Emergent BioSolutions(EBS) - 2024 Q3 - Quarterly Results

Credit Agreement Preamble This section introduces the parties involved in the Credit Agreement and its effective date Parties to the Agreement This Credit Agreement, dated September 30, 2024, is established between various Emergent BioSolutions entities as Borrowers and other Loan Parties, with Wells Fargo Bank, National Association serving as the Agent, Sole Lead Arranger, and Sole Book Runner for a group of Lenders - The agreement involves multiple subsidiaries of Emergent BioSolutions Inc. (EBS) as co-borrowers, including entities from the US, Canada, and Ireland[6] - Wells Fargo Bank, National Association, holds multiple key roles as Agent, Sole Lead Arranger, and Sole Book Runner for the Lender group[6] SECTION 1. DEFINITIONS AND CONSTRUCTION This section defines key terms and outlines rules for interpreting the Credit Agreement Definitions This section provides comprehensive definitions for all capitalized terms used throughout the Credit Agreement, establishing the specific meaning of financial, legal, and operational terminology. Key definitions include those related to borrowing capacity (Borrowing Base, Availability), loan types, collateral, financial metrics (Consolidated EBITDA, Leverage Ratio), and Events of Default - The Borrowing Base is a key determinant of borrowing capacity and is calculated as the sum of the Canadian, Irish, and U.S. Borrowing Bases, which are based on specified percentages of eligible accounts and inventory, less any reserves[39][40][121][198] - An Event of Default is defined, with specific triggers outlined in Section 8, which grants the Lender Group various rights and remedies[93] - The Maturity Date is the earliest of September 30, 2029, 90 days prior to the maturity of the Term Loan Indebtedness, or 90 days prior to the maturity of the 2028 Senior Notes[134] - The Maximum Revolver Amount is set at $100 million, subject to reductions or increases as permitted by the agreement[134] Other Construction Terms This subsection outlines the rules for interpreting the agreement, including the treatment of accounting terms (GAAP), references to the Uniform Commercial Code (Code) and Canadian PPSA, time references, and specific interpretations for transactions in Quebec and Ireland. It also addresses how Limited Condition Acquisitions are handled for covenant testing purposes - All accounting terms are to be construed in accordance with GAAP, but the agreement includes a provision to negotiate amendments to offset the effects of any future changes in accounting principles[201] - For Limited Condition Acquisitions, the agreement allows the Borrower to elect to test financial covenants and other conditions either at the time of signing the definitive acquisition agreement or at the time of consummation[203] - The agreement includes specific interpretation clauses for legal terms under the laws of Quebec and Ireland to ensure enforceability and clarity in those jurisdictions[203][205][207] SECTION 2. LOANS AND TERMS OF PAYMENT This section details the types of loans, borrowing procedures, payment terms, interest rates, fees, and incremental facility options Revolving Loans This section establishes the revolving credit facility, allowing Borrowers to draw loans up to a specified limit. The available amount for borrowing at any time is the lesser of the Lender's Pro Rata Share of the Maximum Revolver Amount (less Letters of Credit and Swing Loans) or the Borrowing Base. The Agent retains the right to establish and adjust reserves against the Borrowing Base in its Permitted Discretion Revolving Loan Availability | Metric | Limit/Formula | | :--- | :--- | | Maximum Revolver Amount | $100 million | | Borrowing Availability | Lesser of (A) Maximum Revolver Amount or (B) Borrowing Base, in each case less outstanding Letters of Credit and Swing Loans | - The Agent has the right, in its Permitted Discretion, to establish, increase, or decrease Reserves against the Borrowing Base or the Maximum Revolver Amount, which can impact borrowing availability. Borrowers must be notified 3 business days prior to such changes, except during a Default or Event of Default[210] Borrowing Procedures and Settlements This section details the mechanics for requesting and funding loans. Borrowers must submit borrowing requests by specific deadlines depending on the loan type (Base Rate, SOFR, or Swing Loan). It also outlines the process for Swing Loans (up to $5 million), Protective Advances, and Overadvances, which the Agent may make in its discretion. The section establishes a periodic settlement process among the Lenders to ensure each holds its Pro Rata Share of the outstanding loans - Swing Loans up to $5 million can be funded on the same business day if requested by 11:00 a.m[211] - The Agent is authorized to make Protective Advances to preserve or protect collateral and may permit Overadvances (where usage exceeds