
| GUARANTOR: | ||
IMAX CORPORATION
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| IMAX U.S.A. INC. | ||
By: | /s/ Robert D. Lister |
| By: | /s/ Kenneth Weissman |
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By: | /s/ Joseph Sparacio |
| By: | /s/ Robert D. Lister |
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GUARANTOR: |
| GUARANTOR: | ||
1329507 ONTARIO INC. |
| IMAX POST/DKP INC.
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By: | /s/ Kenneth Weissman |
| By: | /s/ Kenneth Weissman |
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By: | /s/ Robert D. Lister |
| By: | /s/ Robert D. Lister |
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IMAX Corporation
Sixth Amended and Restated Credit Agreement
Signature Page
GUARANTOR: |
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IMAX II U.S.A. INC. |
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By: | /s/ Kenneth Weissman |
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By: | /s/ Robert D. Lister |
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GUARANTOR: | ||||
IMAX THEATRES INTERNATIONAL LIMITED
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By: | /s/ Alan Nishida | |||
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By: | /s/ Robert D. Lister |
IMAX Corporation
Sixth Amended and Restated Credit Agreement
Signature Page
IMAX (BARBADOS) HOLDING, INC. | |
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By: | /s/ Kenneth Weissman |
Before me: | /s/ James Skinner Notary Public |
By: | /s/ Robert D. Lister
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Before me: | /s/ Sandra M. Ennis Notary Public |
IMAX Corporation
Sixth Amended and Restated Credit Agreement
Signature Page
wells fargo bank, national association, as Agent, Swingline Lender, Issuing Lender and a Lender
By: /s/ Patrick M. Drum
Name: Patrick M. Drum
Title: Senior Vice President
IMAX Corporation
Sixth Amended and Restated Credit Agreement
Signature Page
HSBC BANK CANADA, as a Lender
By: /s/ Jesse MacMasters
Name: Jesse MacMasters
Title: Head of Large Corporate Banking, ON &
Atlantic
By: /s/ Nicholas Schlotter
Name: Nicholas Schlotter
Title: Director, Large Corporate Banking
IMAX Corporation
Sixth Amended and Restated Credit Agreement
Signature Page
NATIONAL BANK OF CANADA, as a Lender
By: /s/ Suneel Puri
Name: Suneel Puri
Title: Director & Head, Execution
IMAX Corporation
Sixth Amended and Restated Credit Agreement
Signature Page
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as a Lender
By: /s/ Jeffrey Coleman
Name: Jeffrey Coleman
Title: Executive Director
IMAX Corporation
Sixth Amended and Restated Credit Agreement
Signature Page
Bank of America, N.A., as a Lender
By: /s/ Jana L. Baker
Name: Jana L. Baker
Title: Senior Vice President
IMAX Corporation
Sixth Amended and Restated Credit Agreement
Signature Page