Execution Version CREDIT AGREEMENT Dated as of January 31, 2017 among COLUMBUS MCKINNON CORPORATION, COLUMBUS MCKINNON DUTCH HOLDINGS 3 B.V., COLUMBUS MCKINNON EMEA GMBH and CERTAIN SUBSIDIARIES, as Borrowers, JPMORGAN CHASE BANK, N.A., as...
Execution Version
CREDIT AGREEMENT
Dated as of January 31, 2017
among
COLUMBUS XXXXXXXX CORPORATION,
COLUMBUS XXXXXXXX DUTCH HOLDINGS 3 B.V.,
COLUMBUS XXXXXXXX EMEA GMBH
and
CERTAIN SUBSIDIARIES,
as Borrowers,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agenft,
and
The Other Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
PNC CAPITAL MARKETS LLC,
CITIZENS BANK, N.A.,
and
MANUFACTURERS AND TRADERS TRUST COMPANY
as Joint Lead Arrangers and Joint Book Managers,
and
BMO CAPITAL MARKETS CORP.
as Joint Lead Arranger solely with respect to the Revolving Facility,
and
PNC CAPITAL MARKETS LLC,
CITIZENS BANK, N.A.,
and
MANUFACTURERS AND TRADERS TRUST COMPANY
as Co-Syndication Agents,
TABLE OF CONTENTS
Page
i
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS .................................................................... 1
1.01. Defined Terms ................................................................................................................... 1
1.02. Other Interpretive Provisions ........................................................................................... 38
1.03. Accounting Terms ............................................................................................................ 39
1.04. Rounding .......................................................................................................................... 40
1.05. Exchange Rates; Currency Equivalents ........................................................................... 40
1.06. Additional Alternative Currencies ................................................................................... 40
1.07. Change of Currency ......................................................................................................... 41
1.08. Times of Day ................................................................................................................... 41
1.09. Letter of Credit or Bankers’ Acceptance Amounts .......................................................... 41
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS .................................................... 42
2.01. Term Loans ...................................................................................................................... 42
2.02. Procedure for Term Loan Borrowing .............................................................................. 42
2.03. Repayment of Term Loans............................................................................................... 42
2.04. Revolving Commitments ................................................................................................. 42
2.05. Procedure for Revolving Loan Borrowing ...................................................................... 43
2.06. Swingline Commitment ................................................................................................... 43
2.07. Procedure for Swingline Borrowing; Refunding of Swingline Loans ............................. 44
2.08. Commitment Fees, etc. .................................................................................................... 45
2.09. Termination or Reduction of Revolving Commitments .................................................. 45
2.10. Optional Prepayments ...................................................................................................... 45
2.11. Mandatory Prepayments and Commitment Reductions ................................................... 46
2.12. Continuation Options ....................................................................................................... 47
2.13. Limitations on Eurocurrency Tranches ............................................................................ 47
2.14. Interest Rates and Payment Dates .................................................................................... 47
2.15. Computation of Interest and Fees .................................................................................... 48
2.16. Inability to Determine Interest Rate ................................................................................. 48
2.17. Pro Rata Treatment and Payments ................................................................................... 49
2.18. Requirements of Law ....................................................................................................... 51
2.19. Taxes ................................................................................................................................ 53
2.20. Indemnity ......................................................................................................................... 56
2.21. Change of Lending Office ............................................................................................... 56
2.22. Replacement of Lenders .................................................................................................. 57
TABLE OF CONTENTS
(continued)
Page
ii
2.23. Defaulting Lenders .......................................................................................................... 57
2.24. Incremental Facilities ....................................................................................................... 59
2.25. Designated Borrowers ...................................................................................................... 60
2.26. Collateral Security ........................................................................................................... 61
2.27. Non-Public Lender ........................................................................................................... 61
ARTICLE III. LETTERS OF CREDIT AND BANKERS’ ACCEPTANCES. ........................................ 62
3.01. L/C-B/A Commitment ..................................................................................................... 62
3.02. Procedure for Issuance of Letter of Credit ....................................................................... 63
3.03. Fees and Other Charges ................................................................................................... 63
3.04. L/C-B/A Participations .................................................................................................... 64
3.05. Reimbursement Obligation of the Borrower .................................................................... 65
3.06. Obligations Absolute ....................................................................................................... 65
3.07. Letter of Credit Payments ................................................................................................ 66
3.08. Applications ..................................................................................................................... 66
3.09. Applicability of ISP and UCP .......................................................................................... 66
ARTICLE IV. CONDITIONS PRECEDENT ........................................................................................... 67
4.01. Conditions of Closing and Initial Term Credit Extension ............................................... 67
4.02. Conditions to Other Extensions of Credit ........................................................................ 70
ARTICLE V. REPRESENTATIONS AND WARRANTIES ................................................................... 71
5.01. Existence, Qualification and Power ................................................................................. 71
5.02. Authorization; No Contravention .................................................................................... 71
5.03. Governmental Authorization; Other Consents ................................................................. 71
5.04. Binding Effect .................................................................................................................. 71
5.05. Financial Statements; No Material Adverse Effect; No Internal Control Event .............. 71
5.06. Litigation .......................................................................................................................... 72
5.07. No Default........................................................................................................................ 72
5.08. Ownership of Property; Liens .......................................................................................... 72
5.09. Environmental Compliance ............................................................................................. 73
5.10. Insurance .......................................................................................................................... 73
5.11. Taxes ................................................................................................................................ 73
5.12. ERISA Compliance .......................................................................................................... 73
5.13. Subsidiaries; Equity Interests ........................................................................................... 74
5.14. Margin Regulations; Investment Company Act; Other Regulations ............................... 74
TABLE OF CONTENTS
(continued)
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5.15. Disclosure ........................................................................................................................ 75
5.16. Compliance with Laws .................................................................................................... 75
5.17. Taxpayer Identification Number; Other Identifying Information .................................... 75
5.18. Intellectual Property; Licenses, Etc. ................................................................................ 75
5.19. Perfection of Security Interest ......................................................................................... 76
5.20. Machinery and Equipment ............................................................................................... 76
5.21. Solvency........................................................................................................................... 76
5.22. Bank Accounts ................................................................................................................. 76
5.23. Obligations as Senior Debt .............................................................................................. 76
5.24. Use of Proceeds ............................................................................................................... 76
5.25. Representations as to Foreign Loan Parties ..................................................................... 76
5.26. Anti-Corruption Laws and Sanctions ............................................................................... 77
5.27. EEA Financial Institutions ............................................................................................... 77
ARTICLE VI. AFFIRMATIVE COVENANTS ....................................................................................... 78
6.01. Financial Statements ........................................................................................................ 78
6.02. Certificates; Other Information ........................................................................................ 79
6.03. Notices ............................................................................................................................. 80
6.04. Payment of Obligations ................................................................................................... 80
6.05. Preservation of Existence, Etc. ........................................................................................ 81
6.06. Maintenance of Properties ............................................................................................... 81
6.07. Maintenance of Insurance ................................................................................................ 81
6.08. Compliance with Laws, Organization Documents and Contractual Obligations............. 81
6.09. Books and Records .......................................................................................................... 81
6.10. Inspection Rights ............................................................................................................. 81
6.11. Use of Proceeds ............................................................................................................... 82
6.12. Additional Guarantors and Pledgors ................................................................................ 82
6.13. Approvals and Authorizations ......................................................................................... 83
6.14. Environmental Laws ........................................................................................................ 84
6.15. Centre of Main Interest and Establishment ...................................................................... 84
6.16. Certain Post-Closing Obligations .................................................................................... 84
ARTICLE VII. NEGATIVE COVENANTS ............................................................................................. 84
7.01. Liens ................................................................................................................................ 84
7.02. Investments ...................................................................................................................... 86
TABLE OF CONTENTS
(continued)
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7.03. Indebtedness..................................................................................................................... 88
7.04. Fundamental Changes ...................................................................................................... 90
7.05. Dispositions ..................................................................................................................... 91
7.06. Restricted Payments ......................................................................................................... 92
7.07. Change in Nature of Business .......................................................................................... 94
7.08. Transactions with Affiliates ............................................................................................. 94
7.09. Burdensome Agreements ................................................................................................. 94
7.10. Use of Proceeds ............................................................................................................... 94
7.11. Financial Covenant .......................................................................................................... 95
7.12. Modifications of Certain Documents; Designation of Senior Debt ................................. 95
7.13. Sale-Leaseback Transactions ........................................................................................... 95
7.14. Changes in Fiscal Periods ................................................................................................ 95
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES .................................................................. 95
8.01. Events of Default ............................................................................................................. 95
8.02. Remedies upon Event of Default ..................................................................................... 97
8.03. Application of Funds ....................................................................................................... 98
ARTICLE IX. ADMINISTRATIVE AGENT ........................................................................................... 99
9.01. Appointment .................................................................................................................... 99
9.02. Delegation of Duties ........................................................................................................ 99
9.03. Exculpatory Provisions .................................................................................................... 99
9.04. Reliance by Administrative Agent ................................................................................. 100
9.05. Notice of Default ........................................................................................................... 100
9.06. Non-Reliance on Agents and Other Lenders ................................................................. 100
9.07. Indemnification .............................................................................................................. 101
9.08. Agent in Its Individual Capacity .................................................................................... 101
9.09. Successive Administrative Agent .................................................................................. 101
9.10. Joint Lead Arrangers and Co-Syndication Agents ......................................................... 101
ARTICLE X. MISCELLANEOUS.......................................................................................................... 102
10.01. Amendments and Waivers ............................................................................................. 102
10.02. Notices ........................................................................................................................... 103
10.03. No Waiver; Cumulative Remedies ................................................................................ 104
10.04. Survival of Representations and Warranties .................................................................. 104
10.05. Payment of Expenses ..................................................................................................... 104
TABLE OF CONTENTS
(continued)
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10.06. Successors and Assigns; Participations and Assignments ............................................. 106
10.07. Adjustments; Set-off ...................................................................................................... 109
10.08. Counterparts ................................................................................................................... 109
10.09. Severability .................................................................................................................... 109
10.10. Integration ...................................................................................................................... 110
10.11. GOVERNING LAW ...................................................................................................... 110
10.12. Submission to Jurisdiction; Waivers .............................................................................. 110
10.13. Acknowledgments ......................................................................................................... 110
10.14. Releases of Guarantees and Liens.................................................................................. 111
10.15. Confidentiality ............................................................................................................... 111
10.16. WAIVERS OF JURY TRIAL ....................................................................................... 112
10.17. USA PATRIOT Act ....................................................................................................... 112
10.18. Judgment Currency ........................................................................................................ 112
10.19. Representation Dutch Borrower. ................................................................................... 113
10.20. Acknowledgement and Consent to Bail-In of EEA Financial Institutions .................... 113
SCHEDULES
1.01 Existing Letters of Credit and Existing Bankers’ Acceptances
2.01 Commitments
5.05 Material Indebtedness and Other Liabilities at September 30, 2016
5.06 Litigation
5.08 Fee and Leasehold Real Property Assets
5.09 Environmental Matters
5.12(c) ERISA
5.12(d) Pension Plans
5.13 Subsidiaries; Other Equity Investments
5.17 Identification Numbers for Designated Borrowers that are Foreign Subsidiaries
5.18 Intellectual Property Matters
5.19 UCC Filing Jurisdictions
5.22 Bank Accounts
6.16 Post-Closing Obligations
7.01 Existing Liens (Including Exclusive Licenses of IP Rights)
7.03 Existing Indebtedness
7.09 Burdensome Agreements
EXHIBITS
Form of
A Compliance Certificate
B Assignment and Assumption
C Designated Borrower Request and Assumption Agreement
D Designated Borrower Notice
E Forms of U.S. Tax Compliance Certificates
F-1 Form of Increased Facility Activation Notice – Incremental Term Loans
F-2 Form of Increased Facility Activation Notice – Incremental Revolving Commitments
F-3 Form of New Lender Supplement
1
CREDIT AGREEMENT
This CREDIT AGREEMENT (“Agreement”) is dated as of January 31, 2017, among
COLUMBUS XXXXXXXX CORPORATION, a New York corporation (the “Company”), COLUMBUS
XXXXXXXX DUTCH HOLDINGS 3 B.V., (the “Dutch Borrower”), COLUMBUS XXXXXXXX EMEA
GMBH (the “German Borrower” and, together with the Company, the Dutch Borrower, the German
Borrower and any other Designated Borrower (as defined herein), the “Borrowers” and, each a
“Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01. Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:
“Acceptance Credit” means a commercial Letter of Credit in which the applicable Issuing Lender
engages with the beneficiary of such Letter of Credit to accept a time draft.
“Acquisition Agreement” means the Agreement and Plan of Merger dated as of November 30,
2016, among the Company, KoneCranes Plc, Hyvinkaa, Finland, a public limited company incorporated
under Finnish Law and the other parties thereto.
“Acquisition Agreement Representations” means the representations (if any) made by or on
behalf of the XXXXX XX Companies in the Acquisition Agreement as are material to the interests of the
Lenders, but only to the extent that the Company (or any of its Affiliates) has the right in accordance with
the terms of the Acquisition Agreement (taking into account applicable cure provisions) to terminate its
obligations under the Acquisition Agreement or to decline to consummate the Specified Acquisition, in
each case, as a result of a breach of such representations in the Acquisition Agreement.
“Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
“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.
“Agents” means the collective reference to the Administrative Agent and any other agent
identified on the cover page of this Agreement.
“Aggregate Exposure” means with respect to any Lender at any time, an amount equal to (a)
until the Closing Date, the aggregate amount of such Lender’s Commitments at such time and (b)
thereafter, the sum of (i) such Lender’s Term Loans and (ii) the amount of such Lender’s Revolving
Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such
Lender’s Revolving Extensions of Credit then outstanding.
2
“Aggregate Exposure Percentage” means with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure
of all Lenders at such time.
“Agreement” means this Credit Agreement.
“Alternative Currency” means each of Canadian Dollar, Euro, Hong Kong Dollar, Sterling, Swiss
Franc, Yen and each other currency (other than Dollars) that is approved in accordance with Section 1.06.
“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated
in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the
Administrative Agent or the Issuing Lender, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency
with Dollars.
“Alternative Currency Sublimit” means the lesser of (a) $40,000,000 and (b) the Revolving
Commitment. The Alternative Currency Sublimit is part of, and not in addition to, the Revolving
Commitment.
“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction applicable to the
Company or its Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Foreign Loan Party Documents” has the meaning specified in Section 5.25(a).
“Applicable Payment Office” means the office specified from time to time by the Administrative
Agent as its Applicable Payment Office by notice to the Company and the relevant Lenders (it being
understood that such Applicable Payment Office shall mean (i) with respect to Loans denominated in
Dollars, the office of the Administrative Agent specified in Section 10.2 or such other office as may be
specified from time to time by the Administrative Agent to the Company and each Lender and (ii) with
respect to Loans denominated in an Alternative Currency, the office, branch, affiliate or correspondent
bank of the Administrative Agent for such currency as specified from time to time by the Administrative
Agent to the Company and each Lender, until otherwise notified by the Administrative Agent).
“Applicable Rate” means, (a) with respect to the Initial Term Loans, 2.00% per annum in the case
of Base Rate Loans and 3.00% per annum in the case of Eurocurrency Rate Loans and (b) with respect to
Revolving Loans, from time to time, the following percentages per annum, based upon the Total Leverage
Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent
pursuant to Section 6.02(a):
3
Level Total Leverage Ratio Commitment
Fee
Eurocurrency
Rate/CDOR
Rate/HIBOR
Rate
Standby
Letter of
Credit Fee
Commercial
Letter of
Credit and
Bankers’
Acceptance
Fees
Base
Rate
I Greater than or equal to
4.00x
0.45% 2.75% 2.75% 1.375% 1.75%
II Less than 4.00x but
greater than or equal to
3.25x
0.40% 2.50% 2.50% 1.25% 1.50%
III Less than 3.25 but
greater than or equal to
2.50x
0.35% 2.25% 2.25% 1.125% 1.25%
IV Less than 2.50x but
greater than or equal to
1.75x
0.30% 2.00% 2.00% 1.00% 1.00%
V Less than 1.75x but
greater than or equal to
1.00x
0.25% 1.75% 1.75% 0.875% 0.75%
VI Less than 1.00x
0.20% 1.50% 1.50% 0.75% 0.50%
Any increase or decrease in the Applicable Rate resulting from a change in the Total Leverage
Ratio shall become effective as of the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.02(a); provided, that (a) subject to clause (b) below, the
Applicable Rate in effect from the Closing Date through the first Business Day immediately following the
date on which a Compliance Certificate for the fiscal quarter ended March 31, 2017 is delivered shall be
determined based upon Pricing Level II and (b) if a Compliance Certificate is not delivered when due in
accordance with Section 6.02(a), then Pricing Level I shall apply as of the first Business Day after the
date on which such Compliance Certificate was required to have been delivered until the first Business
Day immediately after Compliance Certificate is delivered.
For Incremental Term Loans, such per annum rates as shall be agreed to by the applicable
Borrower and the applicable Incremental Term Lenders as shown in the applicable Increased Facility
Activation Notice.
“Applicant Borrower” has the meaning specified in Section 2.25(a).
“Application” means an application, in such form as the applicable Issuing Lender may specify
from time to time, requesting the applicable Issuing Lender to open a Letter of Credit or BA.
“Approved Fund” has the meaning specified in Section 10.06(b).
“Approved Restructuring Charges” means cash or non-cash restructuring charges incurred by the
Company and/or its Subsidiaries in an aggregate amount not to exceed $30,000,000 for the term of this
Agreement; provided that (i) $15,000,000 of such amount may be incurred in respect to the Specified
Acquisition to the extent incurred within 24 months following the Specified Acquisition and (ii) other
4
than charges incurred in respect of the Specified Acquisition, no more than $5,000,000 may be incurred in
any single fiscal year.
“Assignment and Assumption” means an Assignment and Assumption, substantially in the form
of Exhibit B.
“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease 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 Obligation, the capitalized
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.
“Audited Financial Statements” means the audited consolidated balance sheet of the Company
and its Subsidiaries for the fiscal year ended March 31, 2016, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for such fiscal year of the Company and its
Subsidiaries, including the notes thereto.
“Available Amount” means, as of any date of determination, an amount equal to the sum of
(without duplication) (i) $25,000,000, (ii) an amount (which shall not be less than zero) equal to the
Retained Excess Cash Flow Amount as of such date of determination, (iii) the Net Cash Proceeds from
any sale of Equity Interests (other than Disqualified Equity Interests) by the Company or its Subsidiaries
after the Closing Date to any person other than Company or its Subsidiaries (including upon exercise of
warrants or options) and (iv) the Net Cash Proceeds from any Dispositions of Investments permitted
under Section 7.02(o).
“Available Incremental Amount” means, as of any date of determination, an amount equal to:
(a) $ 75,000,000 (the “Capped Incremental Amount”); plus
(b) the maximum aggregate principal amount of Indebtedness secured by the Collateral on a pari
passu or junior basis with the Obligations that can be incurred without causing the Secured Leverage
Ratio, after giving effect to the incurrence or establishment, as applicable, of any Incremental Facilities or
Incremental Equivalent Debt (which shall (i) assume that all Incremental Facilities are secured by the
Collateral on a pari passu basis with the Obligations, (ii) assume the full amounts of any Incremental
Revolving Commitments established at such time are fully drawn, (iii) give effect to any permanent
repayment of Indebtedness prior to or substantially simultaneously with the incurrence of such
Incremental Equivalent Debt or Incremental Facilities and (iv) not include the proceeds of such
Incremental Loans or Incremental Equivalent Debt in calculating unrestricted cash of the Company and
its Subsidiaries on hand) and the use of proceeds thereof, on a pro forma basis (but without giving effect
to any substantially simultaneous incurrence of any Incremental Facility or Incremental Equivalent Debt
made pursuant to the foregoing clause (a) in connection therewith), to exceed 3.25:1.0 as of the end of
the most recently ended fiscal quarter for which financial statements have been delivered (the
“Secured Ratio Incremental Amount”); plus
(c) in the case of Incremental Equivalent Debt only, the maximum aggregate principal amount of
unsecured Indebtedness that can be incurred without causing the Total Leverage Ratio, after giving effect
to the incurrence or establishment of any Incremental Equivalent Debt (which shall (i) assume the full
amounts of any Incremental Revolving Commitments established at such time are fully drawn, (ii) give
effect to any permanent repayment of Indebtedness prior to or substantially simultaneously with
5
the incurrence of such Incremental Equivalent Debt and (iii) not include the proceeds of such
Incremental Equivalent Debt in calculating unrestricted cash of the Company and its Subsidiaries on
hand) and the use of proceeds thereof, on a pro forma basis (but without giving effect to any substantially
simultaneous incurrence of any Incremental Facility or Incremental Equivalent Debt made pursuant to the
foregoing clause (a) in connection therewith), to exceed 4.0:1.0 as of the end of the most recently
ended fiscal quarter for which financial statements have been delivered (the “Unsecured Ratio
Incremental Amount” and together with the Secured Ratio Incremental Amount, the “Ratio Incremental
Amounts”);
provided that (a) all Incremental Facilities and Incremental Equivalent Debt shall be incurred
under the Ratio Incremental Amounts prior to the Capped Incremental Amount and (b) Indebtedness may
be incurred under the Capped Incremental Amount and the Ratio Incremental Amount, and proceeds from
any such incurrence under the Capped Incremental Amount and the Ratio Incremental Amount may be
utilized in a single transaction by first calculating the incurrence under the Ratio Incremental Amount
(without inclusion of any amounts to be utilized pursuant to the Capped Incremental Amount) and then
calculating the incurrence under the Capped Incremental Amount.
“Available Revolving Commitment” means as to any Revolving Lender at any time, an amount
equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such
Lender’s Revolving Extensions of Credit then outstanding; provided, that in calculating any Lender’s
Revolving Extensions of Credit for the purpose of determining such Lender’s Available Revolving
Commitment pursuant to Section 2.08(a), the aggregate principal amount of Swingline Loans then
outstanding shall be deemed to be zero.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the
applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In
Legislation Schedule.
“Bank Product Obligations” means every obligation of the Company and its Subsidiaries under
and in respect of any (a) Swap Contract with the Administrative Agent, any Lender or any Affiliate
thereof, or any Person that was a Lender or Affiliate thereof at the time of making such Swap Contract, to
which the Company or such Subsidiary is a party or which the Company or such Subsidiary has
guaranteed and (b) one or more of the following types of services or facilities (or with respect to Cash
Management Services, any Person that was a Lender or Affiliate thereof at the time of making such Cash
Management Services) extended to the Company or such Subsidiary (or which the Company or such
Subsidiary has guaranteed) by the Administrative Agent, any Lender or any Affiliate thereof: (i) credit
and purchase cards, (ii) lease financing or related services, (iii) Cash Management Services, and (iv)
electronic business-to-business payment arrangements (and any corresponding float financing on accounts
payable related thereto).
“Bankers’ Acceptance” or “BA” means a time draft, drawn by the beneficiary under an
Acceptance Credit and accepted by the applicable Issuing Lender upon presentation of documents by the
beneficiary of an Acceptance Credit pursuant to Article III hereof, in the standard form for bankers’
acceptances of the applicable Issuing Lender. “Bankers’ Acceptance” or “BA” shall include Existing
Bankers’ Acceptances.
6
“Bankruptcy Event” means with respect to any Person, such Person becomes, in any relevant
jurisdiction, the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination of the
Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result
solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by
a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does
not result in or provide such Person with immunity from the jurisdiction of courts within the United States
or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Person.
“Base Rate”
means for any day, a rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in
effect on such day plus ½ of 1% and (c) the Eurocurrency Rate on such day (or, if such day is not a
Business Day, the next preceding Business Day) for a deposit in Dollars with a maturity of one month
plus 1.0%. Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or such
Eurocurrency Rate shall be effective as of the opening of business on the day of such change in the Prime
Rate, the NYFRB Rate or such Eurocurrency Rate, respectively.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans
shall be denominated in Dollars.
“Borrower” and “Borrowers” each has the meaning specified in the introductory paragraph
hereto.
“Borrower Materials” has the meaning specified in Section 6.02.
“Borrowing” means the borrowing of a Term Loan, Revolving Loan or Swingline Loan, as the
context may require.
“Borrowing Date” means any Business Day specified by the Company as a date on which a
Borrower requests the relevant Lenders to make Revolving Loans or Term Loans hereunder.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial
banks in New York City and London are authorized or required by law to close; provided, that (a) if such
day relates to any Revolving Loan denominated in a currency other than Dollars or Euros, such term shall
also mean any such day on which dealings in deposits in the relevant currency are conducted by and
between banks in the applicable foreign currency or foreign exchange interbank market but shall exclude
any day on which banks are not open for general business in the principal financial center of the country
of that currency, (b) if such day relates to any Revolving Loan denominated in Euro, such term shall also
mean a Target Operating Day that is also a London Business Day, and (c) if such day relates to any
Eurocurrency Rate Loan in Dollars, such term shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law to close which is
also a London Business Day.