the Borrowing Base by up to 10%) in its discretion[214] - A settlement process is established for Lenders to periodically rebalance their funded portions of the Revolving Loans to match their Pro Rata Share[216] Payments, Reductions of Commitments, and Prepayments This section governs the application of payments, commitment reductions, and prepayments. All payments are applied to reduce the Revolving Loan balance unless an Application Event (such as a default) has occurred, in which case payments are applied according to a specified waterfall. Borrowers must make mandatory prepayments if the Revolver Usage exceeds the Borrowing Base or Maximum Revolver Amount. Borrowers may voluntarily reduce the Revolver Commitments in minimum increments of $5 million but not below $50 million - During an Application Event (e.g., default), payments and collateral proceeds are applied in a specific priority waterfall, starting with Agent expenses, then Protective Advances, fees, interest, and principal[229][230] - A mandatory prepayment is required within one business day if Revolver Usage exceeds the lesser of the Borrowing Base or the Maximum Revolver Amount[235] - Borrowers can voluntarily reduce the total Revolver Commitments with three business days' notice, in minimum increments of $5 million, but the total commitment cannot be reduced below $50 million[234] Interest Rates and Letter of Credit Fee This section defines the interest rates for loans and fees for letters of credit. Loans can bear interest at either a Base Rate plus a margin or an Adjusted Term SOFR plus a margin. The Applicable Margin is determined quarterly based on the company's Leverage Ratio. A default interest rate, 2% above the otherwise applicable rate, is applied upon an Event of Default Applicable Margin for Revolving Loans | Level | Leverage Ratio | Base Rate Margin | SOFR Margin | | :--- | :--- | :--- | :--- | | I | < 4.00 to 1.00 | 0.75% | 1.75% | | II | >= 4.00 to 1.00 | 1.25% | 2.25% | - From the Closing Date through September 30, 2025, the Applicable Margin is fixed at Level II (Base Rate + 1.25%, SOFR + 2.25%)[17] - Upon an Event of Default, all Obligations may bear interest at a default rate of 2% above the otherwise applicable rate[239] Fees This section outlines the various fees payable by the Borrowers. This includes an Unused Line Fee, calculated based on the average daily unused portion of the Revolver Commitments, and fees for field examinations and appraisals conducted by the Agent Applicable Unused Line Fee Percentage | Level | Average Revolver Usage | Applicable Unused Line Fee Percentage | | :--- | :--- | :--- | | I | < 50% of Maximum Revolver Amount | []% (through first anniversary), []% (thereafter) | | II | > 50% of Maximum Revolver Amount | [***]% | - Borrowers are required to pay fees for field examinations and appraisals performed by or on behalf of the Agent[250] Letters of Credit This section permits the issuance of standby and commercial Letters of Credit (LCs) for the Borrowers' account, subject to a sublimit. The total LC usage cannot exceed the Letter of Credit Sublimit or cause total revolver usage to exceed borrowing availability. The section details the issuance process, reimbursement Obligations, fees, and indemnification provisions related to LCs. In case of an Event of Default, Borrowers may be required to cash collateralize the outstanding LC usage - The facility includes a Letter of Credit Sublimit of $10 million[129][253] - If the Issuing Bank makes a payment under an LC, the disbursement is immediately deemed a Revolving Loan if not reimbursed by the Borrower on the same day[256] - Upon an Event of Default or if availability is less than zero, Borrowers may be required to provide cash collateral equal to 105% of the outstanding Letter of Credit Usage[271] Incremental Facilities This section provides the Borrowers with the option to increase the Revolver Commitments and the Maximum Revolver Amount, subject to certain conditions. The total increase is limited by the Available Increase Amount, and the total facility cannot exceed $125 million. Any increase requires the consent of the Agent and the commitment of existing or new lenders - The Revolver Commitments can be increased by an aggregate amount up to the Available Increase Amount of $25 million[23][290] - The total Maximum Revolver Amount after any increase cannot exceed $125 million[290] - Each increase must be at least $10 million and is subject to conditions, including no existing Default or Event of Default and obtaining commitments from lenders[291] Joint and Several Liability of Borrowers This section establishes that all entities defined as Borrowers are jointly and severally liable for all Obligations under the agreement. Each Borrower accepts liability as a co-debtor, not merely as a surety, meaning the Lender Group can seek full repayment from any single Borrower, irrespective of which Borrower incurred the