“Canadian Dollar” means the lawful currency of Canada.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or
other amounts under any lease of (or other arrangement conveying the right to use) real or personal
7
property, or a combination thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be
the capitalized amount thereof determined in accordance with GAAP (without giving effect to any
subsequent changes in GAAP arising out of a change described in the Proposed Accounting Standards
Update to Leases (Topic 840) dated August 17, 2010, or a substantially similar pronouncement, in each
case, if such change would require treating any lease (or similar arrangement conveying the right to use)
as a capital lease where such lease (or similar arrangement) would not have been required to be so treated
under GAAP as in effect on the date hereof).
“Capped Incremental Amount” has the meaning specified in the definition of “Available
Incremental Amount.”
“Cash Management Services” means any services provided from time to time by the
Administrative Agent, any Lender or any Affiliate thereof to the Company or any Subsidiary (or
guaranteed by the Company or any Subsidiary) in connection with operating, collections, payroll, trust, or
other depository or disbursement accounts, including automatic clearinghouse, controlled disbursement,
depository, electronic funds transfer, information reporting, lockbox, stop payment, overdraft and/or wire
transfer services.
“CDOR Rate” means for any Loans in Canadian Dollars, the CDOR Screen Rate.
“CDOR Screen Rate” means with respect to any Interest Period for any Loans in Canadian
Dollars, the average rate for bankers acceptances as administered by the Investment Industry Regulatory
Organization of Canada (or any other Person that takes over the administration of that rate) with a tenor
equal in length to such Interest Period, as displayed on CDOR page of the Reuters screen or, in the event
such rate does not appear on such Reuters page, on any successor or substitute page on such screen or
service that displays such rate, or on the appropriate page of such other information service that publishes
such rate as shall be selected from time to time by the Administrative Agent in its reasonable discretion.
“Change of Control” means an event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly
or indirectly, of 25% or more of the equity securities of the Company entitled to vote for members of the
board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire pursuant to any option right);
(b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Company cease to be composed of individuals (i) who
were members of that board or equivalent governing body on the first day of such period, (ii) whose
election to that board or equivalent governing body was approved by individuals referred to in clause (i)
above constituting at the time of such election at least a majority of that board or equivalent governing
body or (iii) whose election to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election at least a majority of that
board or equivalent governing body;
8
(c) any Person or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will
result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over
the management or policies of the Company, or control over the equity securities of the Company entitled
to vote for members of the board of directors or equivalent governing body of the Company on a fully-
diluted basis (and taking into account all such securities that such Person or group has the right to acquire
pursuant to any option right) representing 25% or more of the combined voting power of such securities;
or
(d) the Company shall cease to have beneficial ownership (as defined in Rule 13d-3 under
the Exchange Act) of 100% of the aggregate voting power of the Equity Interest of each other Loan Party,
free and clear of all Liens (other than any Liens granted hereunder and Liens permitted under Section
7.01).
“Closing Date” means the date on which the conditions specified in Section 4.01 are satisfied (or
waived in accordance with Section 10.01).
“Co-Syndication Agents” means PNC Capital Markets LLC, Citizens Bank, N.A., and
Manufacturers and Traders Trust Company.
“Code” means the Internal Revenue Code of 1986.
“Collateral” means all of the property, rights and interests of the Loan Parties and their
Subsidiaries that are or are intended to be subject to the Liens created by the Security Documents.
“Commitment” means, as to any Lender, the sum of the Term Commitment and the Revolving
Commitment of such Lender.
“Commitment Fee Rate” means the rate set forth in the Applicable Rate grid.
“Company” has the meaning specified in the introductory paragraph hereto.
“Compliance Certificate” means a certificate substantially in the form of Exhibit A.
“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 Current Assets” means, on any date, all amounts (other than cash and cash
equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets”
(or any like caption) on a consolidated balance sheet of the Company and its Subsidiaries at such date.
“Consolidated Current Liabilities” means, on any date, all amounts that would, in conformity
with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a
consolidated balance sheet of the Company and its Subsidiaries at such date, but excluding (a) the current
portion of Funded Debt of the Company and its Subsidiaries and (b) without duplication of clause (a)
above, all Indebtedness consisting of Revolving Loans or Swingline Loans to the extent otherwise
included therein.
“Consolidated EBITDA” means, for any period and without duplication, (a) Consolidated Net
Income for such period, plus (b) to the extent deducted in calculating Consolidated Net Income and
without duplication (i) income taxes expensed during such period, (ii) Interest Expense during such
9
period, (iii) depreciation, amortization and other Non-Cash Charges accrued for such period, (iv)
Approved Restructuring Charges incurred during such period, (v) non-cash losses from any Recovery
Event, Disposition or discontinued operation during such period, (vi) non cash losses arising from xxxx-
to-market hedging arrangements, (vii) all non-recurring premiums, fees, costs and expenses (including,
without limitation, any prepayment premiums, bonuses, foreign currency hedging costs incurred in
connection with the consideration for such Material Acquisition and any loan forgiveness and associated
tax gross up payments and fees) incurred or payable by or on behalf of the Company, the Borrowers or
any Subsidiary in connection with any Material Acquisition during such period (excluding the Specified
Acquisition), in each case, whether or not such Material Acquisition is consummated and (viii) Pro Forma
Adjustments in connection with such Material Acquisition (including the Specified Acquisition) during
such period; provided that (A) such Pro Forma Adjustments shall be calculated net of the amount of
actual benefits realized and (B) the aggregate amount of all amounts under clause (vii) and this clause
(viii) that increase Consolidated EBITDA in any such period shall not exceed, and shall be limited to,
15% of Consolidated EBITDA in respect of such period (calculated after giving effect to such
adjustments and all other adjustments to Consolidated EBITDA), and (ix) Transaction Costs recorded on
or prior to 12 months after the Closing Date in an aggregate amount not to exceed $15,000,000, minus (c)
to the extent such items were added in calculating Consolidated Net Income (i) extraordinary gains during
such period, (ii) gains from any Recovery Event, Disposition, or discontinued operation during such
period, (iii) interest and other income (excluding interest and other income related to CM Insurance
Company, Inc.) during such period, (iv) Federal, state, local and foreign income tax credits of the
Company and its Subsidiaries for such period, and (v) all non-cash items for such period (including,
without limitation, non-cash gains arising from xxxx-to-market hedging arrangements).
“Consolidated Net Income” means, for any period, for the Company and its Subsidiaries on a
consolidated basis in accordance with GAAP, the net income of the Company and its Subsidiaries.
“Consolidated Working Capital” means, on any date, the excess of Consolidated Current Assets
on such date over Consolidated Current Liabilities on such date.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such
Person or of any agreement, instrument or other undertaking to which such Person is a party or by which
it or any of its property is bound.
“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.
“Copyright Agreement” means any grant of security interest in copyrights owned by any Loan
Party, made by any Loan Party in favor of the Administrative Agent, or any of its predecessors.
“Covenant Trigger” has the meaning specified in Section 7.11.
“Credit Party” means the Administrative Agent, each Issuing Lender, the Swingline Lender or
any other Lender and, for the purposes of Section 10.13 only, any other Agent and the Joint Lead
Arrangers.
“CRR” means the Council Regulation (EU) No 575/2013 of the European Parliament and of the
Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and
amending Regulation (EU) No 648/2012.
10
“Debtor Relief Laws” means the Bankruptcy Code of the United States, 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 and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of Default.
“Defaulting Lender” means, subject to Section 2.23, any Lender that, as determined by the
Administrative Agent, (a) has failed to perform its obligation to (i) fund all or any portion of its Loans,
within two Business Days of the date such Loans were required to be funded by it hereunder, unless such
Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of
such Lender’s determination that one or more conditions precedent to funding (each of which conditions
precedent, together with any applicable default, shall be specifically identified in such writing) has not
been satisfied, or (ii) pay to the Administrative Agent, the Issuing Lender, the Swingline Lender or any
other Lender any other amount required to be paid by it hereunder (including in respect of its participation
in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified
the Borrowers, the Administrative 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 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 Administrative Agent or the Borrowers, to confirm in writing to the
Administrative Agent and the Borrowers that it will comply with its prospective funding obligations
hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)
upon receipt of such written confirmation by the Administrative Agent and the Borrowers), (d) has, or has
a direct or indirect parent company that has become the subject of a Bankruptcy Event; 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 or permit such Lender (or such Governmental Authority) to reject, repudiate,
disavow or disaffirm any contracts or agreements made with such Lender or (e) has become the subject of
a Bail-In Action. Any determination by the Administrative Agent that a Lender is a Defaulting Lender
under any one or more of clauses (a) through (e) above, and of the effective date of such status, shall be
conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender
(subject to Section 2.23) as of the date established therefor by the Administrative Agent in a written
notice of such determination, which shall be delivered by the Administrative Agent to the Company, the
Issuing Lender, the Swingline Lender and each other Lender promptly following such determination.
“Designated Borrower” means (i) as of the Closing Date, the Dutch Borrower, the German
Borrower, and additionally (ii) any Subsidiaries of the Company that become party to this
Agreement pursuant to Section 2.25 after the Closing Date.
“Designated Borrower Notice” has the meaning specified in Section 2.25(a).
“Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.25(a).
11
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including
any sale and leaseback transaction) of any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
“Disqualified Equity Interest” means, with respect to any Person, any Equity Interest in such
Person that by its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any
event or condition:
(a) matures or is mandatorily redeemable (other than solely for Equity Interests in such
Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of
such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;
(b) is convertible or exchangeable, either mandatorily or at the option of the holder
thereof, for Indebtedness or Equity Interests (other than solely for Equity Interests in such Person
that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such
Equity Interests);
(c) is redeemable (other than solely for Equity Interests in such Person that do not
constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests)
or is required to be repurchased by the Company or any Subsidiary, in whole or in part, at the option
of the holder thereof; or
(d) requires the payment of any cash dividend or any other scheduled payment
constituting a return of capital;
in each case, on or prior to the date that is 91 days after the Latest Maturity Date (determined as of
the date of issuance thereof or, in the case of any such Equity Interests outstanding on the Closing Date, the
Closing Date); provided, however, that (i) an Equity Interest in any Person that would not constitute a
Disqualified Equity Interest but for terms thereof giving holders thereof the right to require such Person to
redeem or purchase such Equity Interest upon the occurrence of an “asset sale” or a “change of control” (or
similar event, however denominated) shall not constitute a Disqualified Equity Interest if any such
requirement becomes operative only after repayment in full of all the Loans and all other Obligations that
are accrued and payable, the cancellation or expiration of all Letters of Credit and the termination or
expiration of the Commitments and (ii) an Equity Interest in any Person that is issued to any employee or
to any plan for the benefit of employees or by any such plan to such employees shall not constitute a
Disqualified Equity Interest solely because it may be required to be repurchased by such Person or any of
its subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such
employee’s termination, death or disability.
“Dollar” and “$” mean lawful money of the United States.
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars,
such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent
amount thereof in Dollars as determined by the Administrative Agent or the Issuing Lender, as the case
may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation
Date) for the purchase of Dollars with such Alternative Currency. The Dollar Equivalent at any time of
the amount of any Letter of Credit, Bankers’ Acceptance or Loan denominated in an Alternative Currency
shall be the amount most recently determined as provided in Section 1.05.
12
“Domestic Loan Party” means a Loan Party that is organized under the laws of any political
subdivision of the United States.
“Domestic Loan Party Obligations” means Obligations of the Domestic Loan Parties.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political
subdivision of the United States.
“Dutch Borrower” has the meaning specified in the introductory paragraph hereto.
“Dutch Designated Borrower” means any Designated Borrower organized under the laws of the
Netherlands.
“Dutch Insolvency Event” means any bankruptcy (faillissement), suspension of payments
(surseance van betaling), administration (onderbewindstelling), dissolution (ontbinding) and any other
event whereby the relevant company is limited in the right to dispose of its assets under the laws of the
Netherlands.
“EEA Financial Institution” means (a) any institution 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
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.
“ECF Percentage” means 50%; provided, that, with respect to each fiscal year of the Company
ending after April 1, 2017, the ECF Percentage for such fiscal year shall be reduced to (i) 25% if the
Secured Leverage Ratio as of the last day of such fiscal year is not greater than 3.00 to 1.00 and (ii) 0% if
the Secured Leverage Ratio as of the last day of such fiscal year is not greater than 2.00 to 1.00.
“EMU” means the economic and monetary union in accordance with the Treaty of Rome 1957, as
amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty of 1992 and the Amsterdam Treaty of
1998.
“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.
“Environmental Indemnity Agreement” means that certain Environmental Indemnity Agreement,
dated as of the date hereof among the Company, Yale Industrial Products, Inc., Crane Equipment &
Service, Inc., Unified Industries Inc., Magnetek, Inc. and the Administrative Agent, as amended, modified
and/or restated from time to time.
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or governmental restrictions relating to pollution and the protection of the
13
environment or the release of any materials into the environment, including those related to hazardous
substances or wastes, air emissions and discharges to water or public wastewater treatment systems,
applicable in, or pursuant to the laws of, any jurisdiction.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities), of the Company, any other
Loan 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, treatment
or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase
or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in)
such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition
from such Person of such shares (or such other interests), and all of the other ownership or profit interests
in such Person (including partnership, member or trust interests therein), whether voting or nonvoting,
and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of
determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m)
and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal
of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or
a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan; (d)
the filing of a notice of intent to terminate or the treatment of a Pension Plan amendment as a termination,
under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a
Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that
any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the
meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate; or (i) a Foreign
Plan Event.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the
Loan Market Association (or any successor Person), as in effect from time to time.
“Euro” and “EUR” mean the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.
“Eurocurrency Base Rate” means (A) with respect to any Eurocurrency Rate Loan for any
14
applicable currency (other than a Non-Quoted Currency) and for any Interest Period, the London
interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that
takes over the administration of such rate) for Dollars or the relevant currency for a period equal in length
to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters Screen that displays
such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or
substitute page on such screen that displays such rate, or on the appropriate page of such other
information service that publishes such rate from time to time as selected by the Administrative Agent in
its reasonable discretion; in each case, the “LIBOR Screen Rate”) at approximately 11:00 A.M., London
time, two Business Days prior to the commencement of such Interest Period (or in the case of any
Eurocurrency Rate Loan denominated in Sterling, on the same day as the commencement of such Interest
Period) and (B) with respect to any Eurocurrency Rate Loan for a Non-Quoted Currency and for any
Interest Period, the applicable Local Screen Rate for such Non-Quoted Currency as of the Specified Time
and on the Quotation Day for such Non-Quoted Currency and Interest Period; provided that if the LIBOR
Screen Rate or a Local Screen Rate, as applicable, shall be less than zero, such rate shall be deemed to be
zero for the purposes of this Agreement; provided further that if the LIBOR Screen Rate or a Local
Screen Rate, as applicable, shall not be available at such time for such Interest Period (an “Impacted
Interest Period”) with respect to the applicable currency, then the Eurocurrency Base Rate shall be the
Interpolated Rate (provided that if any Interpolated Rate shall be less than zero, such rate shall be deemed
to be zero for purposes at such time); provided further that if the Screen Rate shall be less than zero, such
rate shall be deemed to be zero for purposes of this Agreement).
“Eurocurrency Tranche” means the collective reference to Eurocurrency Rate Loans of the same
currency under a particular Facility the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such Loans shall originally have been made
on the same day).
“Eurocurrency Rate Loan” means Loans the rate of interest applicable to which is based upon the
Eurocurrency Rate. All Revolving Loans denominated in an Alternative Currency must be Eurocurrency
Rate Loans.
“Eurocurrency Rate” means with respect to each day during each Interest Period pertaining to a
Eurocurrency Rate Loan, a rate per annum determined for such day in accordance with the following
formula:
Eurocurrency Base Rate
1.00 - Eurocurrency Reserve Requirements
; provided that, with respect to Term Loans, the Eurocurrency Rate shall not be less than 1.00% per
annum.
“Eurocurrency Reserve Requirements” means for any day as applied to a Eurocurrency Rate
Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including basic, supplemental, marginal and emergency
reserves) under any regulations of the FRB or other Governmental Authority having jurisdiction with
respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.
“Event of Default” has the meaning specified in Section 8.01.
15
“Excess Cash Flow” means, for any fiscal year of the Company, the excess, if any, of (a) the sum,
without duplication, of (i) Consolidated Net Income for such fiscal year, (ii) the amount of all non-cash
charges (including depreciation and amortization) deducted in arriving at such Consolidated Net Income,
(iii) decreases in Consolidated Working Capital for such fiscal year, and (iv) the aggregate net amount of
non-cash loss on the Disposition of property by the Company and its Subsidiaries during such fiscal year
(other than sales of inventory in the ordinary course of business), to the extent deducted in arriving at
such Consolidated Net Income over (b) the sum, without duplication, of (i) the amount of all non-cash
credits included in arriving at such Consolidated Net Income, (ii) the aggregate amount actually paid by
the Company and its Subsidiaries in cash during such fiscal year on account of capital expenditures
(excluding the principal amount of Indebtedness incurred in connection with such expenditures and any
such expenditures financed with the proceeds of any Reinvestment Deferred Amount), (iii) the aggregate
amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year to the extent
accompanying permanent optional reductions of the Revolving Commitments and all optional
prepayments of the Term Loans during such fiscal year, (iv) the aggregate amount of all regularly
scheduled principal payments of Funded Debt (including the Term Loans) of the Company and its
Subsidiaries made during such fiscal year (other than in respect of any revolving credit facility to the
extent there is not an equivalent permanent reduction in commitments thereunder), (v) increases in
Consolidated Working Capital for such fiscal year, and (vi) the aggregate net amount of non-cash gain on
the Disposition of property by the Company and its Subsidiaries during such fiscal year (other than sales
of inventory in the ordinary course of business), to the extent included in arriving at such Consolidated
Net Income.
“Excess Cash Flow Application Date” has the meaning specified in Section 2.11(c).
“Excluded Taxes” means, any of the following Taxes imposed on or with respect to any Credit
Party or required to be withheld or deducted from a payment to a Credit Party, (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 Credit Party being organized under the laws of, or having its principal
office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or
any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S.
federal withholding Taxes 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 the Company under Section 2.22) or (ii) such Lender changes its Lending Office, except in
each case to the extent that, pursuant to Section 2.19(a) or (d), amounts with respect to such Taxes were
payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest
in a Loan or Commitment or to such Lender immediately before it changed its Lending Office, (c) Taxes
attributable to such Credit Party’s failure to comply with Section 2.19(f) and (d) any U.S. federal
withholding Taxes imposed pursuant to FATCA.
“Existing Bankers’ Acceptances” means each Bankers’ Acceptance issued by JPMorgan Chase
Bank, N.A. and other financial institutions (including any Bankers’ Acceptance deemed to be issued)
under the Existing Credit Agreement and listed on Schedule 1.01.
“Existing Credit Agreement” means that certain Credit Agreement, dated as of January 23, 2015,
as amended to the date hereof, among the Company, JPMorgan Chase Bank, N.A., as the administrative
agent and the other lenders and agents party thereto.
“Existing Investment” has the meaning specified in Section 7.02(j).
16
“Existing Letters of Credit” means any Letter of Credit issued by JPMorgan Chase Bank, N.A.
(including any Letter of Credit deemed to be issued) under the Existing Credit Agreement and listed on
Schedule 1.01.
“Facility” means each of (a) the Initial Term Loans (the “Initial Term Loan Facility”), (b) the
Revolving Commitments and the extensions of credit made thereunder (the “Revolving Facility”, and
when in reference to the Incremental Revolving Commitments only, the “Incremental Revolving
Facility”) and (c) the Incremental Term Loans (the “Incremental Term Facility”).
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.
“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, intergovernmental
agreements entered into pursuant to the foregoing, any agreements entered into pursuant to Section
1471(b)(1) of the Code and any law, regulation, rule, promulgation, guidance notes, practices or official
agreement implementing an official government agreement with respect to the foregoing.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on
such day’s federal funds transactions by depositary institutions (as determined in such manner as the
NYFRB shall set forth on its public website from time to time) and published on the next succeeding
Business Day by the NYFRB as the federal funds effective rate; provided, that, if the federal funds
effective rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee Payment Date” means (a) the third Business Day following the last day of each March, June,
September and December and (b) the last day of the Revolving Commitment Period.
“Foreign Borrower” means the Dutch Borrower, the German Borrower and any Designated
Borrower that is a Foreign Subsidiary.
“Foreign Borrower Sublimit” means the lesser of (a) $80,000,000 and (b) the Revolving
Commitment. The Foreign Borrower Sublimit is part of, and not in addition to, the Revolving
Commitment.
“Foreign Government Scheme or Arrangement” has the meaning specified in Section 5.12(e).
“Foreign Lender” means, (a) if the applicable Borrower is a U.S. Person, a Lender that is not a
U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or organized
under the Laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. For
purposes of this definition, the United States, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
“Foreign Loan Party” means a Loan Party that is organized under the laws of a jurisdiction other
than the United States, a State thereof or the District of Columbia.
“Foreign Loan Party Obligations” means Obligations of each Foreign Loan Party.
“Foreign Plan” has the meaning specified in Section 5.12(e).
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“Foreign Plan Event” means, with respect to any Foreign Plan or Foreign Government Scheme or
Arrangement, (a) the failure to make, or if applicable, accrue in accordance with normal accounting
practices, any employer or employee contributions required by applicable law or by the terms of such
Foreign Plan or Foreign Government Scheme or Arrangement; (b) the failure to register or loss of good
standing with applicable regulatory authorities of any such Foreign Plan or Foreign Government Scheme
or Arrangement required to be registered; or (c) the failure of any Foreign Plan or Foreign Government
Scheme or Arrangement to comply with any material provisions of applicable law and regulations or with
the material terms of such Foreign Plan or Foreign Government Scheme or Arrangement.
“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction
other than the United States, a State thereof or the District of Columbia.
“FRB” means the Board of Governors of the Federal Reserve System of the United States (or any
successor).
“Funded Debt” means, as to any Person, all Indebtedness of such Person that matures more than
one year from the date of its creation or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period
of more than one year from such date, including all current maturities and current sinking fund payments
in respect of such Indebtedness whether or not required to be paid within one year from the date of its
creation and, in the case of the Borrowers, Indebtedness in respect of the Loans.
“Funding Office” means the office of the Administrative Agent specified in Section 10.2 or such
other office as may be specified from time to time by the Administrative Agent as its funding office by
written notice to the Company and the Lenders.
“GAAP” means (a) generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or
such other principles as may be approved by a significant segment of the accounting profession in the
United States, or (b) in the case of Foreign Subsidiaries, generally accepted accounting principles in effect
from time to time in their respective jurisdictions of organization, each as applicable to the circumstances
as of the date of determination, consistently applied.
“German Borrower” has the meaning specified in the introductory paragraph hereto.
“Governmental Authority” means the government of the United States or any other nation, or of
any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government (including any supra-
national bodies such as the European Union or the European Central Bank).
“Guarantee” means, as to any Person, any (a) obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable
or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or
lease property, securities or services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation,
(iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or
18
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the
obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any
holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to
be an amount equal to the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
The term “Guarantee” as a verb has a corresponding meaning.
“Guarantors” means, collectively, the Company (other than with respect to its Obligations) each
Subsidiary of the Company listed as “Guarantor” on the signature pages hereto and each other Person
(other than a Borrower) which guaranties the Obligations. With respect to any Domestic Loan Party
Obligation, “Guarantor” shall exclude any Foreign Subsidiary of the Company.
“Guarantee Agreement” means that certain Guarantee Agreement, dated as of the date hereof,
from the Company and certain of its Domestic Subsidiaries to the Administrative Agent, as amended,
modified and/or restated from time to time.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous
or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any Environmental Law.
“HIBOR Rate” means for any Loans in Hong Kong Dollars, the HIBOR Screen Rate.
“HIBOR Screen Rate” means with respect to any Loan denominated in Hong Kong Dollars and
for any Interest Period with respect thereto, the percentage rate per annum designated as “FIXING @
11.00” (or any replacement designation or, if not designation appears, the arithmetic average (rounded
upwards to five decimal places) of the displayed rates) for the relevant period displayed under the heading
“HONG KONG INTERBANK OFFERED RATES (HK DOLLAR)” on the Reuters Screen HIBOR1=R
Page or HIBOR2=R Page (as appropriate) (or any replacement Reuters page which displays that rate) (in
each case the “HIBOR Screen Rate”) as of the Specified Time on the Quotation Day for such Interest
Period; provided that if the HIBOR Screen Rate shall be less than zero, such rate shall be deemed to be
zero for the purposes of this Agreement; provided further that if an Impacted Interest Period exists with
respect to Hong Kong Dollars, then the Eurocurrency Rate shall be the Interpolated Rate; and provided
further that if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for
purposes of this Agreement
“Hong Kong Dollar” means the lawful currency of Hong Kong.
“Increased Facility Activation Date” means any Business Day on which any Incremental Lender
shall execute and deliver to the Administrative Agents an Increased Facility Activation Notice pursuant to
Section 2.24(a).
“Increased Facility Activation Notice” means a notice substantially in the form of Exhibit F-1 or
F-2, as applicable.
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“Increased Facility Closing Date” means any Business Day designated as such in an Increased
Facility Activation Notice.
“Incremental Equivalent Debt” means any Indebtedness incurred by the Company or any of its
Subsidiaries in the form of one or more series of secured or unsecured bonds, debentures, notes or similar
instruments that are issued in a public offering, Rule 144A or other private placement or bridge in lieu of
the foregoing, or senior or subordinated mezzanine Indebtedness or term loans; provided that (a) if such
Indebtedness is secured, (i) such Indebtedness shall be secured by the Collateral (x) in the case of bonds,
debentures, notes or similar instruments, on a pari passu or junior basis to the Obligations, and (y) in the
case of loans, on a junior basis to the Obligations (but, in each case, without regard to the control of
remedies) and shall not be secured by any property or assets of the Company or any of the Subsidiaries
other than the Collateral, (ii) the security agreements relating to such Indebtedness are substantially
similar to the Security Documents (with such differences as are reasonably satisfactory to the
Administrative Agent and other than, in the case of Indebtedness secured on a junior basis, with respect to
priority) and (iii) a representative, trustee, collateral agent, security agent or similar Person acting on
behalf of the holders of such Indebtedness shall have become party to an Intercreditor Agreement, (b)
such Indebtedness (x) if secured on a pari passu basis to the Obligations, does not mature earlier than the
Latest Maturity Date in effect hereunder at the time of incurrence thereof, (y) if secured on a junior basis
to the Obligations or unsecured, does not mature earlier than the date that is 91 days after the Latest
Maturity Date in effect hereunder at the time of incurrence thereof and (z) has a weighted average life to
maturity no shorter than the Latest Maturity Date in effect at the time of incurrence of such Indebtedness,
(c) such Indebtedness contains covenants, events of default and other terms that are customary for similar
Indebtedness in light of then-prevailing market conditions and, when taken as a whole (other than interest
rates, fees and optional prepayment or redemption terms), are substantially identical to, or are not more
favorable to the investors or lenders providing such Indebtedness than, those set forth in the Loan
Documents (other than covenants or other provisions applicable only to periods after the Latest Maturity
Date then in effect); provided that a certificate of a financial officer of the Company delivered to the
Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness or the
modification, refinancing, refunding, renewal or extension thereof (or such shorter period of time as may
reasonably be agreed by the Administrative Agent), together with a reasonably detailed description of the
material terms and conditions of such Incremental Equivalent Debt or drafts of the material definitive
documentation relating thereto, stating that the Company has determined in good faith that such terms and
conditions satisfy the foregoing requirements shall be conclusive unless the Administrative Agent
provides notice to the Company of its reasonable objection during such period together with a reasonable
description of the basis upon which it objects, (d) in the case of Incremental Equivalent Debt in the form
of bonds, debentures, notes or similar instruments, such Indebtedness does not provide for any
amortization, mandatory pre-payment, redemption or repurchase (other than upon a change of control,
fundamental change, conversion or exchange in the case of convertible or exchangeable Indebtedness,
customary asset sale or event of loss mandatory offers to purchase, and customary acceleration rights after
an event of default) prior to the Latest Maturity Date then in effect and (e) such Indebtedness is not
guaranteed by any Person other than Loan Parties. Incremental Equivalent Debt will include any
Registered Equivalent Notes issued in exchange therefor.
“Incremental Facilities” means, collectively, the Incremental Term Facility and the Incremental
Revolving Facility.
“Incremental Lender” means an Incremental Revolving Lender or an Incremental Term Lender.
“Incremental Revolving Commitment” means, with respect to any Lender, the commitment, if
any, of such Lender, established pursuant to an Increased Facility Activation Notice and Section 2.24(a),
to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans
20
hereunder in an aggregate principal and/or face amount not to exceed the amount set forth in the
Increased Facility Activation Notice providing for Incremental Revolving Commitments.
“Incremental Revolving Facility” has the meaning specified in the definition of “Facility”.
“Incremental Revolving Lender” means (a) on any Increased Facility Activation Date relating to
Revolving Facility, the Lenders signatory to the relevant Increased Facility Activation Notice and (b)
thereafter, each a Lender with an Incremental Revolving Commitment.
“Incremental Term Commitment” means, with respect to any Lender, the commitment, if any, of
such Lender, established pursuant to an Increased Facility Activation Notice and Section 2.24(a), to make
Incremental Term Loans in an aggregate principal amount not to exceed the amount set forth in the
Increased Facility Activation Notice providing for Incremental Term Commitments.
“Incremental Term Facility” has the meaning specified in the definition of “Facility”.
“Incremental Term Lenders” means (a) on any Increased Facility Activation Date relating to
Incremental Term Loans, the Lenders signatory to the relevant Increased Facility Activation Notice and
(b) thereafter, each Lender that is a holder of an Incremental Term Loan.
“Incremental Term Loans” means any term loans made pursuant to Section 2.24(a).
“Incremental Term Maturity Date” means with respect to the Incremental Term Loans to be made
pursuant to any Increased Facility Activation Notice, the maturity date specified in such Increased
Facility Activation Notice.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and, in each case, not past due for
more than 90 days after the date on which such trade account payable was created);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed by such Person or is
limited in recourse;
(f) Capital Lease Obligations and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a
21
redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited liability
company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is made
expressly non-recourse to such Person. The amount of any net obligation under any Swap Contract on
any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any
Capital Lease Obligations or Synthetic Lease Obligation as of any date shall be deemed to be the
amount of Attributable Indebtedness in respect thereof as of such date.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to
any payment made by or on account of any obligation of any Loan Party under any Loan Document and
(b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning specified in Section 10.05.
“Information” has the meaning specified in Section 10.15.
“Initial Term Commitment” means as to any Initial Term Lender, the obligation of such Initial
Term Lender, if any, to make an Initial Term Loan to the Company in a principal amount not to exceed
the amount set forth under the heading “Initial Term Commitment” opposite such Initial Term Lender’s
name on Schedule 2.01. The aggregate amount of the Initial Term Commitments is $445,000,000 on the
Closing Date. For the avoidance of doubt, the Initial Term Loans shall be denominated in Dollars only.
“Initial Term Lender” means each Lender that has an Initial Term Commitment or that holds an
Term Loan.
“Initial Term Loan” has the meaning specified in Section 2.01.
“Initial Term Loan Maturity Date” means the date that is seven years after the Closing Date.
“Initial Term Percentage” means as to any Initial Term Lender, the percentage which the
aggregate principal amount of such Initial Term Lender’s Initial Term Loans then outstanding constitutes
of the aggregate principal amount of the Initial Term Loans then outstanding.
“Insolvency Regulation” means the Council Regulation (EC) No. 1346/2000 29 May 2000 on
Insolvency Proceedings.
“Intellectual Property Security Agreements” means each Trademark Agreement, Patent
Agreement or Copyright Agreement.
“Intercreditor Agreement” means (a) in respect of Indebtedness intended to be secured by some
or all of the Collateral on a pari passu basis with the Obligations, an intercreditor agreement reasonably
acceptable to the Administrative Agent the terms of which are consistent with market terms governing
security arrangements for the sharing of Liens on a pari passu basis at the time such intercreditor
agreement is proposed to be established in light of the type of Indebtedness to be secured by such Liens,
as reasonably determined by the Administrative Agent and the Company, and (b) in respect of
Indebtedness intended to be secured by some or all of the Collateral on a junior priority basis with the
22
Obligations, an intercreditor agreement reasonably acceptable to the Administrative Agent the terms of
which are consistent with market terms governing security arrangements for the sharing of Liens on a
junior basis at the time such inter-creditor agreement is proposed to be established in light of the type of
Indebtedness to be secured by such Liens, as reasonably determined by the Administrative Agent and the
Company.
“Interest Expense” means, for any period, the sum, without duplication, for the Company and its
Subsidiaries (determined on a consolidated basis in accordance with GAAP), of the following: (a) all
interest in respect of Indebtedness accrued or paid during such period (whether or not actually paid during
such period), plus (b) the net amounts paid (or minus the net amounts received) in respect of interest rate
Swap Contracts during such period, excluding reimbursement of legal fees and other similar transaction
costs and excluding payments required by reason of the early termination of interest rate Swap Contracts
in effect on the Closing Date, plus (c) all fees, including letter of credit or bankers’ acceptance fees and
expenses, (but excluding reimbursement of legal fees), plus (d) the amortization of financing costs in
connection with Indebtedness.
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of
each Interest Period applicable to such Loan and the Initial Term Loan Maturity Date or the Revolving
Termination Date (as applicable); provided, however, that if any Interest Period for a Eurocurrency Rate
Loan exceeds three months, the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a
Swingline Loan), the last day of each March, June, September and December and the Initial Term Loan
Maturity Date or the Revolving Termination Date (as applicable).
“Interest Period” means, as to any Eurocurrency Rate Loan, CDOR Rate Loan or HIBOR Rate
Loan, (a) initially, the period commencing on the borrowing date, as the case may be, with respect to such
Eurocurrency Rate Loan, CDOR Rate Loan or HIBOR Rate Loan, and ending one, two, three or six (or, if
agreed to by all Lenders under the relevant Facility, twelve) months thereafter ; and (b) thereafter, each
period commencing on the last day of the next preceding Interest Period applicable to such Eurocurrency
Rate Loan, CDOR Rate Loan or HIBOR Rate Loan, and ending one, two, three or six (or, if agreed to by
all Lenders under the relevant Facility, twelve) months thereafter, as selected by the Company by
irrevocable notice to the Administrative Agent not later than 11:00 A.M., Local Time, on the date that is
(i) three Business Days (in the case of Eurocurrency Rate Loans denominated in Dollars) and (ii) four
Business Days (in the case of Eurocurrency Rate Loans denominated in Alternative Currencies, CDOR
Rate Loans denominated in Canadian Dollars, HIBOR Rate Loans denominated in Hong Kong Dollars)
prior to the last day of the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrowers may not select an Interest Period under a particular Facility that
would extend beyond the Revolving Termination Date or beyond the date final payment is due on
the relevant Initial Term Loans, as the case may be;
(iii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a calendar month; and
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(iv) the Borrowers shall select Interest Periods so as not to require a payment or
prepayment of any Eurocurrency Rate Loan, CDOR Rate Loan or HIBOR Rate Loan during an
Interest Period for such Loan.
“Internal Control Event” means a material weakness in, or fraud that involves management or
other employees who have a significant role in, the Company’s internal controls over financial reporting,
in each case as described in the Securities Laws.
“Interpolated Rate” means, at any time, the rate per annum determined by the Administrative
Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate
that results from interpolating on a linear basis between: (a) the Screen Rate for the longest period (for
which that Screen Rate is available in Dollars) that is shorter than the Impacted Interest Period and (b) the
Screen Rate for the shortest period (for which that Screen Rate is available for Dollars) that exceeds the
Impacted Interest Period, in each case, at such time, provided that if the Interpolated Rate shall be less
than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person and any arrangement pursuant to
which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition
(in one transaction or a series of transactions) of assets of another Person that constitute a business unit.
For purposes of covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“IP Rights” has the meaning specified in Section 5.18.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as
may be in effect at the time of issuance).
“Issuing Lender” means each of JPMorgan Chase Bank, N.A. and PNC Bank, N.A. and any other
Revolving Lender approved by the Administrative Agent and the applicable Borrower that has agreed in
its sole discretion to act as an “Issuing Lender” hereunder, or any of their respective affiliates, in each
case in its capacity as issuer of any Letter of Credit or BA. Each reference herein to “the Issuing Lender”
shall be deemed to be a reference to the relevant Issuing Lender.
“Joint Lead Arrangers” means X.X. Xxxxxx Xxxxx Bank, N.A., PNC Capital Markets LLC,
Citizens Bank, N.A., and Manufacturers and Traders Trust Company, in their capacities as joint lead
arrangers and joint bookrunners and BMO Capital Markets Corp. in its capacity as joint lead arranger
solely with respect to the Revolving Facility.
“Latest Maturity Date” means, at any date of determination, the latest Maturity Date applicable to
any Loan or Commitment hereunder at such time, including in respect of any Incremental Facility.
“Law” means, as to any Person, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents
or authorities, including the interpretation or administration thereof by any Governmental Authority
24
charged with the enforcement, interpretation or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
“L/C-B/A Commitment” $40,000,000.
“L/C-B/A Credit Extension” means, with respect to any Letter of Credit or Bankers’ Acceptance,
the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount
thereof.
“L/C-B/A Exposure” means at any time, the total L/C-B/A Obligations. The L/C-B/A Exposure
of any Revolving Lender at any time shall be its Revolving Percentage of the total L/C-B/A Exposure at
such time.
“L/C-B/A Obligations” means at any time, an amount equal to the sum of (a) the Dollar
Equivalent of the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit
and Bankers’ Acceptances and (b) the Dollar Equivalent of the aggregate amount of drawings under
Letters of Credit and Bankers’ Acceptances that have not then been reimbursed pursuant to Section 3.05.
“L/C-B/A Participants” means the collective reference to all the Revolving Lenders other than the
Issuing Lender.
“Lender” has the meaning specified in the introductory paragraph hereto and, as the context
requires, includes the Swingline Lender.
“Lender Parent” means with respect to any Lender, any Person as to which such Lender is,
directly or indirectly, a Subsidiary.
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such
in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time
to time notify the Company and the Administrative Agent.
“Letter of Credit” means any letter of credit issued hereunder and shall include the Existing
Letters of Credit. Letters of Credit may be issued in Dollars or in an Alternative Currency. A Letter of
Credit may be a commercial letter of credit or a standby letter of credit.
“Letter of Credit-B/A Expiration Date” means the day that is five days prior to the Revolving
Termination Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“LIBOR Screen Rate” has the meaning specified in the definition of “Eurocurrency Base Rate.”
“Lien” means, in any jurisdiction, any mortgage, pledge, hypothecation, assignment, exclusive
license, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement in the nature of a security interest of any kind or nature
whatsoever (including any conditional sale or other title retention agreement, any easement, right of way
or other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).
“Liquidity” means, as of any date of determination, an amount equal to the sum of (a) the
unrestricted cash on hand of the Company and its Subsidiaries on such date, plus (b) the result of (i) the
25
Revolving Commitments in effect on such date, minus (ii) the Total Revolving Extensions of Credit on
such date.
“Loan” means any loan made by any Lender pursuant to this Agreement.
“Loan Documents” means this Agreement, each Designated Borrower Request and Assumption
Agreement, each Note and each of the Security Documents or any other agreement, instrument or
document designated by its terms as a Loan Document.
“Loan Parties” means, collectively, the Company, the Dutch Borrower, the German Borrower,
each Designated Borrower and each Guarantor.
“Local Screen Rate” means the CDOR Screen Rate and the HIBOR Screen Rate.
“Local Time” means (a) in the case of a Loan, Borrowing or Letter of Credit disbursement
denominated in Dollars, New York City time or (b) in the case of a Loan or Borrowing denominated in an
Alternative Currency, local time at the place of funding (it being understood that such local time shall
mean London, England time unless otherwise notified by the Administrative Agent).
“Majority Facility Lenders” means with respect to any Facility, the holders of more than 50% of
the aggregate unpaid principal amount of the Initial Term Loans or the Total Revolving Extensions of
Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving Facility, prior
to any termination of the Revolving Commitments, the holders of more than 50% of the Total Revolving
Commitments).
“Material Acquisition” means a Permitted Acquisition involving aggregate consideration in
excess of $100,000,000.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect
upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or
otherwise) or prospects of the Company or the Company and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Loan Parties, taken as a whole, to perform their obligations under
the Loan Documents to which they are party; or (c) a material adverse effect upon the legality, validity,
binding effect, enforceability or rights and remedies of the Administrative Agent or the Lenders against
the Loan Parties under the Loan Documents.
“Material Rental Obligation” means the obligation of the Loan Parties to pay rent under any one
or more operating leases with respect to any real or personal property that is material to the business of
the Loan Parties and as to which the aggregate amount of all rents payable during any fiscal year exceeds
$4,000,000.
“Maturity Date” means the Initial Term Maturity Date, the Incremental Term Maturity Date with
respect to Incremental Term Loans or the Revolving Termination Date, and any amendment or extension
of the foregoing with respect to all or a portion of any Loans or Commitments as permitted hereunder.
“Modified Investment” has the meaning specified in Section 7.02(j).
“Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.
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“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including
the Company or any ERISA Affiliate) at least two of whom are not under common control, as such a plan
is described in Section 4064 of ERISA.
“Net Cash Proceeds” means:
(a) with respect to the sale of any asset by the Company or its Subsidiaries, the excess, if
any, of (i) the sum of cash and cash equivalents received in connection with such sale (including any cash
received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise,
but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that
is secured by such asset, so long as the lien securing such Indebtedness is permitted pursuant to Section
7.01, and that is required to be repaid in connection with the sale thereof (other than Indebtedness under
the Loan Documents), (B) the out-of-pocket expenses incurred by such Loan Party in connection with
such sale and (C) income taxes reasonably estimated to be actually payable within two years of the date of
the relevant asset sale as a result of any gain recognized in connection therewith; and
(b) with respect to the sale of any capital stock or other equity interest or the incurrence of
any Indebtedness by the Company or its Subsidiaries, the excess of (i) the sum of the cash and cash
equivalents received in connection with such sale or incurrence over (ii) the underwriting discounts and
commissions, and other out-of-pocket expenses, incurred by the Company or its Subsidiaries in
connection with such sale or incurrence.
“New Lender Supplement” has the meaning specified in Section 2.24(b).
“Non-Cash Charges” means, with respect to any calculation of Consolidated Net Income for any
period, all non-cash losses and charges deducted in such calculation, as determined in accordance with
GAAP (excluding inventory and account receivable write-downs and charge-offs), including, without
limitation, non-cash recognition of unrealized declines in the market value of marketable securities
recorded in accordance with FASB Statement No. 115, non-cash asset impairment charges recorded in
accordance with FASB Statement No. 142 and FASB Statement No. 144.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such
time.
“Non-Public Lender” means:
(i) until interpretation of “public” as referred to in the CRR by the relevant authority/ies: an entity
that provides repayable funds to the Dutch Borrower or any Dutch Designated Borrower for a minimum
initial amount of EUR 100,000 (or its equivalent in another currency) or an entity otherwise qualifying as
not forming part of the public; and
(ii) following the publication of an interpretation of “public” as referred to in the CRR by the
relevant authority/ies: such amount or such criterion as a result of which such entity shall qualify as not
forming part of the public.
“Non-Quoted Currency” means Canadian Dollars and Hong Kong Dollars.
“Not Otherwise Applied” means, with reference to the Available Amount, the amount as of any
date of determination that was not previously applied pursuant to Section 7.02(o), Section 7.06(e) (solely
to the extent the Available Amount was utilized thereunder) and Section 7.06(f) (solely to the extent the
Available Amount was utilized thereunder).
27
“Note” means the collective reference to any promissory note evidencing Loans.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect
on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a
Business Day, for the immediately preceding Business Day); provided that if none of such rates are
published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds
transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a federal funds
broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be
less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of,
the Company and its Subsidiaries arising under any Loan Document or otherwise with respect to any
Loan or Letter of Credit or Bankers’ Acceptance or any Bank Product Obligations, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after the commencement by or
against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws or under
the Dutch Faillissementswet naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.
“Organization Documents” means, (a) with respect to any entity incorporated in any U.S.
jurisdiction (i) that is a corporation, the certificate or articles of incorporation and the bylaws; (ii) that is a
limited liability company, the certificate or articles of formation or organization and operating agreement;
and (iii) that is a partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument, filing
or notice with respect thereto filed in connection with its formation or organization with the applicable
Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity, or (b) with respect to any entity
incorporated in any non-U.S. jurisdiction, the equivalent or comparable constitutive documents to those
set forth in clause (a) above including the certificate or articles of incorporation and the bylaws for any
besloten vennootschap met beperkte aansprakelijkheid.
“Other Connection Taxes” means, with respect to any Credit Party, Taxes imposed as a result of a
present or former connection between such Credit Party and the jurisdiction imposing such Tax (other
than (i) connections arising from such Credit Party having executed, delivered, become a party to,
performed its obligations under, received payments under, received or perfected a security interest under,
engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an
interest in any Loan or Loan Document and (ii) any Dutch Taxes as a result of any Credit Party having an
interest, directly or indirectly, of 5% or more in the Dutch Borrower).
“Other Taxes” means all present or future stamp, court or 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, any Loan Document, except any such Taxes that are Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant to Section 2.22).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal
funds and overnight Eurocurrency borrowings by U.S.-managed banking offices of depository
institutions, (as such composite rate shall be determined by the NYFRB as set forth on its public website
28
from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight
bank funding rate (from and after such date as the NYFRB shall commence to publish such composite
rate).
“Participant” has the meaning specified in Section 10.06(c).
“Participant Register” has the meaning specified in Section 10.06(c).
“Participating Member State” means each state so described in any EMU Legislation.
“Patent Agreement” means any grant of security interest in patents owned by any Loan Party,
made by any Loan Party in favor of the Administrative Agent.
“PBGC” means the Pension Benefit Guaranty Corporation.
“PCAOB” means the Public Company Accounting Oversight Board.
“Pension Act” means the Pension Protection Act of 2006, as amended.
“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required
contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect
to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section
302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431, 432 and
436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or
a Multiemployer Plan) that is maintained or is contributed to by any Borrower and any ERISA Affiliate
and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section
412 of the Code.
“Permitted Acquisition” has the meaning specified in Section 7.02(h).
“Permitted Encumbrances” means, with respect to each fee-owned or leasehold real property of
the Company or any Subsidiary (or similar property interests under local law), those liens, encumbrances
and other matters affecting title, zoning, building codes, land use and other similar Laws and municipal
ordinances and other similar items, which in any such case, do not materially detract from the value of the
property or impair, in any material respect, the use or ownership of such property for its intended purpose,
in the ordinary course of business.
“Person” means any natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other entity.
“PILOT Leases” means those certain leases between the Company and/or its Subsidiaries and the
(i) the city of Lexington, Tennessee and (ii) the city of Chattanooga, Tennessee and the county of
Xxxxxxxx, Tennessee and/or an authority or other designee of such entities in connection with the
acquisition of new equipment and the relocation of certain existing equipment of the Company, its
Subsidiaries or its Affiliates. All of such equipment will be used at the Company’s existing facilities
located in the city of Lexington, Tennessee and the city of Chattanooga, Tennessee.
29
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including
a Pension Plan), maintained for employees of any Borrower or any ERISA Affiliate or any such Plan to
which any Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“Platform” has the meaning specified in Section 6.02.
“Pledge Agreements” means the pledge agreements, between a Loan Party and the
Administrative Agent, pursuant to which any Loan Party pledges any stock, other equity interests or
intercompany notes held by it.
“Post-Acquisition Period” means, with respect to any Material Acquisition, the period beginning
on the date such transaction is consummated and ending on the last day of the fourth full consecutive
fiscal quarter (or eighth full consecutive quarter in respect of the Specified Acquisition) immediately
following the date on which such transaction is consummated.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank, N.A. in
connection with extensions of credit to debtors).
“Pro Forma Adjustment” means, with respect to any Material Acquisition (including, for the
avoidance of doubt, the Specified Acquisition), for any period that includes all or any part of a fiscal
quarter included in any Post-Acquisition Period, the pro forma increase or decrease (for the avoidance of
doubt, net of any such increase or decrease actually realized and including any S-X Adjustments) in
Consolidated EBITDA (including the portion thereof attributable to any assets (including Equity
Interests) sold or acquired) certified by a Responsible Officer of the Company as having been determined
in good faith to be reasonably anticipated to be realized within 12 months following any such Material
Acquisition (or 24 months with respect to the Specified Acquisition) as a result of (a) actions taken or
expected to be taken during such Post-Acquisition Period for the purposes of realizing reasonably
identifiable and factually supportable cost savings or cost synergies or (b) any additional costs incurred
during such Post-Acquisition Period to achieve such cost savings, reductions and cost synergies, in each
case in connection with the combination of the operations of the assets acquired with the operations of the
Company and the Subsidiaries; provided that, so long as such actions are taken or expected to be taken
prior to or during such Post-Acquisition Period or such costs are incurred prior to or during such Post-
Acquisition Period, as applicable, the cost savings and cost synergies related to such actions or such
additional costs, as applicable, may be assumed, for purposes of projecting such pro forma increase or
decrease to such Consolidated EBITDA to be realized during the entirety, or, in the case of, additional
costs, as applicable, to be incurred during the entirety of such applicable period of determination;
provided further that any such pro forma increase or decrease to Consolidated EBITDA shall be without
duplication for cost savings, cost synergies or additional costs already included in Consolidated EBITDA
for such period of determination.
“Public Lender” has the meaning specified in Section 6.02.
“Quotation Day” means with respect to any Eurocurrency Rate Loan for any Interest Period, (i) if
the currency is Canadian Dollars or Hong Kong Dollars, the first day of such Interest Period, (ii) if the
currency is Euro, two Target Operating Days before the first day of such Interest Period, (iii) for any other
currency, two Business Days prior to the commencement of such Interest Period (unless, in each case,
market practice differs in the relevant market where the Eurocurrency Rate for such currency is to be
determined, in which case the Quotation Day will be determined by the Administrative Agent in
30
accordance with market practice in such market (and if quotations would normally be given on more than
one day, then the Quotation Day will be the last of those days)).
“Ratio Incremental Amounts” has the meaning specified in the definition of “Available Incremental
Amount.”
“Recipient” means the Administrative Agent, any Lender (including the Swingline Lender), the
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of
any Loan Party hereunder.