debt. Borrowers waive numerous suretyship defenses - Each Borrower irrevocably and unconditionally accepts joint and several liability with the other Borrowers for the payment and performance of all Obligations[295] - The Obligations are full recourse against each Borrower to the full extent of its properties and assets[296] SECTION 3. CONDITIONS; TERM OF AGREEMENT This section specifies the conditions for credit extensions and the overall term and termination provisions of the agreement Conditions Precedent and Subsequent This section outlines the conditions that must be met before the initial and any subsequent extensions of credit. The initial funding is subject to the satisfaction of conditions listed in Schedule 3.1. All subsequent credit extensions require that representations and warranties be true and correct and that no Default or Event of Default exists. The agreement also specifies certain conditions subsequent in Schedule 3.6 that must be fulfilled after the closing date to maintain credit availability - The initial extension of credit is contingent upon fulfilling the conditions precedent detailed in Schedule 3.1[305] - For all subsequent borrowings, representations and warranties must be accurate, and no Default or Event of Default can be ongoing[305] - The agreement includes post-closing Obligations (conditions subsequent) listed in Schedule 3.6, which must be completed by specified deadlines to avoid an Event of Default[310] Term and Termination This section defines the term of the agreement, which extends to the Maturity Date unless terminated earlier. On the Maturity Date, all commitments terminate and all Obligations become immediately due and payable. Borrowers have the option to terminate the agreement early by repaying all Obligations in full, subject to a ten-business-day prior written notice - The commitments under the agreement continue until the Maturity Date, unless terminated earlier[306] - Upon maturity, all Obligations become due, and Agent's liens remain in effect until all Obligations are paid in full[307] - Borrowers may terminate the agreement early by providing ten business days' notice and repaying all Obligations in full[308] SECTION 4. REPRESENTATIONS AND WARRANTIES This section outlines the factual assurances made by the Loan Parties regarding their corporate status, financial condition, and legal compliance Corporate Status, Authority, and Assets The Loan Parties represent and warrant their due organization, valid existence, and authority to enter into the loan documents. They confirm that the execution of the agreement does not conflict with any laws or material contracts and that all necessary governmental consents have been obtained. The Loan Parties also affirm they have good title to their assets, which are subject only to Permitted Liens, and that the Agent's liens are valid, perfected, and have first priority, subject to certain permitted exceptions - Each Loan Party is duly organized and has the authority to enter into and perform its Obligations under the Loan Documents[311][316] - The execution and performance of the Loan Documents will not violate any material laws, governing documents, or material contracts[317] - Agent's Liens are represented as valid, perfected, and first-priority, subject only to Permitted Liens and the ABL/Term Loan Intercreditor Agreement[319] Financial Condition, Legal Compliance, and Employee Benefits The Loan Parties represent that there is no litigation that could have a Material Adverse Effect and that they are in compliance with all applicable laws, including specific regulations from the FDA. Financial statements provided are affirmed to be accurate and fairly present the company's financial condition, with no Material Adverse Effect having occurred since the last audited statement. The company also confirms its solvency and compliance with ERISA and other employee benefit plan regulations - The company represents that its financial statements were prepared in accordance with GAAP and fairly present its financial condition, and no Material Adverse Effect has occurred since the date of the Audited Financial Statements[333][334] - The Loan Parties and their subsidiaries are in compliance in all material respects with applicable laws, including specific FDA regulations regarding product manufacturing, marketing, and distribution[323][325] - The company represents that it is in compliance with ERISA and that no ERISA Event has occurred that could reasonably be expected to have a Material Adverse Effect[336][339] Other Representations This subsection covers a range of other critical representations. The Loan Parties confirm the completeness and accuracy of all information provided to the lenders. They assert compliance with the Patriot Act, OFAC sanctions, and anti-corruption laws. They also represent that they have paid their taxes, are not using loan proceeds for Margin Stock, and that their identified