“Recovery Event” means any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Loan Party.
“Reference Period” means, as of any date of determination, the period of four consecutive fiscal
quarters of the Company and its Subsidiaries ending on such date, or if such date is not a fiscal quarter
end date, the period of four consecutive fiscal quarters most recently ended (in each case treated as a
single accounting period).
“Refinancing” has the meaning specified in Section 4.01(a)(xvii).
“Refunded Swingline Loans” has the meaning specified in Section 2.07.
“Register” has the meaning specified in Section 10.06(b)(iv).
“Registered Equivalent Notes” means, with respect to any bonds, notes, debentures or similar
instruments originally issued in a Rule 144A or other private placement transaction under the Securities
Act, substantially identical notes (having the same Guarantees) issued in a dollar for dollar exchange
therefor pursuant to an exchange offer registered with the SEC.
“Registered Public Accounting Firm” has the meaning specified in the Securities Laws and shall
be independent of the Company as prescribed by the Securities Laws.
“Reimbursement Obligation” means the obligation of the applicable Borrower to reimburse the
Issuing Lender pursuant to Section 3.05 for amounts drawn under Letters of Credit and Bankers’
Acceptances.
“Reinvestment Deferred Amount” means with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by the Company or any Subsidiary in connection therewith that are not
applied to prepay the Initial Term Loans pursuant to Section 2.11(b) as a result of the delivery of a
Reinvestment Notice.
“Reinvestment Event” means any Disposition or Recovery Event in respect of which the
Company has delivered a Reinvestment Notice.
“Reinvestment Notice” means a written notice executed by a Responsible Officer stating that no
Event of Default has occurred and is continuing and that the Company (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of the Net Cash Proceeds of a Disposition
or Recovery Event to acquire or repair assets (other than current assets) useful in its business.
“Reinvestment Prepayment Amount” means with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
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Reinvestment Prepayment Date to acquire or repair assets (other than current assets) useful in the
Company’s business.
“Reinvestment Prepayment Date” means with respect to any Reinvestment Event, the earlier of
(a) the date occurring 12 months after such Reinvestment Event and (b) the date on which the Company
shall have determined not to, or shall have otherwise ceased to, acquire or repair assets (other than current
assets) useful in the Company’s business with all or any portion of the relevant Reinvestment Deferred
Amount.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of
such Person and of such Person’s Affiliates.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30 day notice period has been waived.
“Repricing Transaction” means (a) any prepayment or repayment of the Initial Term Loans with
the proceeds of a concurrent incurrence of Indebtedness by the Borrowers in the form of any long-term
bank debt financing or any other financing similar to such Initial Term Loans, or any conversion of any
portion of the Initial Term Loans into any new or replacement tranche of Term Loans, in respect of which
the all-in yield is, on the date of such prepayment, lower than the all-in yield on such Initial Term Loans
(calculated by the Administrative Agent in accordance with standard market practice, taking into account,
in each case, the Eurocurrency Base Rate floor in the definition of such term herein and any interest rate
floor applicable to such financing, if applicable on such date, the Applicable Rate hereunder and the
interest rate spreads under such Indebtedness, and any original issue discount and upfront fees applicable
to or payable in respect of such Initial Term Loans and such Indebtedness (but excluding arrangement,
structuring, underwriting, commitment, amendment or other fees regardless of whether paid in whole or
in part to any or all lenders of such Indebtedness and any other fees that are not paid generally to all
lenders of such Indebtedness)) or (b) any amendment to this Agreement that reduces the effective interest
rate applicable to the Initial Term Loans. Notwithstanding the foregoing, it is understood and agreed that
any such financing transaction consummated in connection with a Change in Control, or an acquisition
that is otherwise not permitted pursuant to this Agreement, will not in any event constitute a Repricing
Transaction. For purposes of this definition, original issue discount and upfront fees shall be equated to
interest based on an assumed four-year life to maturity (or, if less, the actual life to maturity).
“Required Lenders” at any time, the holders of more than 50% of (a) until the Closing Date, the
Commitments then in effect and (b) thereafter, the sum of (i) the aggregate unpaid principal amount of the
Term Loans then outstanding and (ii) the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of Credit then
outstanding; provided that the Commitment of, and the portion of the Total Revolving Extensions of
Credit held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.
“Required Revolving Lenders” at any time, the holders of more than 50% of the sum of the Total
Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the Total
Revolving Extensions of Credit then outstanding; provided that the Commitment of, and the portion of
the Total Revolving Extensions of Credit held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Revolving Lenders.
“Responsible Officer” means the chief executive officer, president, managing director, chief
financial officer, treasurer, secretary, assistant treasurer or controller of a Loan Party, or in relation to the
32
Dutch Borrower, a managing director A and a managing director B acting jointly or any attorney of the
Dutch Borrower. Any document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership
and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means (i) any dividend or other distribution (whether in cash, securities or
other property) with respect to any capital stock or other Equity Interest of the Company or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such capital stock or other Equity Interest, or on account of any return of capital to the
Company’s stockholders, partners or members (or the equivalent Person thereof), (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of, or other equity interest in, any Loan Party or any of its Subsidiaries
now or hereafter outstanding, (iii) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of stock of, or other equity
interest in, any Loan Party or any of its Subsidiaries, (iv) any payment or prepayment of principal of, or
redemption purchase, retirement, defeasance (including economic or legal defeasance), sinking fund or
similar payment with respect to any intercompany Indebtedness owing by the Company or any
Subsidiary, (v) any voluntary principal prepayments, redemptions, retirement, defeasance, sinking funds
or similar payment with respect to the Indebtedness permitted under Section 7.03(f), and (vi) any payment
made to any Affiliates of any Loan Party or any of its Subsidiaries in respect of management, consulting
or other similar services provided to any Loan Party or any of its Subsidiaries.
“Retained Excess Cash Flow Amount” means, at any date of determination, an amount, not less
than zero, determined on a cumulative basis equal to the amount of Excess Cash Flow, for all completed
fiscal years ending after April 1, 2017 (treated as a single accounting period) for which the Excess Cash
Flow Application Date has occurred, that was not required to be applied to prepay the Loans in
accordance with Section 2.11(c).
“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a
Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each date of a
continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to
Section 2.12, and (iii) such additional dates as the Administrative Agent shall determine or the Required
Lenders shall require; and (b) with respect to any Letter of Credit or Bankers’ Acceptance, each of the
following: (i) each date of issuance of a Letter of Credit or Bankers’ Acceptance denominated in an
Alternative Currency, (ii) each date of an amendment of any such Letter of Credit or Bankers’
Acceptance having the effect of increasing the amount thereof (solely with respect to the increased
amount), (iii) each date of any payment by the Issuing Lender under any Letter of Credit or Bankers’
Acceptance denominated in an Alternative Currency, (iv) in the case of the Existing Letters of Credit and
Existing Bankers’ Acceptances, the Closing Date, and (v) such additional dates as the Administrative
Agent or the Issuing Lender shall determine or the Required Lenders shall require.
“Revolving Commitment” means, collectively as to any Lender, (a) the obligation of such
Lender, if any, to make Revolving Loans and participate in Swingline Loans and Letters of Credit in an
aggregate principal and/or face amount not to exceed the amount set forth under the heading “Revolving
Commitment” opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof and (b) any Incremental Revolving Commitments of such Lender. The
original amount of the Total Revolving Commitments is $100,000,000.
33
“Revolving Commitment Period” means the period from and including the Closing Date to the
Revolving Termination Date.
“Revolving Extensions of Credit” means as to any Revolving Lender at any time, an amount
equal to the sum of the Dollar Equivalent (a) of the aggregate principal amount of all Revolving Loans
held by such Lender then outstanding, (b) such Lender’s Revolving Percentage of the L/C-B/A
Obligations then outstanding and (c) such Lender’s Revolving Percentage of the aggregate principal
amount of Swingline Loans then outstanding.
“Revolving Lender” means each Lender that has a Revolving Commitment or that holds
Revolving Loans.
“Revolving Loans” has the meaning specified in Section 2.04(a).
“Revolving Percentage” means as to any Revolving Lender at any time, the percentage which
such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments or, at any
time after the Revolving Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding, provided, that, in the event that the
Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving Extensions of
Credit, the Revolving Percentages shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Revolving Lenders on a comparable
basis. Notwithstanding the foregoing, in the case of Section 2.23 when a Defaulting Lender shall exist,
Revolving Percentages shall be determined without regard to any Defaulting Lender’s Revolving
Commitment.
“Revolving Termination Date” means the date that is five years after the Closing Date
“Xxxxxxxx-Xxxxx” means the Xxxxxxxx-Xxxxx Act of 2002.
“Sanctioned Country” means at any time, a region, country or territory which is itself the subject
or target of any Sanctions (at the time of this Agreement, Cuba, Iran, North Korea, Sudan, Syria and the
Crimea region of Ukraine).
“Sanctioned Person” means at any time, (a) any Person listed in any Sanctions-related list of
designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the
Treasury or the U.S. Department of State or by the United Nations Security Council, the European Union
or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c)
any Person owned or controlled by any such Person or Persons.
“Sanction(s)” means economic or financial sanctions or trade embargoes imposed, administered
or enforced from time to time by (a) the U.S. government, including those administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the
United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom or
the Netherlands, provided that with respect to any Person subject to the laws of Germany only such
sanctions as imposed, administered, or enforced from time to time by the Federal Republic of Germany
shall be included.
“Screen Rate” means the LIBOR Screen Rate and the Local Screen Rates collectively and
individually as the context may require.
34
“SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) an amount
equal to (i) Total Funded Indebtedness (which shall include the L/C-B/A Obligations, other than the L/C-
B/A Obligations relating to commercial letters of credit) of the Company and its Subsidiaries outstanding
on such date and secured by Liens on the assets of the Company or any Subsidiary, less (ii) Indebtedness
in respect of Guarantees by the Company permitted under Section 7.03(k), less (iii) unrestricted cash on
hand of the Company and its Subsidiaries on such date to (b) Consolidated EBITDA for the Reference
Period ended on such date; provided, that, in the event of a Permitted Acquisition during any Reference
Period, the foregoing ratio shall be calculated on a pro forma basis as if such Acquisition had occurred on
the first day of such Reference Period, with such pro forma adjustments (i) as may be required or
permitted to be reflected in pro forma financial statements pursuant to Article 11 of Regulation S-X (“S-X
Adjustments”) or (ii) as may otherwise be reasonably satisfactory to the Administrative Agent.
“Secured Ratio Incremental Amount” has the meaning specified in the definition of “Available
Incremental Amount.”
“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934,
Xxxxxxxx-Xxxxx and the applicable accounting and auditing principles, rules, standards and practices
promulgated, approved or incorporated by the SEC or the PCAOB.
“Security Documents” means collectively, the Guarantee Agreement, the U.S. Security
Agreement, the Pledge Agreements, the Environmental Indemnity Agreement, the Intellectual Property
Security Agreements, any assignments of intercompany Indebtedness and all other security agreements,
UCC financing statements, and any other instruments or documents required by the Administrative Agent
to be executed or delivered hereunder to secure the Obligations.
“Significant Subsidiary” means any Subsidiary of the Company which accounts for more than
fifteen percent of one or more of:
(a) the book value of the consolidated assets of the Company and its Subsidiaries; or
(b) the consolidated revenues of the Company and its Subsidiaries,
all as shown in the financial statements most recently delivered under Section 6.01(a) or (b).
“Solvent” means, with respect to any Person on a particular date, that, at fair valuations, (a) the
sum of such Person’s assets is greater than (x) all of such Person’s consolidated liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities) and (y) the amount required to pay such
liabilities as they become absolute, matured or otherwise become due in the normal course of business,
(b) such Person has the ability to pay its debts and liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) as they become absolute, matured or otherwise become due in the
normal course of business and (c) such Person does not have an unreasonably small amount of capital
with which to conduct its business.
“Special Notice Currency” means at any time an Alternative Currency, other than the currency of
a country that is a member of the Organization for Economic Cooperation and Development at such time
located in North America or Europe.
“Specified Acquisition” means the acquisition of the XXXXX XX Companies pursuant to the
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Acquisition Agreement.
“Specified Equity Financing” means the sale of the Company’s common stock, par value $0.01 per
share, pursuant to the Share Purchase Agreement dated December 18, 2016 among the Company and the
purchasers party thereto.
“Specified Representations” means the representations and warranties made in Sections 5.01,
5.02 (with respect to the entering into, borrowing under, guaranteeing under, and performance of the Loan
Documents and the granting of Liens in the Collateral), 5.04, 5.14, 5.16, 5.19, 5.21, 5.23, 5.24 and 5.26 of
this Agreement and Section 3.2 of the U.S. Security Agreement.
“Specified Time” means (i) in relation to a Loan in Canadian Dollars, as of 11:00 a.m. Toronto,
Ontario time and (ii) in relation to a Loan in Hong Kong Dollars, as of 11:30 a.m., Hong Kong time.
“Spot Rate” for a currency means the rate determined by the Administrative Agent or the Issuing
Lender, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the
purchase by such Person of such currency with another currency through its principal foreign exchange
trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the
foreign exchange computation is made; provided that the Administrative Agent or the Issuing Lender may
obtain such spot rate from another financial institution designated by the Administrative Agent or the
Issuing Lender if the Person acting in such capacity does not have as of the date of determination a spot
buying rate for any such currency; and provided further that the Issuing Lender may use such spot rate
quoted on the date as of which the foreign exchange computation is made in the case of any Letter of
Credit or Bankers’ Acceptance denominated in an Alternative Currency.
“XXXXX XX Companies” means, collectively, XXXXX CraneSystems GmbH, a private company
organized under the laws of Germany, and the XXXXX XX Affiliates (as such term is defined in the
Acquisition Agreement).
“Sterling” and “£” mean the lawful currency of the United Kingdom.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of securities or other interests having
ordinary voting power for the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a
“Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.
“Swap Contract” 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
36
agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a)
for any date on or after the date such Swap Contracts 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 xxxx-to-market value(s) for such Swap
Contracts, as determined based upon one or more mid-market or other readily available quotations
provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate
of a Lender).
“Swingline Commitment” means the obligation of the Swingline Lender to make Swingline
Loans pursuant to Section 2.06 in an aggregate principal amount at any one time outstanding not to
exceed $10,000,000. For the avoidance of doubt, Swingline Loans shall be denominated in Dollars.
“Swingline Exposure” means at any time, the sum of the aggregate amount of all outstanding
Swingline Loans at such time. The Swingline Exposure of any Revolving Lender at any time shall be the
sum of (a) its Revolving Percentage of the total Swingline Exposure at such time related to Swingline
Loans other than any Swingline Loans made by such Lender in its capacity as a Swingline Lender and (b)
if such Lender shall be a Swingline Lender, the principal amount of all Swingline Loans made by such
Lender outstanding at such time (to the extent that the other Revolving Lenders shall not have funded
their participations in such Swingline Loans).
“Swingline Lender” means JPMorgan Chase Bank, N.A.
“Swingline Loans” has the meaning specified in Section 2.06.
“Swingline Participation Amount” has the meaning specified in Section 2.07(c).
“Swiss Franc” means the lawful currency of Switzerland.
“S-X Adjustments” has the meaning specified in the definition of “Secured Leverage Ratio.”
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called
synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of
property creating obligations that do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).
“Target Operating Day” means any day that is not (a) a Saturday or Sunday, (b) Christmas Day or
New Year’s Day, (c) any day banks are otherwise not open for dealings in deposits in Euro in the London
interbank market or (d) any other day on which the Trans-European Real-Time Gross Settlement
Operating System (or any successor settlement system) is not operating (as determined in good faith by
the Administrative Agent).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
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“Term Lenders means the collective reference to the Initial Term Lenders and the Incremental
Term Lenders.
“Term Commitment” means, collectively as to any Lender, (a) the Initial Term
Commitment and (b) any Incremental Term Commitment of such Lender.
“Term Loans” means, collectively, the Initial Term Loans, and, unless context requires, any
Incremental Term Loans.
“Threshold Amount” means $12,000,000.
“Total Funded Indebtedness” means, with respect to the Company and its Subsidiaries, the sum,
without duplication, of (a) the aggregate amount of Indebtedness of the Company and its Subsidiaries
determined on a consolidated basis in accordance with GAAP, relating to (i) the borrowing of money or
the obtaining of credit, including the issuance of notes or bonds, (ii) the deferred purchase price of assets
(other than trade payables incurred in the ordinary course of business), (iii) in respect of any Synthetic
Lease Obligations or any Capital Lease Obligations, and (iv) the maximum drawing amount of all standby
letters of credit outstanding and the maximum stated amount of all bankers’ acceptances outstanding, plus
(b) Indebtedness of the type referred to in clause (a) of another Person guaranteed by the Company or any
of its Subsidiaries. For the avoidance of doubt, net obligations of the Company and its Subsidiaries under
any Swap Contract shall not constitute Total Funded Indebtedness.
“Total Leverage Ratio” means, as of any date of determination, the ratio of (a) an amount equal to
(i) Total Funded Indebtedness (which shall include the L/C-B/A Obligations, other than the L/C-B/A
Obligations relating to commercial letters of credit) of the Company and its Subsidiaries outstanding on
such date, less (ii) Indebtedness in respect of Guarantees by the Company permitted under Section
7.03(k), less (iii) unrestricted cash on hand of the Company and its Subsidiaries on such date to (b)
Consolidated EBITDA for the Reference Period ended on such date; provided, that, in the event of a
Permitted Acquisition made during any Reference Period, the foregoing ratio shall be calculated on a pro
forma basis as if such Permitted Acquisition had occurred on the first day of such Reference Period, with
such pro forma adjustments (i) constituting S-X Adjustments or (ii) as may otherwise be reasonably
satisfactory to the Administrative Agent.
“Total Revolving Commitments” means at any time, the aggregate amount of the Revolving
Commitments (including Incremental Revolving Commitments) then in effect.
“Total Revolving Extensions of Credit” means at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.
“Transaction Costs” means all premiums, fees, costs and expenses incurred or payable by or on
behalf of the Company, the Borrowers or any Subsidiary in connection with the Transactions (including,
without limitation, any prepayment premiums, bonuses, foreign currency hedging costs incurred in
connection with the consideration for the Transactions and any loan forgiveness and associated tax gross
up payments and fees) or in connection with the negotiation, execution, delivery and performance of the
Loan Documents and the transactions contemplated thereby, including to fund any original issue discount,
upfront fees or legal fees and to grant and perfect any security interests.
“Transactions” means (a) the borrowing of the Loans hereunder on the Closing Date, (b) the
Refinancing, (c) the Specified Acquisition and (d) the payment of Transaction Costs.
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“Trademark Agreement” means any grant of security interest in trademarks owned by any Loan
Party, made by any Loan Party in favor of the Administrative Agent, or any of its predecessors.
“Type” means, with respect to a Revolving Loan, its character as a Base Rate Loan, a
Eurocurrency Rate Loan, a CDOR Rate Loan or a HIBOR Rate Loan.
“UCC” means the Uniform Commercial Code as in effect in the State of New York; provided
that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State
of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-
perfection or priority.
“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for
Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later
version thereof as may be in effect at the time of issuance).
“United States” and “U.S.” mean the United States of America.
“Unsecured Ratio Incremental Amount” has the meaning specified in the definition of “Available
Incremental Amount.”
“U.S. Person” means any Person that is a “United States Person” as defined in Section
7701(a)(30) of the Code.
“U.S. Security Agreement” means that certain U.S. Security Agreement, dated the date hereof,
from the Company and certain Subsidiaries to the Administrative Agent, as amended, modified and/or
restated from time to time.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 2.19(f)(iii).
“Write-Down and Conversion Powers” means, 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.
“Yale” means Yale Industrial Products, Inc.
“Yen” and “¥” mean the lawful currency of Japan.
1.02. Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have
the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any Organization
Document) shall be construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any restrictions on such
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amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any
reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii)
the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any
Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the
Loan Document in which such references appear, (v) any reference to any law shall include all statutory
and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (vi) 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, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;”
and the word “through” means “to and including.”
(c) Section headings herein and in the other Loan Documents are included for convenience
of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(d) All references herein to the Company, the Borrowers and their Subsidiaries shall be
deemed to be references to such Persons, and all the representations and warranties of the Company, the
Borrowers and the other Loan Parties contained in this Agreement and the other Loan Documents shall
be deemed made, in each case, after giving effect to the Specified Acquisition and the other
Transactions to occur on the Closing Date, unless the context otherwise requires.
1.03. Accounting Terms. (a) Generally. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data (including financial ratios and
other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner
consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically
prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any
covenant (including the computation of any financial covenant) contained herein, Indebtedness of the
Borrowers and their Subsidiaries shall be deemed to be carried at the lesser of (x) 100% of the
outstanding principal amount thereof and (y) the then-applicable accreted value thereof, and the effects of
FASB ASC 825 and FASB ASC 470-2064 on financial liabilities shall be disregarded.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Company or the
Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light
of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders
financial statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall continue
to be classified and accounted for on a basis consistent with that reflected in the Audited Financial
Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto,
unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as
provided for above.
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1.04. Rounding. Any financial ratios required to be maintained by the Borrowers pursuant to
this Agreement shall be calculated by dividing the appropriate component by the other component,
carrying the result to one place more than the number of places by which such ratio is expressed herein
and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest
number).
1.05. Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of each Revaluation Date
to be used for calculating Dollar Equivalent amounts of Revolving Extensions of Credit and Total
Revolving Extensions of Credit denominated in Alternative Currencies. Such Spot Rates shall become
effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts
between the applicable currencies until the next Revaluation Date to occur. Except for purposes of
financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder
or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for
purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the
Administrative Agent.
(b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation
or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of
Credit or Bankers’ Acceptance, an amount, such as a required minimum or multiple amount, is
expressed in Dollars, but such Borrowing, Eurocurrency Rate Loan or Letter of Credit or Bankers’
Acceptance is denominated in an Alternative Currency, such amount shall be the relevant Alternative
Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency,
with 0.5 of a unit being rounded upward), as determined by the Administrative Agent.
1.06. Additional Alternative Currencies.
(a) The Company may from time to time request that Eurocurrency Rate Loans be made
and/or Letters of Credit or Bankers’ Acceptances be issued in a currency other than those specifically
listed in the definition of “Alternative Currency;” provided that such requested currency is a lawful
currency (other than Dollars) that is readily available and freely transferable and convertible into
Dollars. In the case of any such request with respect to the making of Eurocurrency Rate Loans, such
request shall be subject to the approval of the Administrative Agent and the Lenders; and in the case of
any such request with respect to the issuance of Letters of Credit or Bankers’ Acceptances, such request
shall be subject to the approval of the Administrative Agent and the applicable Issuing Lender.
(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m.,
15 Business Days prior to the date of the desired Revolving Extensions of Credit (or such other time or
date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to
Letters of Credit or Bankers’ Acceptances, the applicable Issuing Lender, in its or their sole discretion).
In the case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall
promptly notify each Lender thereof; and in the case of any such request pertaining to Letters of Credit
or Bankers’ Acceptances, the Administrative Agent shall promptly notify the applicable Issuing Lender
thereof. Each Lender (in the case of any such request pertaining to Eurocurrency Rate Loans) or the
applicable Issuing Lender (in the case of a request pertaining to Letters of Credit or Bankers’
Acceptances) shall notify the Administrative Agent, not later than 11:00 a.m., 13 Business Days after
receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate
Loans or the issuance of Letters of Credit or Bankers’ Acceptances, as the case may be, in such
requested currency.
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(c) Any failure by a Lender or the applicable Issuing Lender, as the case may be, to
respond to such request within the time period specified in the preceding sentence shall be deemed to be
a refusal by such Lender or the applicable Issuing Lender, as the case may be, to permit Eurocurrency
Rate Loans to be made or Letters of Credit or Bankers’ Acceptances to be issued in such requested
currency. If the Administrative Agent and all the Lenders consent to making Eurocurrency Rate Loans
in such requested currency, the Administrative Agent shall so notify the Company and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any
Borrowings of Eurocurrency Rate Loans; and if the Administrative Agent and the applicable Issuing
Lender consent to the issuance of Letters of Credit or Bankers’ Acceptances in such requested currency,
the Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for
all purposes to be an Alternative Currency hereunder for purposes of any Letter of Credit or Bankers’
Acceptance issuances. If the Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section 1.06, the Administrative Agent shall promptly so notify the
Company. Any specified currency of an Existing Letter of Credit or Existing Bankers’ Acceptance that
is neither Dollars nor one of the Alternative Currencies specifically listed in the definition of
“Alternative Currency” shall be deemed an Alternative Currency with respect to such Existing Letter of
Credit or Existing Bankers’ Acceptance only.
1.07. Change of Currency.
(a) Each obligation of the Borrowers to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro as its lawful currency
after the Closing Date shall be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual
of interest expressed in this Agreement in respect of that currency shall be inconsistent with any
convention or practice in the London interbank market for the basis of accrual of interest in respect of
the Euro, such expressed basis shall be replaced by such convention or practice with effect from the
date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing
in the currency of such member state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect the
adoption of the Euro by any member state of the European Union and any relevant market conventions
or practices relating to the Euro.
(c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect a
change in currency of any other country and any relevant market conventions or practices relating to the
change in currency.
1.08. Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time in the United States (daylight or standard, as applicable).