Eligible Accounts and Eligible Inventory meet the specific criteria set forth in the agreement. Representations are also made regarding the status of Material Contracts and the location of inventory - No Loan Party, subsidiary, or their affiliates are a Sanctioned Person or located in a Sanctioned Entity, and loan proceeds will not be used in violation of any Sanctions, Anti-Corruption Laws, or Anti-Money Laundering Laws[347] - Loan proceeds will not be used to purchase or carry Margin Stock in violation of Regulations T, U, or X[346] - Accounts and Inventory identified as 'Eligible' in Borrowing Base Certificates meet the specific criteria defined in the agreement, forming the basis for borrowing availability[350][351] SECTION 5. AFFIRMATIVE COVENANTS This section details the ongoing Obligations of the Loan Parties, including financial reporting, corporate maintenance, and collateral perfection Financial Reporting The Borrowers are required to deliver a comprehensive set of financial statements and reports to the Agent according to the schedule specified in Schedule 5.1 and Schedule 5.2. This includes regular delivery of Borrowing Base Certificates and other collateral reporting to ensure ongoing monitoring of the facility's collateral base - Borrowers must deliver financial statements, reports, and certificates as detailed in Schedule 5.1, including Compliance Certificates[356] - Borrowers must provide collateral reports, including Borrowing Base Certificates, at the times specified in Schedule 5.2[357] General Corporate Covenants This section outlines the standard affirmative covenants requiring the Loan Parties to maintain their corporate existence, keep properties in good working order, pay taxes, and maintain adequate insurance. They must also permit inspections by the Agent, comply with all laws (including environmental laws), and promptly update the Agent on any material inaccuracies in previously furnished information - Loan Parties must preserve their valid existence and good standing[358] - Loan Parties must pay all taxes before delinquency, unless being contested in good faith with adequate reserves[361] - Loan Parties must maintain insurance customary for their business, with Agent named as lender's loss payee[362] - Agent is permitted to conduct periodic field examinations and inventory appraisals at the Borrowers' expense, subject to frequency limitations so long as no Event of Default is continuing[364][366][367] Collateral and Guaranty Covenants This section contains covenants related to perfecting and maintaining the collateral and guarantees. Loan Parties must execute additional documents as requested by the Agent to perfect its liens. They are required to add new domestic and Canadian subsidiaries (other than Excluded Subsidiaries) as guarantors or borrowers. An 'Additional Guarantor Trigger Event' also requires adding existing domestic subsidiaries as guarantors if the aggregate assets or revenue of non-guarantor subsidiaries exceed a 10% threshold - Loan Parties must execute any additional documents requested by the Agent to perfect its liens on collateral[370] - Newly created or acquired Domestic and Canadian Subsidiaries (that are not Excluded Subsidiaries) must join the agreement as a Borrower or Guarantor within 30 days[374] - An 'Additional Guarantor Trigger Event' occurs if the total assets or revenue of non-guarantor Domestic Subsidiaries exceed 10% of the consolidated total, requiring the addition of subsidiaries as Guarantors to fall below this threshold[376] SECTION 6. NEGATIVE COVENANTS This section imposes restrictions on the Loan Parties' financial and operational activities, including limitations on debt, liens, and investments Indebtedness, Liens, and Fundamental Changes This section restricts the Loan Parties from incurring additional debt or liens, other than what is explicitly permitted (Permitted Indebtedness and Permitted Liens). It also limits fundamental corporate changes such as mergers, consolidations, or dissolutions, and prohibits the disposal of assets, except for Permitted Dispositions. The company is also restricted from engaging in any material line of business substantially different from its current operations - Incurrence of any Indebtedness is prohibited, except for Permitted Indebtedness[380] - Creation of any Liens on assets is prohibited, except for Permitted Liens[380] - Mergers, consolidations, and asset sales are restricted, subject to specific exceptions for transactions between Loan Parties and for Permitted Acquisitions and Dispositions[380][381] Payments, Investments, and Affiliate Transactions This section imposes restrictions on certain financial activities. Prepayments of other specified debt (Subject Indebtedness) are limited unless certain conditions, including the Payment Conditions, are met. Restricted Payments, such as dividends and share repurchases, are also prohibited unless the Payment Conditions are satisfied. Investments are limited to Permitted Investments, and transactions with affiliates must be on arm's-length terms. The use of loan proceeds is restricted to specified purposes - Prepayment of subordinated or other specific debt (Subject Indebtedness) is generally prohibited unless the Payment Conditions are met, which require pro forma Excess Availability of at least 20% of the Maximum Revolver Amount and a Fixed Charge Coverage Ratio of at least 1.00 to 1.00[142][384] - Restricted Payments (e.g., dividends, share buybacks) are generally prohibited unless the Payment Conditions are satisfied[142][385] - All investments must qualify as Permitted Investments[386] - Transactions with affiliates must be on terms no less favorable than what would be obtained in an arm's-length transaction with a non-affiliate[386] SECTION 7. FINANCIAL COVENANT This section establishes the key financial performance metrics and ratios that the Borrowers must maintain throughout the agreement's term Financial Covenants This section establishes the key financial covenants the Borrowers must maintain. Prior to a 'Covenant Conversion Date,' the Borrowers must maintain minimum Liquidity of $50 million. After the Covenant Conversion Date, this is replaced by a requirement to maintain a Fixed Charge Coverage Ratio of at least 1.00 to 1.00, which is tested only during a 'Covenant Testing Period' (when Excess Availability falls below 15% of the Maximum Revolver Amount) - Minimum Liquidity: From the Closing Date until the Covenant Conversion Date, Borrowers must maintain minimum Liquidity of at least $50 million, with the Excess Availability component being at least $15 million[391] - Fixed Charge Coverage Ratio (FCCR): Commencing on the Covenant Conversion Date, Borrowers must maintain an FCCR of at least 1.00 to 1.00. This covenant is only tested during a Covenant Testing Period, which is triggered when Excess Availability is less than 15% of the Maximum Revolver Amount[67][391] - The Covenant Conversion Date is the first date after September 30, 2025, on which the Leverage Ratio is less than 5.25 to 1.00[67] SECTION 8. EVENTS OF DEFAULT This section specifies the conditions that constitute an Event of Default, triggering lender remedies List of Default Events This section specifies the conditions that constitute an Event of Default. These include failure to make payments, breaches of covenants, incorrect representations, cross-defaults on other significant indebtedness (over $25 million), bankruptcy or insolvency proceedings, significant judgments (over $25 million), invalidity of loan documents, a change of control, a major product recall (over $50 million), or certain ERISA-related events - Failure to pay principal when due, or interest and other amounts within three business days of their due date, constitutes an Event of Default[391] - A breach of negative covenants (Section 6) or financial covenants (Section 7) is an immediate Event of Default. Breaches of other covenants have grace periods of 10 or 30 days[391] - A cross-default is triggered by a payment default or acceleration of other indebtedness exceeding $25 million[392] - Voluntary or involuntary bankruptcy proceedings are Events of Default[392] - A Change of Control, as defined in the agreement, constitutes an Event of Default[394] SECTION 9. RIGHTS AND REMEDIES This section outlines the actions the Agent and Lenders can take upon an Event of Default, including acceleration of Obligations and collateral enforcement Remedies upon Default Upon an Event of Default, this section grants the Agent, at the instruction of the Required Lenders, the right to exercise various remedies. These include accelerating all Obligations to become immediately due and payable, terminating all lending commitments, and exercising all other rights available under the loan documents and applicable law. In the case of bankruptcy, these remedies are automatic. The section also affirms the Agent's right to credit bid on collateral during a foreclosure or bankruptcy sale - Upon an Event of Default, the Agent may declare all Obligations immediately due and payable and terminate all Commitments[395] - In the event of bankruptcy (Sections 8.4 or 8.5), the acceleration of Obligations and termination of Commitments are automatic, without any notice required[396] - The Agent has the right to credit bid and purchase collateral at any foreclosure or bankruptcy sale on behalf of the Lender Group[398] SECTION 10. WAIVERS; INDEMNIFICATION This section includes waivers of certain legal rights by Borrowers and their Obligation to indemnify the Lender Group against liabilities Waivers and Indemnification This section contains the Borrowers' waiver of certain legal rights, such as demand and protest. It also establishes a broad indemnification Obligation, requiring the Borrowers to indemnify the Agent, Lenders, and other related parties (Indemnified Persons) against nearly