1.09. Letter of Credit or Bankers’ Acceptance Amounts. Unless otherwise specified herein,
the amount of a Letter of Credit or Bankers’ Acceptance at any time shall be deemed to be the Dollar
Equivalent of the stated amount of such Letter of Credit or Bankers’ Acceptance in effect at such time;
provided, however, that with respect to any Letter of Credit or Bankers’ Acceptance that, by its terms,
provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of
Credit or Bankers’ Acceptance shall be deemed to be the Dollar Equivalent of the maximum stated
42
amount of such Letter of Credit or Bankers’ Acceptance after giving effect to all such increases, whether
or not such maximum stated amount is in effect at such time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01. Term Loans. Subject to the terms and conditions hereof, each Initial Term Lender
severally agrees to make a term loan (an “Initial Term Loan”) in Dollars to the Company on the Closing
Date in a principal amount not to exceed its Initial Term Commitment. The Initial Term Commitments
will terminate in full upon the making of the Loans referred to in this Section 2.01.
2.02. Procedure for Term Loan Borrowing. The Company shall give the Administrative
Agent irrevocable notice (which notice must be received by the Administrative Agent (i) in the case of a
Base Rate Loan, prior to 10:00 A.M., New York City time, one Business Day prior to the anticipated
Borrowing Date or (ii) in the case of a Eurocurrency Rate Loan, prior to 12:00 noon, New York City time,
three Business Days prior to the anticipated Borrowing Date) requesting that the Term Lenders make the
Term Loans on the Borrowing Date and in the amount specified in such notice. Upon receipt of such
notice the Administrative Agent shall promptly notify each Term Lender thereof. Not later than 12:00
noon, New York City time, on the requested Borrowing Date, each Term Lender shall make available to
the Administrative Agent at the Lending Office an amount in immediately available funds equal to the
Term Loan or Term Loans to be made by such Lender. The Administrative Agent shall credit the account
of the Company on the books of such office of the Administrative Agent with the aggregate of the
amounts made available to the Administrative Agent by the Term Lenders in immediately available
funds.
2.03. Repayment of Term Loans. The Initial Term Loans made by each Initial Term Lender
shall mature in consecutive quarterly installments on each March 31, June 30, September 30 and
December 31, beginning on the last day of the first full fiscal quarter of the Company following the
Closing Date, each of which shall be in an amount equal to 0.25% of such Initial Term Loan Lender’s
Initial Term Percentage of the aggregate amount of Initial Term Loans, with the balance of the Initial
Term Loans being payable on the Initial Term Loan Maturity Date.
2.04. Revolving Commitments. (a) Subject to the terms and conditions hereof, each
Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”), in Dollars or in
any Alternative Currency, to the Borrowers or any Designated Borrower, if applicable, from time to time
during the Revolving Commitment Period; provided, however, that after giving effect to any Revolving
Loan, (i) Total Revolving Extensions of Credit shall not exceed the Revolving Commitments, (ii) the
Revolving Extensions of Credit of any Lender, plus the Dollar Equivalent of such Lender’s L/C-B/A
Exposure then outstanding, plus such Lender’s Swingline Exposure then outstanding shall not exceed
such Lender’s Revolving Commitment, (iii) Total Revolving Extensions of Credit denominated in
Alternative Currencies shall not exceed the Alternative Currency Sublimit and (iv) Total Revolving
Extensions of Credit to Foreign Borrowers shall not exceed the Foreign Borrower Sublimit. During the
Revolving Commitment Period the Company or any Designated Borrower, if applicable, may use the
Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from
time to time be Eurocurrency Rate Loans, CDOR Rate Loans, HIBOR Rate Loans, or Base Rate Loans,
as determined by the Company or any Designated Borrower and notified to the Administrative Agent in
accordance with Sections 2.05 and 2.12.
(b) Each Borrower or any Designated Borrower, if applicable, shall repay all the
outstanding Revolving Loans extended to it on the Revolving Termination Date.
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2.05. Procedure for Revolving Loan Borrowing. Each Borrower may borrow under the
Revolving Commitments during the Revolving Commitment Period on any Business Day, provided that
the applicable Borrower shall give the Administrative Agent irrevocable notice prior to (a) 12:00 noon,
New York City time, three Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Loans are to be Eurocurrency Rate Loans denominated in Dollars, (b) 11:00 A.M.,
London Time, four Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Loans are to be Eurocurrency Rate Loans denominated in Alternative Currencies
(other than Special Notice Currencies), (c) 11:00 A.M., London Time, five Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Loans are to be Eurocurrency
Rate Loans denominated in a Special Notice Currency or (d) 12:00 noon, New York City time, on the
requested Borrowing Date, with respect to Base Rate Loans (provided that any such notice of a borrowing
of Base Rate Loans under the Revolving Facility to finance payments required by Section 3.05 may be
given not later than 10:00 A.M., New York City time, on the date of the proposed borrowing), specifying
(i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing Date, (iii) in
the case of Eurocurrency Rate Loans, CDOR Rate Loans or HIBOR Rate Loans, the respective amounts
of each such Type of Loan and the respective lengths of the initial Interest Period therefor, (iv) the
currency of the Revolving Loans to be borrowed, and (v) if applicable, the Designated Borrower. If the
Company fails to specify a currency in such notice, then the Revolving Loans so requested shall be
denominated in Dollars. Each borrowing under the Revolving Commitments shall be in an amount equal
to (x) in the case of Base Rate Loans, $500,000 or a whole multiple of $100,000 in excess thereof (or, if
the then aggregate Available Revolving Commitments are less than $500,000, such lesser amount) and (y)
in the case of Eurocurrency Rate Loans, CDOR Rate Loans and HIBOR Rate Loans, $2,000,000 or a
whole multiple of $500,000 in excess thereof (or the Dollar Equivalent thereof with respect to Loans in
any Alternative Currency); provided, that the Swingline Lender may request, on behalf of the Borrower,
borrowings under the Revolving Commitments that are Base Rate Loans in other amounts pursuant to
Section 2.07. Upon receipt of any such notice from the applicable Borrower, the Administrative Agent
shall promptly notify each Revolving Lender thereof. Each Revolving Lender will make the amount of
its pro rata share of each borrowing available to the Administrative Agent for the account of such
Borrower at the Funding Office or any Applicable Payment Office (in the case of a Loan denominated in
an Alternative Currency) prior to (i) 11:00 A.M., New York City time in the case of Eurocurrency Rate
Loans denominated in Dollars, (ii) 12:00 noon, London Time in the case of each Eurocurrency Rate Loan
denominated in an Alternative Currency (other than Swiss Francs) and 8:00 A.M., London Time in the
case of each Eurocurrency Rate Loan denominated in Swiss Francs and (iii) 2:00 P.M., New York City
time in the case of Base Rate Loans, on the Borrowing Date requested by such Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be made available to the
applicable Borrower by the Administrative Agent crediting the account of the applicable Borrower on the
books of such office with the aggregate of the amounts made available to the Administrative Agent by the
Revolving Lenders and in like funds as received by the Administrative Agent.
2.06. Swingline Commitment. (a) Subject to the terms and conditions hereof, from time to
time during the Revolving Commitment Period, the Swingline Lender may at its sole discretion make a
portion of the credit otherwise available to the Borrowers under the Revolving Commitments by making
swing line loans (“Swingline Loans”) to the Company provided that (i) the sum of (x) the Swingline
Exposure of the Swingline Lender (in its capacity as Swingline Lender and a Revolving Lender), (y) the
Dollar Equivalent of the aggregate principal amount of outstanding Revolving Loans made by the
Swingline Lender (in its capacity as a Revolving Lender) and (z) the Dollar Equivalent of the L/C-B/A
Exposure of the Swingline Lender (in its capacity as a Revolving Lender) shall not exceed its Revolving
Commitment then in effect, (ii) the sum of the outstanding Swingline Loans shall not exceed the
Swingline Commitment, (iii) the applicable Borrower shall not request, and the Swingline Lender shall
not make, any Swingline Loan if, after giving effect to the making of such Swingline Loan, the aggregate
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amount of the Available Revolving Commitments would be less than zero, and (iv) Total Revolving
Extensions of Credit to Foreign Borrowers shall not exceed the Foreign Borrower Sublimit. During the
Revolving Commitment Period, the Company may use the Swingline Commitment by borrowing,
repaying and reborrowing, all in accordance with the terms and conditions hereof. Swingline Loans shall
be Base Rate Loans only denominated in Dollars.
(b) The Company shall repay to the Swingline Lender the then unpaid principal amount of
each Swingline Loan on the earlier of the Revolving Termination Date and five Business Days after
such Swingline Loan is made; provided that on each date that a Revolving Loan is borrowed, the
Company shall repay all Swingline Loans then outstanding and the proceeds of any such Revolving
Loans shall be applied by the Administrative Agent to repay any Swingline Loans outstanding.
2.07. Procedure for Swingline Borrowing; Refunding of Swingline Loans. (a) Whenever
the Company desires that the Swingline Lender make Swingline Loans it shall give the Swingline Lender
irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by
the Swingline Lender not later than 1:00 P.M., New York City time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date (which shall be a
Business Day during the Revolving Commitment Period). Each borrowing under the Swingline
Commitment shall be in an amount equal to $100,000 or a whole multiple of $100,000 in excess thereof.
Not later than 3:00 P.M., New York City time, on the Borrowing Date specified in a notice in respect of
Swingline Loans, the Swingline Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the amount of the Swingline Loan to be made
by the Swingline Lender. The Administrative Agent shall make the proceeds of such Swingline Loans
available to the Company on such Borrowing Date by depositing such proceeds in the account of the
Company with the Administrative Agent on such Borrowing Date in immediately available funds.
(b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Company (which hereby irrevocably directs the Swingline Lender to
act on its behalf), on one Business Day’s notice given by the Swingline Lender no later than 12:00
Noon, New York City time, request each Revolving Lender to make, and each Revolving Lender
hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving Lender’s Revolving
Percentage of the aggregate amount of the Swingline Loans (the “Refunded Swingline Loans”)
outstanding on the date of such notice, to repay the Swingline Lender. Each Revolving Lender shall
make the amount of such Revolving Loan available to the Administrative Agent at the Funding Office
in immediately available funds, not later than 10:00 A.M., New York City time, one Business Day after
the date of such notice. The proceeds of such Revolving Loans shall be immediately made available by
the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the
repayment of the Refunded Swingline Loans. The Company irrevocably authorizes the Swingline
Lender to charge the Company’s accounts with the Administrative Agent (up to the amount available in
each such account) in order to immediately pay the amount of such Refunded Swingline Loans to the
extent amounts received from the Revolving Lenders are not sufficient to repay in full such Refunded
Swingline Loans.
(c) If prior to the time a Revolving Loan would have otherwise been made pursuant to
Section 2.07(b), one of the events described in Section 8.01(f) shall have occurred and be continuing
with respect to the Company or if for any other reason, as determined by the Swingline Lender in its
sole discretion, Revolving Loans may not be made as contemplated by Section 2.07(b), each Revolving
Lender shall, on the date such Revolving Loan was to have been made pursuant to the notice referred to
in Section 2.07(b), purchase for cash an undivided participating interest in the then outstanding
Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”)
equal to (i) such Revolving Lender’s Revolving Percentage times (ii) the sum of the aggregate principal
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amount of Swingline Loans of the Swingline Lender then outstanding that were to have been repaid
with such Revolving Loans.
(d) Whenever, at any time after the Swingline Lender has received from any Revolving
Lender such Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on
account of the Swingline Loans, the Swingline Lender will distribute to such Lender its ratable portion
of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such
payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided,
however, that in the event that such payment received by the Swingline Lender is required to be
returned, such Revolving Lender will return to the Swingline Lender any portion thereof previously
distributed to it by the Swingline Lender.
(e) Each Revolving Lender’s obligation to make the Loans referred to in Section 2.07(b)
and to purchase participating interests pursuant to Section 2.07(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment,
defense or other right that such Revolving Lender or the Company may have against the Swingline
Lender, the Company or any other Person for any reason whatsoever, (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in
Article IV, (iii) any adverse change in the condition (financial or otherwise) of the Company, (iv) any
breach of this Agreement or any other Loan Document by the Company, any other Loan Party or any
other Revolving Lender or (v) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
2.08. Commitment Fees, etc. (a) The Company agrees to pay to the Administrative Agent for
the account of each Revolving Lender a commitment fee for the period from and including the date hereof
to the last day of the Revolving Commitment Period, computed at the Commitment Fee Rate on the
average daily amount of the Available Revolving Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on each Fee Payment Date in Dollars, commencing
on the first such date to occur after the date hereof.
(b) The Company agrees to pay to the Administrative Agent and the Joint Lead Arrangers
the fees in the amounts and on the dates as set forth in any fee agreements with the Administrative
Agent and the Joint Lead Arrangers and to perform any other obligations contained therein.
2.09. Termination or Reduction of Revolving Commitments. The Company shall have the
right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments;
provided that no such termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans and Swingline Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving
Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Commitments then in effect.
2.10. Optional Prepayments. (a) Each Borrower may at any time and from time to time
prepay the Loans, in whole or in part, without premium or penalty other than as set forth in Section
2.10(b), upon irrevocable notice delivered to the Administrative Agent no later than 11:00 A.M., New
York City time, three Business Days prior thereto, in the case of Eurocurrency Rate Loans, and no later
than 11:00 A.M., New York City time, one Business Day prior thereto, in the case of Base Rate Loans,
which notice shall specify the date and amount of prepayment and whether the prepayment is of
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Eurocurrency Rate Loans or Base Rate Loans; provided, that if a Eurocurrency Rate Loan, CDOR Rate
Loan or HIBOR Rate Loan is prepaid on any day other than the last day of the Interest Period applicable
thereto, such Borrower shall also pay any amounts owing pursuant to Section 2.20. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Revolving Loans that are Base Rate Loans and Swingline Loans)
accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and Revolving
Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple thereof. Partial
prepayments of Swingline Loans shall be in an aggregate principal amount of $100,000 or a whole
multiple thereof.
(b) In the event that, on or prior to the twelve month anniversary of the Closing Date, any
Borrower (i) makes any prepayment of Initial Term Loans in connection with any Repricing Transaction
or (ii) effects any amendment of this Agreement resulting in a Repricing Transaction, the Company shall
pay to the Administrative Agent, for the ratable account of each of the applicable Initial Term Lenders,
(x) in the case of clause (i), a prepayment premium of 1% of the principal amount of the Initial Term
Loans being prepaid in connection with such Repricing Transaction and (y) in the case of clause (ii), an
amount equal to 1% of the aggregate amount of the applicable Initial Term Loans outstanding
immediately prior to such amendment. Such amounts shall be due and payable on the date of
effectiveness of such Repricing Transaction.
2.11. Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall
be incurred by the Company or any Subsidiary (excluding any Indebtedness incurred in accordance with
Section 7.03), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of
such incurrence toward the prepayment of the Term Loans.
(b) If on any date the Company or any Subsidiary shall receive Net Cash Proceeds from
any single Disposition or Recovery Event, or series of related Disposition or Recovery Events,
exceeding $10,000,000 in the aggregate, then, unless a Reinvestment Notice shall be delivered in
respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the
Term Loans; provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the prepayment of the Term Loans.
(c) If, for any fiscal year of the Company commencing with the fiscal year ending March
31, 2018 there shall be Excess Cash Flow, on the relevant Excess Cash Flow Application Date (defined
below), an amount, equal to (x) the ECF Percentage of such Excess Cash Flow for such fiscal year
minus (y) optional prepayment of the Loans (except prepayments of Revolving Loans that are not
accompanied by a corresponding permanent reduction of Revolving Commitments) pursuant to Section
2.10(a) other than to the extent that any such prepayment is funded with the proceeds of Funded Debt,
shall be applied toward the prepayment of the Term Loans as set forth in Section 2.11(d). Each such
prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days
after the earlier of (i) the date on which the financial statements of the Company referred to in Section
6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to
the Lenders and (ii) the date such financial statements are actually delivered.
(d) The application of any prepayment pursuant to Section 2.11 shall be made, first, to
Base Rate Loans and, second, to Eurocurrency Rate Loans. Each prepayment of the Loans under
Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
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2.12. Continuation Options.
(a) Each Borrower may elect from time to time to convert Eurocurrency Rate Loans
denominated in Dollars to Base Rate Loans by giving the Administrative Agent prior irrevocable notice
of such election no later than 11:00 A.M., New York City time, on the Business Day preceding the
proposed conversion date. Each Borrower may elect from time to time to convert Base Rate Loans to
Eurocurrency Rate Loans denominated in Dollars by giving the Administrative Agent prior irrevocable
notice of such election no later than 11:00 A.M., New York City time, on the third Business Day
preceding the proposed conversion date, provided that no Base Rate Loan under a particular Facility
may be converted into a Eurocurrency Rate Loan denominated in Dollars when any Event of Default
has occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect
of such Facility have determined in its or their sole discretion not to permit such conversions. Upon
receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.
(b) Any Eurocurrency Rate Loan, CDOR Rate Loan or HIBOR Rate Loan may be
continued as such upon the expiration of the then current Interest Period with respect thereto by a
Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable
provisions of the term “Interest Period” set forth in Section 1.01, of the length of the next Interest
Period to be applicable to such Loans, provided that no Eurocurrency Rate Loan, CDOR Rate Loan or
HIBOR Rate Loan under a particular Facility may be continued as such (i) when any Event of Default
has occurred and is continuing and the Administrative Agent has or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to permit such continuations
or (ii) if an Event of Default specified in Section 8.01(f) with respect to any Loan Party is in existence,
and provided, further, that if the Company shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest
Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
2.13. Limitations on Eurocurrency Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings and continuations of Eurocurrency Rate Loans and all selections of
Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of the Eurocurrency Rate Loans comprising each
Eurocurrency Tranche shall be equal to $2,000,000 or a whole multiple of $500,000 in excess thereof (or
the Dollar Equivalent thereof with respect to Loans in any Alternative Currency) and (b) no more than
twelve Eurocurrency Tranches shall be outstanding at any one time.
2.14. Interest Rates and Payment Dates.
(a) Each Eurocurrency Rate Loan, CDOR Rate Loan and HIBOR Rate Loan shall bear
interest for each day during each Interest Period with respect thereto at a rate per annum equal to the
Eurocurrency Rate, CDOR Rate or HIBOR Rate, as applicable, determined for such day plus the
Applicable Rate for the relevant Facility.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal to the Base Rate plus
the Applicable Rate for the relevant Facility.
(c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to (x) in the case of the Loans, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2%, (y) in the
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case of Reimbursement Obligations payable in Dollars, the rate applicable to Base Rate Loans, pursuant
to the foregoing provisions of this Section, made under the Revolving Facility plus 2%, or (z) in the
case of Reimbursement Obligations payable in Alternative Currencies, the rate applicable to Loans
made in such Alternative Currency, pursuant to the foregoing provisions of this Section, made under the
Revolving Facility plus 2% and (ii) if all or a portion of any interest payable on any Loan or
Reimbursement Obligation or any commitment fee or other amount payable hereunder shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount (x) in the
case of interest on Base Rate Loans, Reimbursement Obligations or other amount payable in Dollars,
shall bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans under the
relevant Facility plus 2% (or, in the case of any such other amounts that do not relate to a particular
Facility, the rate then applicable to Base Rate Loans under the Revolving Facility plus 2%) or (y) in the
case of interest on Eurocurrency Rate Loans, CDOR Rate Loans or HIBOR Rate Loans, and
Reimbursement Obligations or other amount payable in Alternative Currencies, shall bear interest at a
rate per annum equal to the rate otherwise applicable Loans made in such Alternative Currency under
the relevant Facility plus 2% (or, in the case of any such other amounts that do not relate to a particular
Facility, the rate then applicable to Loans made in such Alternative Currency under the Revolving
Facility plus 2%), in each case, with respect to clauses (i) and (ii) above, from the date of such non-
payment until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date, provided that interest
accruing pursuant to paragraph (c) of this Section shall be payable from time to time on demand.
2.15. Computation of Interest and Fees.
(a) (i) Whenever interest and fees are calculated on the basis of the Prime Rate, interest
shall be calculated on the basis of a 365 (or 366, as the case may be) day year for the actual days
elapsed, (ii) whenever Eurocurrency Rate Loans are denominated in Sterling, interest and fees with
respect to such Eurocurrency Rate Loans shall be calculated on the basis of a 365-day year for the
actual days elapsed and (iii) whenever CDOR Rate Loans are denominated in Canadian Dollars or
HIBOR Rate Loans are denominated in Hong Kong Dollars, interest and fees with respect to such
Loans shall be calculated on the basis of a 365-day year for the actual days elapsed; and, otherwise,
interest and fees shall be calculated on the basis of a 360-day year for the actual days elapsed
(including, with respect to Eurocurrency Rate Loans denominated in Dollars, Euros, Swiss Francs, and
Yen). The Administrative Agent shall as soon as practicable notify the applicable Borrower and the
relevant Lenders of each determination of a Eurocurrency Base Rate. Any change in the interest rate on
a Loan resulting from a change in the Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change becomes effective.
The Administrative Agent shall as soon as practicable notify the applicable Borrower and the relevant
Lenders of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the applicable Borrower and the
Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the
applicable Borrower, deliver to the applicable Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section 2.14(a).
2.16. Inability to Determine Interest Rate. If prior to the first day of any Interest Period, (i)
the Administrative Agent shall have determined (which determination shall be conclusive and binding
absent manifest error) that adequate and reasonable means (including, without limitation, by means of an
Interpolated Rate) do not exist for ascertaining the Eurocurrency Base Rate or the Eurocurrency Rate, as
applicable, for such Interest Period, or (ii) the Administrative Agent shall have received notice from the
49
Majority Facility Lenders in respect of the relevant Facility that the Eurocurrency Base Rate or the
Eurocurrency Rate, as applicable, determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of
making or maintaining their affected Loans during such Interest Period, the Administrative Agent shall
give telecopy or telephonic notice thereof to the applicable Borrower and the relevant Lenders as soon as
practicable thereafter. If such notice is given (v) any outstanding request for a Borrowing in an
Alternative Currency shall not be effective, (w) any Eurocurrency Rate Loans (excluding Eurocurrency
Rate Loans denominated in Alternative Currencies) under the relevant Facility requested to be made on
the first day of such Interest Period shall be made as Base Rate Loans, (x) any Loans under the relevant
Facility that were to have been converted on the first day of such Interest Period to Eurocurrency Rate
Loans shall be continued as Base Rate Loans, (y) any outstanding Eurocurrency Rate Loans under the
relevant Facility shall be converted, on the last day of the then-current Interest Period, to Base Rate Loans
and (z) any Eurocurrency Rate Loan denominated in an Alternative Currency to which such Interest
Period relates shall be repaid on the first day of such Interest Period. Until such notice has been
withdrawn by the Administrative Agent, no further Eurocurrency Rate Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrowers have the right to convert Loans under the
relevant Facility to Eurocurrency Rate Loans.
2.17. Pro Rata Treatment and Payments.
(a) Each borrowing by any Borrower from the Lenders hereunder, each payment by such
Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Initial Term Percentages or Revolving Percentages,
as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Company on account of principal of
and interest on the Term Loans shall be made pro rata according to the respective outstanding principal
amounts of the Term Loans then held by the Term Lenders. The amount of each mandatory principal
prepayment of the Term Loans shall be applied, first, to reduce the then remaining installments of the
Initial Term Loans and Incremental Term Loans, as the case may be, occurring within the next 12
months, in direct order of maturity, and second, to reduce the remaining respective installments thereof,
in each case pro rata based upon the respective then remaining principal amounts thereof. Amounts
prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the applicable Borrower on account of
principal of and interest on the Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by a Borrower hereunder in respect
of amounts denominated in Dollars, whether on account of principal, interest, fees or otherwise, shall be
made without setoff or counterclaim and shall be made prior to 12:00 Noon, New York City time, on
the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office,
in Dollars and in immediately available funds. All payments (including prepayments to be made by a
Borrower hereunder with respect to principal and interest on Revolving Loans denominated in
Alternative Currencies shall be made without set off or counterclaim and shall be made prior to 12:00
noon, Local Time (or, with respect to any Revolving Loan denominated in Swiss Francs, 8:00 A.M.,
Local Time), on the due date thereof to the Administrative agent, for the account of the Lenders, in the
city of the Administrative Agent’s Applicable Payment Office for the applicable currency, in the
Alternative Currency with respect to which such Revolving Loan is denominated and in immediately
available funds. The Administrative Agent shall distribute such payments to each relevant Lender
promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to
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Section 9.07. If any payment hereunder (other than payments on the Eurocurrency Rate Loans)
becomes due and payable on a day other than a Business Day, such payment shall be extended to the
next succeeding Business Day. If any payment on a Eurocurrency Rate Loan becomes due and payable
on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately preceding Business
Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences,
interest thereon shall be payable at the then applicable rate during such extension.