all claims, liabilities, costs, and damages arising from the credit facility, except for those resulting from the indemnified party's own gross negligence or willful misconduct - Borrowers waive rights to demand, protest, and various notices related to the enforcement of the Obligations[400] - Borrowers must indemnify and hold harmless all Indemnified Persons from any and all claims, liabilities, and expenses related to the execution, enforcement, or administration of the Loan Documents[401][403] - The indemnification does not apply to liabilities finally determined by a court to have resulted from the gross negligence or willful misconduct of the Indemnified Person[401] SECTION 11. NOTICES This section specifies the formal procedures and contact information for all communications and notices under the Loan Documents Notice Procedures This section specifies the procedures for all notices and demands under the Loan Documents. It requires that notices be in writing and delivered personally, by mail, courier, email, or telefacsimile to the addresses specified in the agreement. It also outlines when a notice is deemed to have been received depending on the method of delivery - All notices must be in writing and sent to the designated addresses for each party[404] - The agreement provides contact information for notices to the Loan Parties (c/o Emergent BioSolutions Inc.) and the Agent (c/o Wells Fargo Bank, National Association)[404] SECTION 12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER This section establishes the governing law, jurisdiction for disputes, and waiver of jury trial rights for all parties Governing Law and Jurisdiction This section establishes the legal framework for the agreement. It stipulates that the laws of the State of New York will govern the agreement and that any legal actions must be brought in the state or federal courts located in the County of New York. All parties waive the right to a jury trial and waive claims for special, indirect, consequential, or punitive damages - The agreement is governed by and construed in accordance with the laws of the State of New York[406] - All parties agree to the exclusive jurisdiction of state and federal courts in New York County, New York[407][410] - All parties to the agreement irrevocably waive their right to a jury trial for any claim arising from the Loan Documents[408] SECTION 13. ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS This section details the rules and procedures for Lenders to assign their interests or sell participations in the credit facility Assignments and Participations This section outlines the process by which a Lender can assign its rights and Obligations to another entity or sell participation interests. Assignments require the prior written consent of the Borrowers (unless an Event of Default exists) and the Agent. The section details the conditions for assignments, including minimum amounts and the execution of an Assignment and Acceptance agreement. The Agent maintains a Register of all Lenders and their loans - Any Lender may assign its rights and duties to an Assignee with the prior written consent of the Borrowers (unless an Event of Default exists), the Agent, Swing Lender, and Issuing Bank[412] - Assignments are generally subject to a minimum amount of $10 million and a processing fee of $3,500 payable to the Agent[413] - The Agent maintains a Register to record all assignments and sales of loans, and Borrowers are to treat the person in the Register as the owner of the loan[422] SECTION 14. AMENDMENTS; WAIVERS This section outlines the requirements for modifying or waiving provisions of the Loan Documents, including consent thresholds Amendment and Waiver Process This section details the requirements for amending or waiving provisions of the Loan Documents. Generally, amendments require the written consent of the Required Lenders and the Loan Parties. However, certain fundamental changes, such as increasing commitments, extending payment dates, or reducing principal or interest rates, require the consent of all directly affected Lenders. The section also includes a provision allowing the Borrowers to replace a 'Non-Consenting Lender' that blocks an amendment supported by the Required Lenders - Amendments generally require the written consent of the Required Lenders (more than 50% of the Revolving Loan Exposure)[172][427] - Unanimous consent of all affected Lenders is required for certain material changes, including increasing commitments, extending payment dates, reducing principal or interest rates, or releasing substantially all collateral[427][428] - The agreement provides a mechanism to replace a 'Non-Consenting Lender' to facilitate amendments that have majority support[430] SECTION 15. AGENT; THE LENDER GROUP This section defines the Agent's role, authority, and responsibilities, as well as its relationship with the Lender Group Role and Liability of