(e) Unless the Administrative Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the relevant Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount
with interest thereon, (A) in the case of amounts denominated in Dollars, at a rate up to the greater of (i)
the Federal Funds Effective Rate and (ii) a rate reasonably determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation and (B) in the case of amounts
denominated in any Alternative Currency, the Administrative Agent’s reasonable estimate of the
average daily cost to it of funding such amount, in each case for the period until such Lender makes
such amount immediately available to the Administrative Agent. A certificate of the Administrative
Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days after such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon (A)
in the case of amounts denominated in Dollars, at the rate per annum applicable to Base Rate Loans
under the relevant Facility and (B) in the case of amounts denominated in any Alternative Currency,
the Administrative Agent’s reasonable estimate of its average daily cost of funds plus the Applicable
Rate applicable to Loans denominated in such Alternative Currency under the relevant Facility, on
demand from the applicable Borrower (without prejudice to any rights such Borrower may have against
any such Lender).
(f) Unless the Administrative Agent shall have been notified in writing by the applicable
Borrower prior to the date of any payment due to be made by the applicable Borrower hereunder that
such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may
assume that such Borrower is making such payment, and the Administrative Agent may, but shall not
be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata
shares of a corresponding amount. If such payment is not made to the Administrative Agent by the
applicable Borrower within three Business Days after such due date, the Administrative Agent shall be
entitled to recover, on demand, from each Lender to which any amount which was made available
pursuant to the preceding sentence, (A) in the case of amounts denominated in Dollars, such amount
with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate and
(B) in the case of amounts denominated in an Alternative Currency, such amount with interest thereon
at a rate per annum reasonably determined by the Administrative Agent to be the cost to it of funding
such amount. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any
Lender against the applicable Borrower.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.07(b), 2.07(c), 2.07(d), 2.17(e), 2.17(f), 2.19(e), 3.04(a) or 9.07, then the Administrative
Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts
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thereafter received by the Administrative Agent for the account of such Lender for the benefit of the
Administrative Agent, the Swingline Lender or any Issuing Lender to satisfy such Lender’s obligations
to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such
amounts in a segregated account as cash collateral for, and application to, any future funding
obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in
any order as determined by the Administrative Agent in its discretion.
2.18. Requirements of Law.
(a) If the adoption of or any change in any Law or in the interpretation or application
thereof or compliance by any Lender or other Credit Party with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Credit Party to any Taxes (other than (A) Indemnified Taxes
and (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C)
Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other
obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets held by, deposits or other liabilities in
or for the account of, advances, loans or other extensions of credit (or participations therein) by,
or any other acquisition of funds by, any office of such Lender that is not otherwise included in
the determination of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other condition (other than Taxes);
and the result of any of the foregoing is to increase the cost to such Lender or such other Credit Party, by
an amount that such Lender or other Credit Party deems to be material, of making, converting into,
continuing or maintaining Loans or issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the Company shall promptly pay such
Lender or such other Credit Party, upon its demand, any additional amounts necessary to compensate
such Lender or such other Credit Party for such increased cost or reduced amount receivable. If any
Lender or such other Credit Party becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify the Company (with a copy to the Administrative Agent) of the event
by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any change in any Law
regarding capital or liquidity requirements or in the interpretation or application thereof or compliance
by such Lender or any corporation controlling such Lender with any request or directive regarding
capital or liquidity requirements (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such
Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under or in
respect of any Letter of Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy or liquidity) by an amount deemed by such
Lender to be material, then from time to time, after submission by such Lender to the Company (with a
copy to the Administrative Agent) of a written request therefor, the Company shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such corporation for such
reduction.
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(c) Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines,
requirements and directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or by United States or
foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Xxxx-Xxxxx Xxxx Street
Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives
thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed
to be a change in law, regardless of the date enacted, adopted, issued or implemented.
(d) A certificate as to any additional amounts payable pursuant to this Section submitted by
any Lender to the Company (with a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. Notwithstanding anything to the contrary in this Section, the Company shall
not be required to compensate a Lender pursuant to this Section for any amounts incurred more than
nine months prior to the date that such Lender notifies the Company of such Lenders to any additional
amounts payable pursuant provided that, if the circumstances giving rise to such claim have a
retroactive effect, then such nine-month period shall be extended to include the period of such
retroactive effect. The obligations of the Company pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(e) Notwithstanding any other provision of this Agreement, if, after the date hereof,
(i)(A) the adoption of any law, rule or regulation after the date of this Agreement, (B) any change in
any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (C) compliance by any Lender with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement, shall make it unlawful for any such Lender to make or maintain any Loan
denominated in an Alternative Currency or to give effect to its obligations as contemplated hereby with
respect to any Loan denominated in an Alternative Currency, or (ii) there shall have occurred any
change in national or international financial, political or economic conditions (including the imposition
of or any change in exchange controls, but excluding conditions otherwise covered by this Section 2.18)
or currency exchange rates which would make it impracticable for the Lenders to make or maintain
Loans denominated in an Alternative Currency, or for the account of, any Borrower, then, by written
notice to the Company and to the Administrative Agent:
(i) such Lender or Lenders may declare that Loans denominated in an Alternative
Currencies (in the affected currency or currencies) will not thereafter (for the duration of such
unlawfulness) be made by such Lender or Lenders hereunder (or be continued for additional
Interest Periods), whereupon any request for a Loan denominated in an Alternative Currency (in
the affected currency or currencies) or to continue a Loan denominated in an Alternative
Currency (in the affected currency or currencies), as the case may be, for an additional Interest
Period) shall, as to such Lender or Lenders only, be of no force and effect, unless such declaration
shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Loans denominated in an
Alternative Currency, made by it be converted to Base Rate Loans or Loans denominated in
Dollars, as the case may be (unless repaid by the relevant Borrower as described below), in which
event all such Loans denominated in an Alternative Currencies (in the affected currency or
currencies), shall be converted to Base Rate Loans or Loans denominated in Dollars, as the case
may be, as of the effective date of such notice as provided in Section 2.18(f) and at the Spot Rate
on the date of such conversion or, at the option of the relevant Borrower, repaid on the last day of
the then current Interest Period with respect thereto or, if earlier, the date on which the applicable
notice becomes effective.
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(f) In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the converted Loans
denominated in an Alternative Currency of such Lender shall instead be applied to repay the Base Rate
Loans or Loans denominated in Dollars, as the case may be, made by such Lender resulting from such
conversion. For purposes of Section 2.18(e), a notice to the Company by any Lender shall be effective
as to each Loan denominated in an Alternative Currency made by such Lender, if lawful, on the last day
of the Interest Period, if any, currently applicable to such Loan denominated in an Alternative
Currency; in all other cases such notice shall be effective on the date of receipt thereof by the Company.
2.19. Taxes. (a) Any and all payments by or on account of any obligation of any Loan Party
under any Loan Document shall be made without deduction or withholding for any Taxes, except as
required by applicable law. If any applicable law (as determined in the good faith discretion of an
applicable withholding agent) requires the deduction or withholding of any Tax from any such payment
by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or
withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental
Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable
by the applicable Loan Party shall be increased as necessary so that, after such deduction or withholding
has been made (including such deductions and withholdings applicable to additional sums payable under
this Section 2.19), the amounts received by the applicable Credit Party with respect to this Agreement
equal the sum which would have been received had no such deduction or withholding been made.
(b) The Loan Parties shall timely pay to the relevant Governmental Authority in
accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for,
Other Taxes.
(c) As soon as practicable after any payment of Taxes by any Loan Party to a
Governmental Authority pursuant to this Section 2.19, such Loan Party shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(d) The Loan Parties shall jointly and severally indemnify each Credit Party, within 10
days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes
imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such
Credit Party or required to be withheld or deducted from a payment to such Credit Party and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to the Borrowers by a Lender (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.
(e) Each Lender shall severally indemnify the Administrative Agent, within 10 days after
demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that any Loan
Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without
limiting the obligation of the Loan Parties to do so) and (ii) any Taxes attributable to such Lender’s
failure to comply with the provisions of Section 10.06(c) relating to the maintenance of a Participant
Register, in either case, that are payable or paid by the Administrative Agent in connection with any
Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any Lender by the Administrative
Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative
54
Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan
Document or otherwise payable by the Administrative Agent to the Lender from any other source
against any amount due to the Administrative Agent under this paragraph (e).
(f) (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax
with respect to payments made under any Loan Document shall deliver to the Borrowers and the
Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative
Agent, such properly completed and executed documentation reasonably requested by any Borrower or
the Administrative Agent as will permit such payments to be made without withholding or at a reduced
rate of withholding. In addition, any Lender, if reasonably requested by a Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by such Borrower or the Administrative Agent as will enable the Borrowers or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in Section 2.19(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in
the Lender’s reasonable judgment such completion, execution or submission would subject such Lender
to any material unreimbursed cost or expense or would materially prejudice the legal or commercial
position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that a Borrower is a
U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to such Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender
under this Agreement (and from time to time thereafter upon the reasonable request of
such Borrower or the Administrative Agent), executed originals of IRS Form W-9
certifying that such Lender is exempt from U.S. Federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to such Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of such Borrower or the Administrative Agent), whichever of the
following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to payments of interest under
any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-BEN-E
establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant
to the “interest” article of such tax treaty and (y) with respect to any other applicable
payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E
establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant
to the “business profits” or “other income” article of such tax treaty;
(ii) executed originals of IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in
the form of Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of such
55
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled
foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax
Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or IRS Form
W-8BEN-E; or
(iv) to the extent a Foreign Lender is not the beneficial owner, executed
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-
8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the
form of Exhibit E-2 or Exhibit E-3, IRS Form W-9, and/or other certification documents
from each beneficial owner, as applicable; provided that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax
Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such
direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so,
deliver to such Borrower and the Administrative Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the
reasonable request of such Borrower or the Administrative Agent), executed originals of
any other form prescribed by applicable law as a basis for claiming exemption from or a
reduction in U.S. Federal withholding Tax, duly completed, together with such
supplementary documentation as may be prescribed by applicable law to permit such
Borrower or the Administrative Agent to determine the withholding or deduction
required to be made; and
(D) if a payment made to a Lender under any Loan Document would be
subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail
to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to such Borrower and the Administrative Agent at the time or times prescribed by
law and at such time or times reasonably requested by such Borrower or the
Administrative Agent such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by such Borrower or the Administrative Agent as may be necessary
for such Borrower and the Administrative Agent to comply with their obligations under
FATCA and to determine that such Lender has complied with such Lender’s obligations
under FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), “FATCA” shall include any amendments made to
FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or
becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify
the Borrowers and the Administrative Agent in writing of its legal inability to do so.
(g) If any party determines, in its sole discretion, that it has received a refund of any Taxes
as to which it has been indemnified pursuant to this Section 2.19 (including by the payment of
additional amounts pursuant to this Section 2.19), it shall pay to the indemnifying party an amount
equal to such refund (but only to the extent of indemnity payments made under this Section with respect
to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of, and net
of any loss or gain realized in the conversion of such funds or to another currency incurred by, such
56
indemnified party and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified
party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event
that such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be
required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of
which would place the indemnified party in a less favorable net after-Tax position than the indemnified
party would have been in if the indemnification payments or additional amounts giving rise to such
refund had never been paid. This paragraph shall not be construed to require any indemnified party to
make available its Tax returns (or any other information relating to its Taxes that it deems confidential)
to the indemnifying party or any other Person.
(h) Each party’s obligations under this Section 2.19 shall survive the resignation or
replacement of the Administrative 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 the Loan Documents.
(i) For purposes of this Section 2.19, the term “Lender,” including as referenced in any
defined term used in this Section, includes the Issuing Lenders and the Swingline Lender.
2.20. Indemnity. Each Borrower agrees to indemnify each Lender for, and to hold each
Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of (a)
default by a Borrower in making a borrowing of, conversion into or continuation of Eurocurrency Rate
Loans after the applicable Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by a Borrower in making any prepayment of or conversion from
Eurocurrency Rate Loans after the applicable Borrower has given a notice thereof in accordance with the
provisions of this Agreement, (c) the making of a prepayment of Eurocurrency Rate Loans (or the
conversion of a Eurocurrency Loan into a Loan of a different Type) on a day that is not the last day of an
Interest Period with respect thereto or (d) or the assignment of any Eurocurrency Loan other than on the
last day of an Interest Period therefor as a result of a request by the Company pursuant to Section 2.22.
Such indemnification will include an amount equal to the excess, if any, of (i) the amount of interest that
would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such
Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans
provided for pursuant to Section 2.14 (excluding the Applicable Rate provided for therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender
on such amount by placing such amount on deposit for a comparable period with leading banks in the
interbank eurocurrency market. A certificate as to any amounts payable pursuant to this Section
submitted to a Borrower by any Lender shall be conclusive in the absence of manifest error and shall be
payable within 30 days of receipt of any such notice (or such later date as may be agreed by the applicable
Lender). This covenant shall survive the termination of this Agreement and the repayment of the Loans
and all other amounts payable hereunder and under the other Loan Documents.
2.21. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 2.18 or 2.19(a) with respect to such Lender, it will, if requested by
the Company or the applicable Borrower, use reasonable efforts (subject to overall policy considerations
of such Lender) to designate another lending office for any Loans affected by such event with the object
of avoiding the consequences of such event; provided, that such designation is made on terms that, in the
sole judgment of such Lender, cause such Lender and its lending offices to suffer no economic, legal or
57
regulatory disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of
the obligations of the Company or the applicable Borrower or the rights of any Lender pursuant to Section
2.18 or 2.19(a).
2.22. Replacement of Lenders. The applicable Borrower shall be permitted to replace any
Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a), (b)
becomes a Defaulting Lender, or (c) does not consent to any proposed amendment, supplement,
modification, consent or waiver of any provision of this Agreement or any other Loan Document that
requires the consent of each of the Lenders or each of the Lenders affected thereby (so long as the consent
of the Required Lenders has been obtained), with a replacement financial institution; provided that (i)
such replacement does not conflict with any Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement, such Lender shall have
taken no action under Section 2.21 so as to eliminate the continued need for payment of amounts owing
pursuant to Section 2.18 or 2.19(a), (iv) the replacement financial institution shall purchase, at par, all
Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the
applicable Borrower shall be liable to such replaced Lender under Section 2.20 if any Eurocurrency Rate
Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (vi) the replacement financial institution shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.6 (provided that the applicable Borrower shall be obligated
to pay the registration and processing fee referred to therein), (viii) until such time as such replacement
shall be consummated, the applicable Borrower shall pay all additional amounts (if any) required pursuant
to Section 2.18 or 2.19(a), as the case may be, and (ix) any such replacement shall not be deemed to be a
waiver of any rights that the applicable Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender. Each party hereto agrees that an assignment required pursuant to this
paragraph may be effected pursuant to an Assignment and Assumption executed by Company, the
Administrative Agent and the assignee, and that the Lender required to make such assignment need not be
a party thereto in order for such assignment to be effective.
2.23. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary,
if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such
Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Revolving Commitment of
such Defaulting Lender pursuant to Section 2.08(a);
(b) the Revolving Commitment and Revolving Extensions of Credit of such Defaulting
Lender shall not be included in determining whether the Required Lenders have taken or may take any
action hereunder (including any consent to any amendment, waiver or other modification pursuant to
Section 10.01); provided, that this clause (b) shall not apply to the vote of a Defaulting Lender in the
case of an amendment, waiver or other modification requiring the consent of such Lender or each
Lender affected thereby;
(c) if any Swingline Exposure or L/C-B/A Exposure exists at the time such Lender
becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure and L/C-B/A Exposure of such
Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of
the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance
with their respective Revolving Percentages but only to the extent the sum of all non-Defaulting
Lenders’ Revolving Extensions of Credit plus such Defaulting Lender’s Swingline Exposure and
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L/C-B/A Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving
Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be
effected, the applicable Borrower shall within one Business Day following notice by the
Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize
for the benefit of the applicable Issuing Lender only the Borrower’s obligations corresponding to
such Defaulting Lender’s L/C-B/A Exposure (after giving effect to any partial reallocation
pursuant to clause (i) above) in accordance with the procedures set forth in Article VIII for so
long as such L/C-B/A Exposure is outstanding;
(iii) if the applicable Borrower cash collateralizes any portion of such Defaulting
Lender’s L/C-B/A Exposure pursuant to clause (ii) above, the applicable Borrower shall not be
required to pay any fees to such Defaulting Lender pursuant to Section 3.3(a) with respect to such
Defaulting Lender’s L/C-B/A Exposure during the period such Defaulting Lender’s L/C-B/A
Exposure is cash collateralized;
(iv) if the L/C-B/A Exposure of the non-Defaulting Lenders is reallocated pursuant to
clause (i) above, then the fees payable to the Lenders pursuant to Section 2.08(a) and Section
3.03(a) shall be adjusted in accordance with such non-Defaulting Lenders’ Revolving
Percentages; and
(v) if all or any portion of such Defaulting Lender’s L/C-B/A Exposure is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to
any rights or remedies of the applicable Issuing Lender or any other Lender hereunder, all fees
payable under Section 3.03(a) with respect to such Defaulting Lender’s L/C-B/A Exposure shall
be payable to the applicable Issuing Lender until and to the extent that such L/C-B/A Exposure is
reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and the Issuing Lenders shall not be required to issue, amend or
increase any Letter of Credit or create, amend or increase any Bankers’ Acceptance, unless such
Swingline Lender or the applicable Issuing Lender is satisfied that the related exposure and the
Defaulting Lender’s then outstanding L/C-B/A Exposure will be 100% covered by the Revolving
Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the applicable
Borrower in accordance with Section 2.23(c), and participating interests in any newly made Swingline
Loan, any newly issued or increased Letter of Credit or any newly created or increased Bankers’
Acceptance shall be allocated among non-Defaulting Lenders in a manner consistent with Section
2.23(c)(i) (and such Defaulting Lender shall not participate therein).
If (i) a Bankruptcy Event or Bail-In Action with respect to a Lender Parent of any Lender
shall occur following the date hereof and for so long as such event shall continue or (ii) the Swingline
Lender or any Issuing Lender has a good faith belief that any Lender has defaulted in fulfilling its
obligations under one or more other agreements in which such Lender commits to extend credit, the
Swingline Lender shall not be required to fund any Swingline Loan and the applicable Issuing Lender
shall not be required to issue, amend or increase any Letter of Credit or create, amend or increase any
Bankers’ Acceptance, unless the Swingline Lender or the applicable Issuing Lender, as the case may be,
shall have entered into arrangements with the applicable Borrower or such Lender, satisfactory to the
Swingline Lender or the applicable Issuing Lender, as the case may be, to defease any risk to it in respect
of such Lender hereunder.
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In the event that the Administrative Agent, the Company, the applicable Borrower, the
Swingline Lender and the applicable Issuing Lender each agrees that a Defaulting Lender has adequately
remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure and
L/C-B/A Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving
Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders
(other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order for
such Lender to hold such Loans in accordance with its Revolving Percentage.
2.24. Incremental Facilities. (a) The Company or any Borrower and any one or more
Lenders (including New Lenders) may from time to time agree that such Lenders shall (i) make, obtain or
increase the amount of their Term Loans or (ii) during the Revolving Availability Period, make, obtain or
increase the amount of their Revolving Commitments, as applicable, by executing and delivering to the
Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase
and the Facility or Facilities involved, (ii) the applicable Increased Facility Closing Date and (iii) in the
case of Incremental Term Loans, (x) the applicable Incremental Term Maturity Date, which shall not be
prior to the Initial Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term
Loans, which shall comply with Section 2.03, and (z) the Applicable Rate for such Incremental Term
Loans; provided, that, prior to the twelve month anniversary of the Closing Date, if the all-in yield in
respect of any Incremental Term Loans exceeds the all-in yield for the Initial Term Loans immediately
prior to the effectiveness of such Incremental Term Loans by more than 0.50% (to be determined by the
Administrative Agent consistent with generally accepted financial practices, after giving effect to
margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders
thereof and applicable interest rate floors), then the Applicable Rate relating to the Initial Term Loans
shall be adjusted so that the all-in yield relating to such Incremental Term Loans shall not exceed the all-
in yield relating to the Initial Term Loans by more than 0.50%. Notwithstanding the foregoing, (i)
without the consent of the Required Lenders, the sum of (x) the aggregate principal amount of the
Incremental Facilities incurred pursuant to this Section 2.24, and (y) the aggregate outstanding principal
amount of Incremental Equivalent Debt incurred in reliance on Section 7.03(s) shall not at the time of
incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to
such incurrence) exceed the Available Incremental Amount at such time, (ii) each increase effected
pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 (or the Dollar Equivalent
thereof) and (iii) no more than three Increased Facility Closing Dates may be selected by the Borrowers
after the Closing Date. No Lender shall have any obligation to participate in any increase described in
this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the
applicable Borrower and the Administrative Agent (which consent shall not be unreasonably withheld),
elects to become a “Lender” under this Agreement in connection with an Incremental Facility pursuant
to the transactions described in Section 2.24(a) shall execute a New Lender Supplement (each, a “New
Lender Supplement”), substantially in the form of Exhibit F-3, whereupon such bank, financial
institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same
extent as if originally a party hereto and shall be bound by and entitled to the benefits of this
Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility
Closing Date with respect to the Revolving Facility, the Borrowers shall borrow Revolving Loans under
the relevant Revolving Commitments from each Lender participating in the relevant Incremental
Revolving Commitment in an amount determined by reference to the amount of each Type of Loan
(and, in the case of Eurocurrency Rate Loans, of each Eurocurrency Tranche) which would then have
been outstanding from such Lender if (i) each such Type or Eurocurrency Tranche had been borrowed
or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or
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Eurocurrency Tranche requested to be so borrowed or effected had been proportionately increased. The
Eurocurrency Base Rate applicable to any Eurocurrency Rate Loan borrowed pursuant to the preceding
sentence shall equal the Eurocurrency Base Rate then applicable to the Eurocurrency Rate Loans of the
other Lenders in the same Eurocurrency Tranche (or, until the expiration of the then-current Interest
Period, such other rate as shall be agreed upon between the Borrowers and the relevant Lender.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto
hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the
extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facilities
evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative
Agent with the Company’s consent (not to be unreasonably withheld) and furnished to the other parties
hereto. Each Incremental Facility and all extensions of credit thereunder shall be secured by the
Collateral on a pari passu basis with the Liens on the Collateral securing the other Obligations.
2.25. Designated Borrowers.
(a) The Company may at any time, upon (a) not less than 60 Business Days’ notice from
the Company to the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion) and (b) receipt of the Administrative Agent’s and each
Lenders’ prior written consent, designate any Subsidiary of the Company (an “Applicant Borrower”) as
a Designated Borrower to receive Loans hereunder by delivering to the Administrative Agent (which
shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in
substantially the form of Exhibit C (a “Designated Borrower Request and Assumption Agreement”).
The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to
utilize the credit facilities provided for herein the Administrative Agent shall have received such
supporting resolutions, incumbency certificates, Organization Documents (as well as a recent extract
from the Dutch trade register (Handelsregister) in respect of a Dutch Designated Borrower), Security
Documents, opinions of counsel and other documents or information (including, without limitation,
information with respect to the Patriot Act, Sanctions and Anti-Corruption Laws, and in respect of any
relevant Dutch Loan Party, a copy (if required) of a positive advice from its (central) works council
(and, if such advice is not unconditional, confirmation from the Company that (i) the conditions set by
the works council are and will be complied with and (ii) such compliance does and will not have a
Material Adverse Effect)), in form, content and scope reasonably satisfactory to the Administrative
Agent, as may be required by the Administrative Agent in its sole discretion, and Notes signed by such
new Borrowers to the extent any Lenders so require. If the Administrative Agent and the Lenders agree
that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following
receipt of all such requested resolutions, incumbency certificates, Security Documents, opinions of
counsel and other documents or information, the Administrative Agent shall send a notice in
substantially the form of Exhibit D (a “Designated Borrower Notice”) to the Company and the Lenders
specifying the effective date upon which the Applicant Borrower shall constitute a Designated
Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated
Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the
parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this
Agreement; provided that no borrowing request may be submitted by or on behalf of such Designated
Borrower until the date five Business Days after such effective date.
(b) The Obligations of the Company and each Designated Borrower that is a Domestic
Subsidiary shall be joint and several in nature. The Obligations of the Dutch Borrower and the German
Borrower and all Designated Borrowers that are Foreign Subsidiaries shall be several in nature.
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(c) Each Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant
to this Section 2.25 hereby irrevocably appoints the Company as its agent for all purposes relevant to
this Agreement and each of the other Loan Documents, including (i) the giving and receipt of notices,
(ii) the execution and delivery of all documents, instruments and certificates contemplated herein and
all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any
such Designated Borrower hereunder. Any acknowledgment, consent, direction, certification or other
action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each
Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether or
not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction,
certification or other communication delivered to the Company in accordance with the terms of this
Agreement shall be deemed to have been delivered to each Designated Borrower.
(d) The Company may from time to time, upon not less than 15 Business Days’ notice
from the Company to the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion), terminate a Designated Borrower’s status as such, provided
that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by
such Designated Borrower on account of any Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any such termination of a
Designated Borrower’s status.
(e) Notwithstanding the above, any Lender that may not legally lend to, establish credit for
the account of and/or do any business whatsoever with such Designated Borrower shall notify the
Company and the Administrative Agent in writing that such Lender will not provide any Loans to such
Designated Borrower.
2.26. Collateral Security. Subject to Section 6.12, the Obligations (which, for the avoidance
of doubt, shall include the Foreign Loan Party Obligations) shall be secured by a perfected first priority
security interest (subject only to Liens permitted by Section 7.01 entitled to priority under applicable
Law) in (i) all of the assets of the Domestic Loan Parties (other than Equity Interests in Subsidiaries
which are addressed in clause (ii) below), whether now owned or hereafter acquired, including, without
limitation all personal property of each Loan Party, (ii) all Equity Interests of all Domestic Subsidiaries of
each Domestic Loan Party and all Equity Interests of each first-tier Foreign Subsidiary of each Domestic
Loan Party; provided that, with respect to Foreign Subsidiaries, such equity pledge shall be limited to
65% of the capital stock of such Foreign Subsidiary to the extent the pledge secures Domestic Loan Party
Obligations, (iii) all present and future intercompany debt owing to each Domestic Loan Party and (iv) all
proceeds and products of the property and assets described in (i), (ii) and (iii) above.
2.27. Non-Public Lender. Any Loan to the Dutch Borrower or any Dutch Designated
Borrower shall at all times be provided by a Lender that is a Non-Public Lender.
2.28. Promissory Notes. Any Lender may request that Loans made by it be evidenced by a
Note. In such event, the applicable Borrower shall prepare, execute and deliver to such Lender a Note
payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent and the applicable Borrower. Thereafter,
the Loans evidenced by such Note and interest thereon shall at all times (including after assignment
pursuant to Section 10.06) be represented by one or more Notes in such form payable to the order of the
payee named therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).
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ARTICLE III.
LETTERS OF CREDIT AND BANKERS’ ACCEPTANCES.
3.01. L/C-B/A Commitment. (a) Subject to the terms and conditions hereof, the applicable
Issuing Lender, in reliance on the agreements of the other Revolving Lenders set forth in Section 3.04(a),
agrees to issue Letters of Credit and create Bankers’ Acceptances in accordance with the terms of the
applicable Letter of Credit in Dollars or any Alternative Currency for the account of any Borrower or any
Subsidiary on any Business Day during the Revolving Commitment Period in such form as may be
approved from time to time by the applicable Issuing Lender; provided that (A) such Issuing Lender shall
have no obligation to issue any Letter of Credit or create any BA if, after giving effect to such issuance,
(i) Total Revolving Extensions of Credit shall exceed the Revolving Commitments, (ii) the Revolving
Extensions of Credit of any Lender, plus the Dollar Equivalent of such Lender’s L/C-B/A Exposure then
outstanding, plus such Lender’s Swingline Exposure then outstanding shall exceed such Lender’s
Commitment, (iii) the Dollar Equivalent of L/C-B/A Obligations then outstanding shall exceed the L/C-
B/A Commitment, (iv) Total Revolving Extensions of Credit denominated in Alternative Currencies shall
exceed the Alternative Currency Sublimit or (v) Total Revolving Extensions of Credit to Foreign
Borrowers shall exceed the Foreign Borrower Sublimit and (B) as to Acceptance Credits, the Bankers’
Acceptance created or to be created thereunder shall be an eligible Bankers’ Acceptance under Section 13
of the Federal Reserve Act (12 U.S.C. §372). Each request by the Company for the issuance or
amendment of a Letter of Credit or Bankers’ Acceptance shall be deemed to be a representation by the
Company that the L/C-B/A Credit Extension so requested complies with the conditions set forth in the
proviso to the preceding sentence. All Existing Letters of Credit and Existing Bankers’ Acceptances shall
be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to
and governed by the terms of and conditions hereof.
(b) The applicable Issuing Lender shall not at any time be obligated to issue any Letter of
Credit or create any BA if:
(i) such issuance or creation would conflict with, or cause the applicable Issuing
Lender or any L/C-B/A Participant to exceed any limits imposed by, any applicable requirement
of Law;
(ii) (A) the expiry date of such requested Letter of Credit would occur after the
earlier of (x) the first anniversary of its date of issuance and (y) the Letter of Credit-B/A
Expiration Date; provided that any Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend beyond the date
referred to in clause (A)(y) above) and (B) the maturity of any Bankers’ Acceptance would occur
earlier than 30 or later than 120 days from the date of issuance, and in any event, later than 60
days before the Letter of Credit-B/A Expiration Date, unless the Administrative Agent and the
applicable Issuing Lender have approved such maturity date;
(iii) any order, judgment or decree of any Governmental Authority or arbitrator shall
by its terms purport to enjoin or restrain the applicable Issuing Lender from issuing such Letter of
Credit or creating any related Bankers’ Acceptance, or any Law applicable to the applicable
Issuing Lender or any request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the applicable Issuing Lender shall prohibit, or
request that the applicable Issuing Lender refrain from, the issuance of letters of credit or creation
of related Bankers’ Acceptances generally or such Letter of Credit or any related Bankers’
Acceptance in particular or shall impose upon the applicable Issuing Lender with respect to such
Letter of Credit or related Bankers’ Acceptance any restriction, reserve or capital requirement (for
which the applicable Issuing Lender is not otherwise compensated hereunder) not in effect on the
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Closing Date, or shall impose upon the applicable Issuing Lender any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which the applicable Issuing Lender
in good xxxxx xxxxx material to it;
(iv) the issuance of such Letter of Credit or creation of any Bankers’ Acceptance
would violate one or more policies of the applicable Issuing Lender applicable to letters of credit
generally, or the creation of any related Bankers’ Acceptance would cause the applicable Issuing
Lender to exceed the maximum amount of outstanding bankers’ acceptances permitted by
applicable Law;
(v) such Letter of Credit or any related Bankers’ Acceptance shall be denominated in
a currency other than Dollars or an Alternative Currency;
(vi) such Letter of Credit or any related Bankers’ Acceptance contains any provisions
for automatic reinstatement of the stated amount after any drawing thereunder; or
(vii) the applicable Issuing Lender does not as of the issuance date of such requested
Letter of Credit or any related Bankers’ Acceptance issue Letters of Credit or Bankers’
Acceptances in the requested currency.
(c) Each applicable Issuing Lender shall notify the Administrative Agent of (i) the issuance
of any Letter of Credit or creation of any Bankers’ Acceptance on the date of any such issuance or
creation, (ii) the increase or decrease in the amount of any Letter of Credit or Bankers’ Acceptance on
the date of any such increase or decrease, (iii) the extension or renewal of any Letter of Credit or
Bankers’ Acceptance on the date of any such extension or renewal and (iv) the outstanding aggregate
principal amount of any L/C-B/A Credit Extensions on the last Business Day of each month.
3.02. Procedure for Issuance of Letter of Credit or BA. Any Borrower may from time to
time request that the Issuing Lender issue a Letter of Credit or create a BA by delivering to the applicable
Issuing Lender at its address for notices specified herein an Application therefor, completed to the
satisfaction of the applicable Issuing Lender, and such other certificates, documents and other papers and
information as the applicable Issuing Lender may request. Upon receipt of any Application, the
applicable Issuing Lender will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its customary procedures and
shall promptly issue the Letter of Credit or create the BA requested thereby (but in no event shall such
Issuing Lender be required to issue any Letter of Credit or create any BA earlier than three Business Days
after its receipt of the Application therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit or BA to the beneficiary
thereof or as otherwise may be agreed to by the applicable Issuing Lender and the applicable Borrower.
The applicable Issuing Lender shall furnish a copy of such Letter of Credit or BA to the applicable
Borrower promptly following the issuance thereof. The applicable Issuing Lender shall promptly furnish
to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of the issuance of
each Letter of Credit or BA (including the amount thereof).
3.03. Fees and Other Charges. (a) The applicable Borrower will pay a fee in Dollars on all
outstanding Letters of Credit or Bankers’ Acceptances at a per annum rate equal to the Applicable Rate
then in effect, shared ratably among the Revolving Lenders and payable quarterly in arrears on each Fee
Payment Date after the issuance date. In addition, the applicable Borrower shall pay to the Issuing
Lender for its own account a fronting fee in Dollars of 0.125% per annum on the undrawn and unexpired
amount of the Dollar Equivalent of each Letter of Credit and BA, payable quarterly in arrears on each Fee
Payment Date after the issuance date.
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(b) In addition to the foregoing fees, the applicable Borrower shall pay or reimburse the
applicable Issuing Lender for such normal and customary costs and expenses as are incurred or charged
by such Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit or BA.
3.04. L/C-B/A Participations. (a) The applicable Issuing Lender irrevocably agrees to grant
and hereby grants to each L/C-B/A Participant, and, to induce the applicable Issuing Lender to issue
Letters of Credit and create BA’s, each L/C-B/A Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the applicable Issuing Lender, on the terms and conditions set
forth below, for such L/C-B/A Participant’s own account and risk an undivided interest equal to such
L/C-B/A Participant’s Revolving Percentage in the applicable Issuing Lender’s obligations and rights
under and in respect of each Letter of Credit and BA and the amount of each draft paid or reimbursed by
the applicable Issuing Lender thereunder. Each L/C-B/A Participant agrees with the applicable Issuing
Lender that, if a draft is paid under any Letter of Credit or reimbursed under any BA for which such
Issuing Lender is not reimbursed in full by the applicable Borrower in accordance with the terms of this
Agreement (or in the event that any reimbursement received by such Issuing Lender shall be required to
be returned by it at any time), such L/C-B/A Participant shall pay to the applicable Issuing Lender upon
demand at the applicable Issuing Lender’s address for notices specified herein the amount in Dollars
equal to the Dollar Equivalent of such L/C-B/A Participant’s Revolving Percentage of the amount that is
not so reimbursed (or is so returned). Each L/C-B/A Participant’s obligation to pay such amount shall be
absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such L/C-B/A Participant may have against the
applicable Issuing Lender, the applicable Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Article IV, (iii) any adverse change in the condition (financial or otherwise) of the
Company or the applicable Borrower, (iv) any breach of this Agreement or any other Loan Document by
the applicable Borrower, any other Loan Party or any other L/C-B/A Participant or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(b) If any amount required to be paid by any L/C-B/A Participant to the applicable Issuing
Lender pursuant to Section 3.04(a) in respect of any unreimbursed portion of any payment made by the
applicable Issuing Lender under any Letter of Credit or BA is paid to the applicable Issuing Lender
within three Business Days after the date such payment is due, such L/C-B/A Participant shall pay to
the applicable Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii)
the daily average Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available to the applicable
Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. If any such amount required to be paid by any L/C-
B/A Participant pursuant to Section 3.04(a) is not made available to the applicable Issuing Lender by
such L/C-B/A Participant within three Business Days after the date such payment is due, the applicable
Issuing Lender shall be entitled to recover from such L/C-B/A Participant, on demand, such amount
with interest thereon calculated from such due date at the rate per annum applicable to Base Rate Loans
under the Revolving Facility. A certificate of the applicable Issuing Lender submitted to any L/C-B/A
Participant with respect to any amounts owing under this Section shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the applicable Issuing Lender has made payment under any
Letter of Credit or BA and has received from any L/C-B/A Participant its pro rata share of such
payment in accordance with Section 3.04(a), the applicable Issuing Lender receives any payment
related to such Letter of Credit or BA (whether directly from the applicable Borrower or otherwise,
including proceeds of collateral applied thereto by the applicable Issuing Lender), or any payment of
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interest on account thereof, the applicable Issuing Lender will distribute to such L/C-B/A Participant its
pro rata share thereof; provided, however, that in the event that any such payment received by the
applicable Issuing Lender shall be required to be returned by the applicable Issuing Lender, such L/C-
B/A Participant shall return to the applicable Issuing Lender the portion thereof previously distributed
by the applicable Issuing Lender to it.
3.05. Reimbursement Obligation of the Borrower. If any draft is paid under any Letter of
Credit or any Bankers’ Acceptance is presented for payment, the applicable Issuing Lender shall notify
the Company and the Administrative Agent thereof. In the case of a Letter of Credit or Bankers’
Acceptance denominated in an Alternative Currency, the Company shall reimburse the applicable Issuing
Lender in such Alternative Currency, unless (A) the applicable Issuing Lender (at its option) shall have
specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such
requirement for reimbursement in Dollars, the Company shall have notified the applicable Issuing Lender
promptly following receipt of the notice of drawing or payment that the Company will reimburse the
applicable Issuing Lender in Dollars. In the case of any such reimbursement in Dollars of a drawing under
a Letter of Credit or payment under a Bankers’ Acceptance denominated in an Alternative Currency, the
Administrative Agent shall notify the applicable Issuing Lender and the Company of the Dollar
Equivalent of the amount of the drawing or payment promptly following the determination thereof. The
applicable Borrower shall reimburse the applicable Issuing Lender for the amount of (a) the draft so paid
and (b) any taxes, fees, charges or other costs or expenses incurred by the applicable Issuing Lender in
connection with such payment, not later than 12:00 Noon, New York City time (in the case of any
reimbursement in Dollars) or the Local Time (in the case of any reimbursement in an Alternative
Currency) on (i) the Business Day that the applicable Borrower receives notice of such draft or payment,
if such notice is received on such day prior to 10:00 A.M., New York City time, or (ii) if clause (i) above
does not apply, the Business Day immediately following the day that the applicable Borrower receives
such notice. Each such payment shall be made to the applicable Issuing Lender at its address for notices
referred to herein in Dollars or the applicable Alternative Currency and in immediately available funds.
Interest shall be payable on any such amounts from the date on which the relevant draft is paid until
payment in full at the rate set forth for Reimbursement Obligations (x) until the Business Day next
succeeding the date of the relevant notice, Section 2.14(b) for amounts payable in Dollars or Section
2.14(a) for amounts payable in Alternative Currencies (at such rate applicable to Revolving Loans made
in the relevant Alternative Currency) and (y) thereafter, Section 2.14(c) (at such rate applicable to
Reimbursement Obligations made in the relevant Currency).
3.06. Obligations Absolute. The applicable Borrower’s obligations under this Article III shall
be absolute, unconditional and irrevocable under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the applicable Borrower may have or have had against the
applicable Issuing Lender, any beneficiary of a Letter of Credit or BA or any other Person. The
applicable Borrower also agrees with the applicable Issuing Lender that the applicable Issuing Lender
shall not be responsible for, and the applicable Borrower’s Reimbursement Obligations under Section
3.05 shall not be affected by, among other things, (a) any lack of validity or enforceability of any Letter of
Credit, BA or this Agreement, or any term or provision therein, (b) any draft or other document presented
under a Letter of Credit or BA proving to be invalid, fraudulent or forged in any respect or any statement
therein being untrue or inaccurate in any respect, (c) any dispute between or among the applicable
Borrower and any beneficiary of any Letter of Credit or BA or any other party to which such Letter of
Credit or BA may be transferred or any claims whatsoever of the applicable Borrower against any
beneficiary of such Letter of Credit or BA or any such transferee, (d) payment by the applicable Issuing
Lender under a Letter of Credit or BA against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit or BA, (e) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute
a legal or equitable discharge of, or provide a right of setoff against, the applicable Borrower's obligations
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hereunder or (f) any adverse change in the relevant exchange rates or in the availability of the relevant
Alternative Currency to the Company or any Subsidiary or in the relevant currency markets generally.
The applicable Issuing Lender shall not have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit or BA or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft, notice or message or advice,
however transmitted, in connection with any Letter of Credit or BA (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or any consequence arising
from causes beyond the control of the applicable Issuing Lender; provided that the foregoing shall not be
construed to excuse the applicable Issuing Lender from liability to the applicable Borrower to the extent
of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in
respect of which are hereby waived by the applicable Borrower to the extent permitted by applicable
Law) suffered by the applicable Borrower that are caused by the applicable Issuing Lender's failure to
exercise care when determining whether drafts and other documents presented under a Letter of Credit or
BA comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the applicable Issuing Lender (as finally determined by a
court of competent jurisdiction), the applicable Issuing Lender shall be deemed to have exercised care in
each such determination. In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit or BA, the applicable Issuing Lender may, in its sole
discretion, either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance with the terms of such
Letter of Credit or BA.
3.07. Letter of Credit Payments. If any draft shall be presented for payment under any Letter
of Credit or BA, the applicable Issuing Lender shall promptly notify the applicable Borrower and the
Administrative Agent of the date and amount thereof. The responsibility of the applicable Issuing Lender
to the applicable Borrower in connection with any draft presented for payment under any Letter of Credit
or BA shall, in addition to any payment obligation expressly provided for in such Letter of Credit or BA,
be limited to determining that the documents (including each draft) delivered under such Letter of Credit
or BA in connection with such presentment are substantially in conformity with such Letter of Credit or
BA.
3.08. Applications. To the extent that any provision of any Application related to any Letter
of Credit or BA is inconsistent with the provisions of this Article III, the provisions of this Article III
shall apply.
3.09. Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable
Issuing Lender and the Company when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of
Credit, and (ii) the rules of the UCP shall apply to each commercial Letter of Credit. Notwithstanding the
foregoing, the applicable Issuing Lender shall not be responsible to the Borrowers for, and the applicable
Issuing Lender’s rights and remedies against the Borrowers shall not be impaired by, any action or
inaction of the applicable Issuing Lender required or permitted under any Law, order, or practice that is
required or permitted to be applied to any Letter of Credit, Bankers’ Acceptance or this Agreement,
including the Law or any order of a jurisdiction where the applicable Issuing Lender or the beneficiary is
located, the practice stated in the ISP of UCP, as applicable, or in the decisions, opinions, practice
statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance
and Trade – International Financial Services Association (BAFT-IFSA), or the Institute of International
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Banking Law & Practice, whether or not any Letter of Credit or Bankers’ Acceptance chooses such law or
practice.
ARTICLE IV.
CONDITIONS PRECEDENT
4.01. Conditions of Closing and Initial Term Credit Extension. The effectiveness of this
Agreement and the agreement of each Lender to make any extension of credit of Initial Term Loans
requested to be made by it on the Closing Date is subject to satisfaction of the following conditions
precedent on or prior to the Closing Date:
(a) The Administrative Agent’s receipt of the following, each in form and substance
satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and each other Loan Document,
sufficient in number for distribution to the Administrative Agent, each Lender and the Company;
(ii) Notes executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent may
require evidencing the identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party;
(iv) such documents and certifications (including the Organization Documents, and
with respect to the Dutch Borrower, an extract from the Chamber of Commerce (Xxxxx van
Koophandel)) as the Administrative Agent may reasonably require to evidence that each Loan
Party is duly organized or formed, and that each Loan Party is validly existing, in good standing
(to the extent applicable) and qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;
(v) a favorable opinion of DLA Piper LLP (US), counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan
Parties and the Loan Documents as the Administrative Agent may reasonably request
(vi) a favorable opinion of Oklahoma local counsel to Crane Equipment & Service,
Inc., reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent
and each Lender;
(vii) a favorable opinion of Michigan local counsel to Unified Industries Inc.,
reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and
each Lender;
(viii) a favorable legal capacity opinion of DLA Piper UK LLP local counsel to
Columbus XxXxxxxx EMEA GmbH, reasonably acceptable to the Administrative Agent,
addressed to the Administrative Agent and each Lender;
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(ix) a favorable opinion of DLA Piper Nederland N.V. local counsel to Columbus
XxXxxxxx Dutch Holdings 3 B.V., reasonably acceptable to the Administrative Agent, addressed
to the Administrative Agent and each Lender;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution, delivery
and performance by such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and approvals shall be in full force
and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) (i) (a) audited consolidated balance sheets and related statements of income,
stockholders’ equity and cash flows of the Company and its Subsidiaries, for the three most
recently completed fiscal years ended at least 90 days before the Closing Date and (b) unaudited
consolidated balance sheets and related statements of income, stockholders’ equity and cash
flows of the Company and its Subsidiaries, for each subsequent fiscal quarter ended at least 45
days before the Closing Date; provided that filing of the required financial statements on form 10-
K and form 10-Q by the Company will satisfy the foregoing requirements of this clause (i) and
(ii) pro forma financial statements (balance sheet and profit and loss statement) of the XXXXX XX
Companies as of December 31, 2016, to the extent delivered under the Acquisition Agreement,
prepared in accordance with International Financial reporting Standards and verified by Ernst &
Young Oy, Finland in accordance with the Agreed-Upon Procedures (as defined in the
Acquisition Agreement).
(xii) a solvency certificate signed by the chief financial officer of the Loan Parties;
(xiii) evidence that all insurance required to be maintained pursuant to the Loan
Documents has been obtained and is in effect;
(xiv) each UCC financing statement and Intellectual Property Security Agreement
required by the Security Documents to be filed, registered or recorded in order to create in favor
of the Administrative Agent, for the benefit of the Secured Parties, a first priority (subject only to
Liens permitted pursuant to Section 7.01 and entitled to priority under applicable Law) perfected
security interest in and Lien upon the Collateral, each in proper form for filing, registration or
recordation;
(xv) a completed perfection certificate with respect to each Loan Party (in a form
reasonably satisfactory to the Administrative Agent) dated the Closing Date and signed by a
Responsible Officer of the Company, together with all attachments contemplated thereby,
including the results of a search of the UCC filings (and the equivalent thereof in all applicable
foreign jurisdictions) made with respect to the Loan Parties in the jurisdictions contemplated by
the perfection certificate and copies of the financing statements (or similar documents) disclosed
by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens
indicated by such financing statements (or similar documents) are permitted by Section 7.01 or
have been released;
(xvi) assignments to the Administrative Agent for the benefit of the Lenders, of all
notes and instruments evidencing intercompany Indebtedness among the Company and its
Subsidiaries;
(xvii) (A) an irrevocable notice from the Company terminating the Existing Credit
Facility and authorizing JPMorgan Chase Bank, N.A. in its capacity as Administrative Agent to
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apply a portion of the proceeds of the Initial Term Loans hereunder to repay all amounts owed
thereunder substantially simultaneously with the occurrence of the Closing Date (the
“Refinancing”) and (B) satisfactory arrangement shall have been made for the termination of all
Liens granted in connection therewith;
(xviii) (A) the certificates representing the shares of capital stock pledged pursuant to
the U.S. Security Agreement or applicable Pledge Agreement, together with an undated stock
power for each such certificate executed in blank by a duly authorized officer of the pledgor
thereof (or, in the case of Foreign Subsidiaries, customary documents as applicable) and (B) each
promissory note (if any) pledged to the Administrative Agent pursuant to the U.S. Security
Agreement or applicable Pledge Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank) by the pledgor thereof;
(xix) at least 3 days prior to the Closing Date, all documentation and other information
with respect to the Company and its Subsidiaries that shall have been reasonably requested by the
Administrative Agent in writing at least 5 days prior to the Closing Date that the Administrative
Agent reasonably determines is required by regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations, including the Patriot Act; and
(xx) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the Issuing Lender, the Swingline Lender or the Required Lenders
reasonably may require.
Notwithstanding the foregoing, if the Company shall have used commercially reasonable efforts to
procure and deliver, but shall nevertheless be unable to deliver, any document or take any action that is
required to be delivered or taken in order to satisfy the requirements of sub-clauses xiii, xiv, xvi, and xviii
above, such delivery or action (other than the creation of and perfection (including by delivery of stock or
other equity certificates, if any) of security interests in (i) the Equity Interests of Domestic Subsidiaries and
(ii) other assets located in the United States with respect to which a Lien may be perfected by the filing of
a financing statement under the UCC) shall not be a condition precedent to the obligations of the Lenders
and the Issuing Lenders hereunder on the Closing Date, but shall be required to be accomplished as provided
in Section 6.16.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees,
charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested
by the Administrative Agent) to the extent invoiced at least two Business Days prior to the Closing
Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a final settling of
accounts between the Company and the Administrative Agent).
(d) Prior to or substantially contemporaneously with the initial funding of Initial Term
Loans on the Closing Date, the closing of the Specified Acquisition shall have been consummated, in
all material respects in accordance with the Acquisition Agreement (without giving effect to any
amendments, supplements, waivers or other modifications to or of the Acquisition Agreement that are
materially adverse to the interests of the Lenders or the Joint Bookrunners in their capacities as such,
except to the extent that the Joint Bookrunners have consented thereto).
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(e) The Specified Representations of the Borrowers and each other Loan Party, and the
Acquisition Agreement Representations, shall be true and correct in all material respects on and as of
the Closing Date (other than to the extent any representation and warranty is already qualified by
materiality, in which case, such representation and warranty shall be true and correct as of such date),
except to the extent that such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct in all material respects as of such earlier date (other than to the
extent any representation and warranty is already qualified by materiality, in which case, such
representation and warranty shall be true and correct as of such earlier date).
(f) Prior to or substantially contemporaneously with the initial funding of Initial Term
Loans on the Closing Date, the closing of the Specified Equity Financing shall have been consummated
and the Company shall have received the Net Proceeds thereof.
Each Borrowing of Initial Term Loans by a Borrower hereunder shall constitute a representation
and warranty by such Borrower as of the Closing Date that the conditions contained in this Section 4.01
have been satisfied.
4.02. Conditions to Other Extensions of Credit. The agreement of each Lender, each Issuing
Lender and the Swingline Lender to make any extension of credit requested to be made by it with respect
to the Revolving Facility and Incremental Facilities on any date (including its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) The representations and warranties of the Borrowers and each other Loan Party
contained in Article V or any other Loan Document, or which are contained in any document furnished
at any time under or in connection herewith or therewith, shall be true and correct in all material
respects on and as of such Borrowing Date with respect to such Term Loans and such Revolving
Extensions of Credit (other than to the extent any representation and warranty is already qualified by
materiality, in which case, such representation and warranty shall be true and correct as of such date),
except to the extent that such representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct in all material respects as of such earlier date (other than to the
extent any representation and warranty is already qualified by materiality, in which case, such
representation and warranty shall be true and correct as of such earlier date) and except that for
purposes of this Section 4.02, the representations and warranties contained in Sections 5.05(a) and (b)
shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b),
respectively.