Agent This section defines the role, authority, and limitations of Wells Fargo as the Agent for the Lender Group. The Agent is authorized to act on behalf of the Lenders but has no fiduciary duties and is not liable for actions taken in good faith. The section covers the Agent's right to rely on information provided, its duties upon a default, indemnification by the Lenders, and procedures for resignation or replacement. It also authorizes the Agent to release liens on collateral in permitted circumstances, such as asset sales - Each Lender appoints Wells Fargo as its Agent, authorizing it to take actions and exercise powers delegated under the Loan Documents[434] - The Agent is not liable for any action taken or omitted, except for its own gross negligence or willful misconduct, and is entitled to rely on instructions from the Required Lenders[438][439] - The Lenders irrevocably authorize the Agent to release any lien on collateral that is being sold or disposed of in a transaction permitted by the agreement[450] - The Agent may resign with 30 days' notice, and a successor may be appointed by the Required Lenders with the Borrower's consent (so long as no Event of Default exists)[446] SECTION 16. WITHHOLDING TAXES This section addresses tax Obligations, particularly withholding taxes, and the requirements for Lenders to provide tax documentation Tax Provisions This section addresses tax-related matters, primarily withholding taxes. All payments by Loan Parties are to be made free and clear of any tax deductions, unless required by law. If withholding is required for Indemnified Taxes, the Borrowers must 'gross-up' the payment so the recipient receives the full intended amount. Lenders are required to provide necessary tax forms (e.g., W-8BEN, W-9) to claim exemptions from withholding. The section also includes specific provisions related to Irish taxes and Value-Added Tax (VAT) - Borrowers must make all payments free of tax withholding. If withholding for Indemnified Taxes is required by law, Borrowers must pay additional amounts to ensure the Lender receives the full contractual amount[467] - Lenders must provide appropriate tax forms to the Agent and Borrowers to establish any exemption from or reduction in withholding tax[468][470] - The section includes specific rules and confirmations regarding a Lender's status as an 'Irish Qualifying Lender' to manage Irish withholding tax[475][476] SECTION 17. GENERAL PROVISIONS This section contains various standard legal and administrative clauses, including confidentiality, administrative borrower designation, and erroneous payment recovery Miscellaneous Provisions This final section contains various standard legal and administrative clauses. Key provisions include confidentiality Obligations on the Lenders, survival of representations, compliance with the Patriot Act, integration of the agreement, and the appointment of EBS as the Administrative Borrower for all other Borrowers. It also includes modern provisions addressing the resolution of failed financial institutions (Bail-In), supported Qualified Financial Contracts (QFCs), and a detailed mechanism for correcting erroneous payments made by the Agent - Confidentiality: Agent and Lenders agree to keep material, non-public information confidential, with standard exceptions for legal requirements, advisors, and potential assignees[497] - Administrative Borrower: EBS is appointed as the agent and attorney-in-fact for all other Borrowers to handle notices and borrowing requests[505] - Erroneous Payments: A detailed 'clawback' provision allows the Agent to recover any funds mistakenly transmitted to a Lender or other recipient, which remain the property of the Agent[510][511] - ABL/Term Loan Intercreditor Agreement: The agreement and the Agent's rights and remedies are explicitly subject to the terms of the ABL/Term Loan Intercreditor Agreement, which governs the priority of liens and rights between the revolving lenders and term loan lenders[515] Exhibits and Schedules This section lists the supplementary documents, forms, and detailed information that are integral to the Credit Agreement List of Exhibits and Schedules The agreement includes numerous exhibits and schedules that form an integral part of the contract. Exhibits provide standard forms for documents like the Assignment and Acceptance, Borrowing Base Certificate, and Compliance Certificate. Schedules contain specific factual information as of the Closing Date, such as lender commitments, permitted liens, permitted indebtedness, and locations of inventory - Exhibits provide templates for key operational documents, such as Exhibit B-1 (Form of Borrowing Base Certificate) and Exhibit C-1 (Form of Compliance Certificate)[5] - Schedules contain critical baseline information, including Schedule C-1 (Commitments), Schedule P-1 (Permitted Investments), Schedule P-2 (Permitted Liens), and Schedule 4.14 (Permitted Indebtedness)[5]