(b) No Default or Event of Default shall exist, or would result from such proposed
extension of credit or from the application of the proceeds thereof.
(c) If the applicable Borrower is a Designated Borrower, then the conditions of
Section 2.25 to the designation of such Borrower as a Designated Borrower shall have been met to the
satisfaction of the Administrative Agent.
(d) In the case of an extension of credit denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an
Alternative Currency) or the Issuing Lender (in the case of any Letter of Credit or Bankers’ Acceptance
to be denominated in an Alternative Currency) would make it impracticable for such extension of credit
to be denominated in the relevant Alternative Currency.
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Each Borrowing by and issuance of a Letter of Credit or BA on behalf of a Borrower hereunder
shall constitute a representation and warranty by such Borrower as of the date of such extension of credit
that the conditions contained in this Section 4.02 have been satisfied.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Administrative Agent and the Lenders that:
5.01. Existence, Qualification and Power. Each Loan Party and each Subsidiary thereof (a)
is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on
its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is
a party, (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires
such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect and (d) if applicable, has its
center of main interest (COMI) in the jurisdiction of its incorporation.
5.02. Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any
of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or
the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to
which such Person is a party or affecting such Person or the properties of such Person or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (c) violate any Law, except in the case of clause
(b)(i) for such violations which could not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect.
5.03. Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other
Person is necessary or required in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan Document, except for (a) the
approvals, consents, exemptions, authorizations, actions, notices and filings that have been duly obtained,
taken, given or made and are in full force and effect, and (b) those approvals, consents, exemptions,
authorizations or other actions, notices or filings, the failure of which to obtain or make would not
reasonably be expected to have a Material Adverse Effect.
5.04. Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal,
valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto
in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights
generally.
5.05. Financial Statements; No Material Adverse Effect; No Internal Control Event.
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(a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted therein;
(ii) fairly present the financial condition of the Company and its Subsidiaries as of the date thereof and
their results of operations for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the Company and its Subsidiaries as
of the date thereof, including liabilities for taxes, material commitments and Indebtedness, to the extent
required to be shown in accordance with GAAP.
(b) The unaudited consolidated and consolidating balance sheets of the Company and its
Subsidiaries dated June 30, 2016 and September 30, 2016 and the related consolidated statements of
income or operations, shareholders’ equity and cash flows and consolidating statements of income or
operations for the fiscal quarters ended on such dates (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted therein,
and (ii) fairly present the financial condition of the Company and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii),
to the absence of footnotes and to normal year-end audit adjustments. Schedule 5.05 sets forth all
material indebtedness and other liabilities, direct or contingent, of the Company and its consolidated
Subsidiaries as of the date of such financial statements, including liabilities for taxes, material
commitments and Indebtedness.
(c) Since the date of the Audited Financial Statements, 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.
(d) To the best knowledge of the Company, no Internal Control Event exists or has
occurred since the date of the Audited Financial Statements that has resulted in or could reasonably be
expected to result in a misstatement in any material respect, in any financial information delivered or to
be delivered to the Administrative Agent or the Lenders, of (i) covenant compliance calculations
provided hereunder or (ii) the assets, liabilities, financial condition or results of operations of the
Company and its Subsidiaries on a consolidated basis.
(e) The consolidated and consolidating forecasted balance sheet and statements of income
and consolidated cash flows of the Company and its Subsidiaries delivered pursuant to Section 6.01(c)
and Section 6.01(c) of the Existing Credit Agreement were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were believed to be reasonable at the time of delivery of
such forecasts.
5.06. Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Company, threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Company or any of its Subsidiaries or against any of their
properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document,
or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06,
either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.07. No Default. Neither any Loan Party nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result
from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
5.08. Ownership of Property; Liens.
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(a) Each of the Company and each Subsidiary has good record and marketable title in fee
simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of
its business, except for such defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The property of the Company and its Subsidiaries is
subject to no Liens, other than Liens permitted by Section 7.01.
(b) As of the Closing Date, Schedule 5.08 annexed hereto contains a true, accurate and
complete list of all fee and leasehold real property assets of the Company and its Subsidiaries.
5.09. Environmental Compliance. The Company and its Subsidiaries conduct in the ordinary
course of business a review of the effect of existing Environmental Laws and claims alleging potential
liability or responsibility for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof the Company has reasonably concluded that, except as
specifically disclosed in Schedule 5.09, such Environmental Laws and claims could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
5.10. Insurance. The properties of the Company and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Company, in such amounts
(after giving effect to any insurance coverage from CM Insurance Company, Inc. compatible with the
following standards) with such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in localities where the Company
or the applicable Subsidiary operates.
5.11. Taxes. The Company and its Subsidiaries have filed all Federal, state and other material
Tax returns and reports required to be filed, and have paid all Taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves have been provided in accordance with GAAP. As of the
Closing Date, no Tax Lien has been filed against the Company, any Subsidiary, or any assets of either
that could reasonably be expected to have a Material Adverse Effect. There is no proposed tax
assessment against the Company or any Subsidiary that would, if made, have a Material Adverse Effect.
Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.
5.12. ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Pension Plan that is intended to be a qualified
plan under Section 401(a) of the Code has received a favorable determination letter from the Internal
Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code
and the trust related thereto has been determined by the Internal Revenue Service to be exempt from
federal income tax under Section 501(a) of the Code, or an application for such a letter is currently
being processed by the Internal Revenue Service. To the best knowledge of the Borrowers, nothing has
occurred that would prevent or cause the loss of, such tax-qualified status.
(b) There are no pending or, to the best knowledge of the Borrowers, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
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(c) Except as could not reasonably be expected, either individually or in the aggregate, to
have a Material Adverse Effect, (i) no ERISA Event has occurred, and neither the Borrowers nor any
ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to
constitute or result in an ERISA Event; (ii) each Borrower and each ERISA Affiliate has met all
applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no
waiver of the minimum funding standards under the Pension Funding Rules has been applied for or
obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment
percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither the Borrowers
nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to
cause the funding target attainment percentage for any such plan to drop below 60% as of the most
recent valuation date; (iv) except as set forth on Schedule 5.12(c) hereto, neither the Borrowers nor any
ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and
there are no premium payments which have become due that are unpaid; (v) neither the Borrowers nor
any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section
4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor
by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to
cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.
(d) Neither the Borrowers nor any ERISA Affiliate maintains or contributes to, or has any
unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan other
than (i) on the Closing Date, those listed on Schedule 5.12(d) hereto and (ii) thereafter, Pension Plans
not otherwise prohibited by this Agreement.
(e) With respect to each scheme or arrangement mandated by a government other than the
United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee
benefit plan maintained or contributed to by any Loan Party or any Subsidiary of any Loan Party that is
not subject to United States Law (a “Foreign Plan”):
(i) any employer and employee contributions required by Law or by the terms of
any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if
applicable, accrued, in accordance with normal accounting practices;
(ii) the fair market value of the assets of each funded Foreign Plan, the liability of
each insurer for any Foreign Plan funded through insurance or the book reserve established for
any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for
the accrued benefit obligations with respect to all current and former participants in such Foreign
Plan according to the actuarial assumptions and valuations most recently used to account for such
obligations in accordance with applicable generally accepted accounting principles; and
(iii) each Foreign Plan required to be registered has been registered and has been
maintained in good standing with applicable regulatory authorities.
5.13. Subsidiaries; Equity Interests. As of the Closing Date, the Loan Parties have no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding
Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are
owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens.
As of the Closing Date, the Loan Parties no equity investments in any other corporation or entity other
than those specifically disclosed in Part (b) of Schedule 5.13. All of the outstanding Equity Interests in
the Company have been validly issued and are fully paid and nonassessable.
5.14. Margin Regulations; Investment Company Act; Other Regulations.
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(a) No Borrower is engaged or will engage, principally or as one of its important activities,
in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by
the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the
application of the proceeds of each Borrowing or drawing under each Letter of Credit or Banker’s
Acceptance, not more than 25% of the value of the assets (either of any Borrower only or of any
Borrower and its Subsidiaries on a consolidated basis) will be margin stock. If requested by any Lender
or the Administrative Agent, the applicable Borrower will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR
Form U-1, as applicable, referred to in Regulation U.
(b) None of the Company, any Person Controlling the Company, or any Subsidiary is
required to be registered as an “investment company” under the Investment Company Act of 1940, as
amended.
(c) No Loan Party is subject to regulation under any Law (other than Regulation X issued
by the FRB) that limits its ability to incur Indebtedness.
5.15. Disclosure. As of the Closing Date, the Company has disclosed to the Administrative
Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of
its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as
modified or supplemented by other information so furnished) contains any material misstatement of fact
or omits to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with respect to projected
financial information, the Company represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time.
5.16. Compliance with Laws. Each Loan Party and each Subsidiary thereof is in compliance
in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of Law or
order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.17. Taxpayer Identification Number; Other Identifying Information. The true and
correct U.S. taxpayer identification number of the Company and each Designated Borrower that is a
Domestic Subsidiary and a party hereto on the Closing Date is set forth on Schedule 5.17. The true and
correct unique identification number (if any) of each Designated Borrower that is a Foreign Subsidiary
and a party hereto on the Closing Date that has been issued by its jurisdiction of organization and the
name of such jurisdiction are set forth on Schedule 5.17.
5.18. Intellectual Property; Licenses, Etc. Except as could not reasonably be expected to
result in a Material Adverse Effect, the Company and its Subsidiaries own, or possess the right to use, all
of the trademarks, service marks, logos, domain names, trade names, copyrights, patents, patent rights,
know-how, trade secrets, proprietary confidential information, franchises, licenses and other intellectual
property rights, and all registrations and applications for registration of the foregoing (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses, without conflict
with the rights of any other Person and free of clear of all Liens, other than Liens permitted under Section
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7.01. The operation of the businesses of the Company or any Subsidiary as currently conducted does not
infringe upon any rights held by any other Person, except for any such infringement which, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Set
forth on Schedule 5.18 hereto is a complete list of all patents, trademarks and copyrights, and all
applications for registration of same, owned by the Company and its Subsidiaries as of the Closing Date,
and all such items are valid and subsisting as of such date. No action, suit, proceeding, claim or dispute
regarding any of the foregoing is pending or, to the best knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental Authority which, either
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.19. Perfection of Security Interest. The Security Documents are effective to create in favor
of the Administrative Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest
in the Collateral described in each respective document and the proceeds thereof. In the case of the
pledged stock described in the U.S. Security Agreement or each applicable Pledge Agreement, when
stock certificates representing pledged stock are delivered to the Administrative Agent (together with a
properly completed and signed stock power or endorsement), and in the case of other Collateral described
in each Security Document, when financing statements and other filings specified on Schedule 5.19 in
appropriate form are filed in the offices specified on Schedule 5.19, the Security Documents shall
constitute fully perfected Liens on, and security interests in, all rights, titles and interests of the Loan
Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each case prior and
superior in right to any other Person (except, in the case of Collateral other than pledged stock, Liens
permitted by Section 7.01).
5.20. Machinery and Equipment. All machinery and equipment of each of the Company and
its Subsidiaries is in good operating condition and repair, and all necessary replacements of and repairs
thereto have be made so as to preserve and maintain the value and operating efficiency of such machinery
and equipment.
5.21. Solvency. Upon and immediately after consummation of the transactions contemplated
hereby, the Loan Parties, taken as a whole, are and will continue to be Solvent.
5.22. Bank Accounts. Schedule 5.22 lists all banks and other financial institutions at which
the Company and each of its Domestic Subsidiaries maintains deposits and/or other accounts as of the
Closing Date, and such Schedule correctly identifies the name and address of each depository, the name
in which the account is held, a description of the purpose of the account, and the complete account
number.
5.23. Obligations as Senior Debt. The Obligations are “Designated Senior Debt” (if
applicable), “Senior Debt”, “Senior Indebtedness”, “Guarantor Senior Debt” or “Senior Secured
Financing” (or any comparable term) under, and as defined in, any indenture or document governing any
subordinated Indebtedness any document governing subordinated Indebtedness incurred by a Loan Party
that is contractually subordinated in right of payment to the prior payment of all Obligations of such Loan
Party.
5.24. Use of Proceeds. The Company and its Subsidiaries will use the proceeds of the Loans
for the purposes specified in Section 6.11 and not for any other purpose.
5.25. Representations as to Foreign Loan Parties. Each of the Company and each Foreign
Loan Party represents and warrants to the Administrative Agent and the Lenders that:
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(a) Such Foreign Loan Party is subject to civil and commercial Laws with respect to its
obligations under this Agreement and the other Loan Documents to which it is a party (collectively as
to such Foreign Loan Party, the “Applicable Foreign Loan Party Documents”), and the execution,
delivery and performance by such Foreign Loan Party of the Applicable Foreign Loan Party Documents
constitute and will constitute private and commercial acts and not public or governmental acts. Neither
such Foreign Loan Party nor any of its property has any immunity from jurisdiction of any court or
from any legal process (whether through service or notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Foreign Loan
Party is organized and existing in respect of its obligations under the Applicable Foreign Loan Party
Documents.
(b) The Applicable Foreign Loan Party Documents are in proper legal form under the
Laws of the jurisdiction in which such Foreign Loan Party is organized and existing for the enforcement
thereof against such Foreign Loan Party under the Laws of such jurisdiction, and to ensure the legality,
validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Loan Party
Documents. It is not necessary to ensure the legality, validity, enforceability, priority or admissibility
in evidence of the Applicable Foreign Loan Party Documents that the Applicable Foreign Loan Party
Documents be filed, registered or recorded with, or executed or notarized before, any court or other
authority in the jurisdiction in which such Foreign Loan Party is organized and existing, or that any
registration charge or stamp or similar tax be paid on or in respect of the Applicable Foreign Loan Party
Documents or any other document, except for (i) any such filing, registration, recording, execution or
notarization as has been made or is not required to be made until the Applicable Foreign Loan Party
Document or any other document is sought to be enforced and (ii) any charge or tax as has been timely
paid.
(c) The execution, delivery and performance of the Applicable Foreign Loan Party
Documents executed by such Foreign Loan Party are, under applicable foreign exchange control
regulations of the jurisdiction in which such Foreign Loan Party is organized and existing, not subject
to any notification or authorization except (i) such as have been made or obtained or (ii) such as cannot
be made or obtained until a later date (provided that any notification or authorization described in
clause (ii) shall be made or obtained as soon as is reasonably practicable).
5.26. Anti-Corruption Laws and Sanctions. The Company has implemented and maintains
in effect policies and procedures designed to ensure compliance by the Company, its Subsidiaries and
their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable
Sanctions, and the Company, its Subsidiaries and their respective officers and employees, and to the
knowledge of the Company its directors and agents, are in compliance with Anti-Corruption Laws and
applicable Sanctions in all material respects and are not knowingly engaged in any activity that would
reasonably be expected to result in the Company being designated as a Sanctioned Person. None of (a)
the Company, any Subsidiary or any of their respective directors, officers or employees, or (b) to the
knowledge of the Company, any agent of the Company or any Subsidiary that will act in any capacity in
connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Loan,
Letter of Credit or Bankers’ Acceptance, use of proceeds or other transaction contemplated by this
Agreement will violate Anti-Corruption Laws or applicable Sanctions.
5.27. EEA Financial Institutions. No Loan Party is an EEA Financial Institution.
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ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit or Bankers’ Acceptance shall remain
outstanding, the Company shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02, and 6.03) cause each Subsidiary to:
6.01. Financial Statements. Deliver to the Administrative Agent and each Lender, in form
and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Company and its Subsidiaries, a consolidated and consolidating balance sheet of the Company and
its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows and consolidating statements of income or operations
for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to
be audited and accompanied by (i) a report and opinion of Ernst & Young LLP or another Registered
Public Accounting Firm of nationally recognized standing reasonably acceptable to the Required
Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing
standards and applicable Securities Laws and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit and (ii) an
opinion of such Registered Public Accounting Firm independently assessing the Company’s internal
controls over financial reporting in accordance with Item 308 of SEC Regulation S-K, PCAOB
Auditing Standard No. 2, and Section 404 of Xxxxxxxx-Xxxxx, and such consolidating statements to be
certified by the chief executive officer, chief financial officer, treasurer or controller of the Company to
the effect that such statements are fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Company and its Subsidiaries; provided, that such financial
statements and reports set forth in this Section 6.01(a) shall be deemed to be delivered upon the filing
with the SEC of the Company’s Form 10-K for the relevant fiscal year;
(b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company and its Subsidiaries, a consolidated and
consolidating balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, and
the related consolidated statements of income or operations, shareholders’ equity and cash flows and
consolidating statements of income or operations for such fiscal quarter and for the portion of the
Company’s fiscal year then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous
fiscal year, all in reasonable detail and certified by the chief executive officer, chief financial officer,
treasurer or controller of the Company as fairly presenting in all material respects the financial
condition, results of operations, shareholders’ equity and cash flows of the Company and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes provided, that such financial statements and reports set forth in this Section
6.01(b) shall be deemed to be delivered upon the filing with the SEC of the Company’s Form 10-Q for
the relevant fiscal quarter; and
(c) as soon as available, but in any event no later than 30 days after the start of each fiscal
year of the Company, budgets prepared by management of the Company, in form satisfactory to the
Administrative Agent, of consolidated balance sheets and statements of income or operations and
consolidated cash flows of the Company and its Subsidiaries on a quarterly basis for such fiscal year.
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As to any information contained in materials furnished pursuant to Section 6.02(c), the Company
shall not be separately required to furnish such information under clause (a) or (b) above, but the
foregoing shall not be in derogation of the obligation of the Company to furnish the information and
materials described in clauses (a) and (b) above at the times specified therein.
6.02. Certificates; Other Information. Deliver to the Administrative Agent and each Lender
(or, in the case of clause (f), to the relevant Lender), in form and detail satisfactory to the Administrative
Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred to in Sections 6.01(a)
and (b), a duly completed Compliance Certificate signed by the chief executive officer, chief financial
officer, treasurer or controller of the Company;
(b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors (or
the audit committee of the board of directors) of the Company by independent accountants in
connection with the accounts or books of the Company or any Subsidiary, or any audit of any of them;
(c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Company, and copies of all
annual, regular, periodic and special reports and registration statements which the Company may file or
be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and
not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(d) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities having an aggregate principal amount in excess of the Threshold Amount of
any Loan Party or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or
similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or
any other clause of this Section 6.02;
(e) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC
(or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other operational results of any
Loan Party or any Subsidiary thereof if, and only to the extent that, such Loan Party or Subsidiary may
provide such information in accordance with applicable Law;
(f) promptly, such additional information regarding the business, financial or corporate
affairs of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender may from time to time reasonably request; and
(g) only upon reasonable written request of the Administrative Agent, copies of any
documents described in Section 101(k) or 101(l) of ERISA that any Loan Party or any ERISA Affiliate
may request and receive with respect to any Multiemployer Plan or any documents described in Section
101(f) of ERISA that the administrator of any Pension Plan is required to provide.
Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead
Arrangers will make available to the Lenders and the Issuing Lender materials and/or information
provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on Intralinks or another similar electronic system (the “Platform”) and (b) certain of
the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-
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public information with respect to any of the Borrowers or their respective Affiliates, or the respective
securities of any of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. Each Borrower hereby agrees that (w) all Borrower
Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked
“PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have
authorized the Administrative Agent, the Joint Lead Arrangers, any Issuing Lender and the Lenders to
treat such Borrower Materials as not containing any material non-public information with respect to the
Borrowers or their respective securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.15); (y) all Borrower Materials marked “PUBLIC” are permitted to be
made available through a portion of the Platform designated “Public Side Information;” and (z) the
Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that
are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated
“Public Side Information.” For the avoidance of doubt, it is acknowledged and agreed that, as of the
Closing Date, none of the Lenders is a Public Lender.
6.03. Notices. Promptly after a Responsible Officer of any Borrower, or any other officer or
employee of any Borrower responsible for administering any of the Loan Documents or monitoring
compliance with any of the provisions thereof, in either case obtains knowledge thereof, notify the
Administrative Agent and each Lender of:
(a) the occurrence of any Default;
(b) any matter that has resulted or could reasonably be expected to result in a Material
Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual
Obligation of the Company or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Company or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding affecting the Company
or any Subsidiary, including pursuant to any applicable Environmental Laws;
(c) the occurrence of any ERISA Event;
(d) any material change in accounting policies or financial reporting practices by the
Company or any Subsidiary; and
(e) the determination by the Registered Public Accounting Firm providing the opinion
required under Section 6.01(a)(ii) (in connection with its preparation of such opinion) or the Company’s
determination at any time of the occurrence or existence of any Internal Control Event.
Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible
Officer of the Company setting forth details of the occurrence referred to therein and stating what action
the Company has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a)
shall describe with particularity any and all provisions of this Agreement and any other Loan Document
that have been breached.
6.04. Payment of Obligations. Pay and discharge as the same shall become due and payable,
all its obligations and liabilities, including (a) all material tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary; (b) all lawful claims which, if unpaid, would by Law
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become a Lien upon its property (other than a Lien permitted under Section 7.01); and (c) all
Indebtedness or Material Rental Obligation, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement evidencing such Indebtedness or
Material Rental Obligation.
6.05. Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect
its legal existence, center of main interest (COMI), and good standing, as applicable, under the Laws of
the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05; (b) take all
reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; (c) preserve or renew all of its registered patents, trademarks,
trade names and service marks, except to the extent that the non-preservation of any such patent,
trademark, trade name or service xxxx could not reasonably be expected to have a Material Adverse
Effect; and (d) maintain in effect and enforce policies and procedures designed to ensure compliance by
the Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti-
Corruption Laws and applicable Sanctions.
6.06. Maintenance of Properties. Except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect, (a) maintain, preserve and protect all of its properties and
equipment necessary in the operation of its business in good working order and condition, ordinary wear
and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof; and (c)
use the standard of care typical in the industry in the operation and maintenance of its facilities.
6.07. Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Company, insurance with respect to its properties and business against
loss or damage of the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts (after giving effect to any insurance coverage from CM
Insurance Company, Inc. compatible with the following standards) as are customarily carried under
similar circumstances by such other Persons and providing for not less than 30 days’ prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance.
6.08. Compliance with Laws, Organization Documents and Contractual Obligations. (a)
Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its business or property, except in such instances in which (1) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted; or (2) the failure to comply therewith could not reasonably be expected
to have a Material Adverse Effect and (b) comply with all Organization Documents and, except where the
failure to comply therewith could not reasonably be expected to have a Material Adverse Effect, all
material Contractual Obligations.
6.09. Books and Records. (a) Maintain proper books of record and account, in which full,
true and correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Company or such Subsidiary, as the case
may be; and (b) maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over the Company or such
Subsidiary, as the case may be.
6.10. Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties (provided that with respect
to any leased property, such inspection shall not violate the terms of the applicable lease), to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss
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its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the
expense of the Company and at such reasonable times during normal business hours and as often as may
be reasonably desired, upon reasonable advance notice to the Company; provided, however, that (i) unless
an Event of Default is continuing, no such authorized representatives shall so visit, inspect or examine
more than once in any calendar year, (ii) representatives of any Lender may do any of the forgoing, at its
own expense, at reasonable times during normal business hours upon reasonable advance notice to the
applicable Borrower and (iii) when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at the
expense of the Company at any time during normal business hours and without advance notice.
6.11. Use of Proceeds. Use the proceeds of the (a) Initial Term Loans to finance the
Transactions and pay Transaction Costs (it being understood that JPMorgan Chase Bank, N.A., in its
capacity as Administrative Agent, is irrevocably authorized to apply a portion of the Initial Term Loans to
settle any foreign currency exchange hedge arrangements entered into by the Company and JPMorgan
Chase Bank, N.A. in connection with the consideration for the Specified Acquisition) and (b) Revolving
Loans and any other Loans and Letters of Credit for (1) general corporate purposes, including working
capital, capital expenditures and other lawful corporate purposes and (2) to finance acquisitions permitted
pursuant to Section 7.02.
6.12. Additional Guarantors and Pledgors.
(a) Notify the Administrative Agent at the time that any Person becomes a Subsidiary and
promptly thereafter (and in any event within 30 days (or such longer period as the Administrative Agent
may reasonably agree in its sole discretion), (i) provided that such Subsidiary is a Domestic Subsidiary
and a Significant Subsidiary, cause such Person to (x) guarantee all Obligations, by executing and
delivering to the Administrative Agent a Guarantee or such other document as the Administrative Agent
shall deem reasonably appropriate for such purpose and (y) secure all of its Obligations as described in
Section 2.26 by providing the Administrative Agent with a first priority perfected security interest
(subject only to Liens permitted by Section 7.01 entitled to priority under applicable Law) on its assets
and by executing a security agreement and such other documents as the Administrative Agent shall
deem reasonably appropriate for such purpose, (ii) if such Subsidiary is a Domestic Subsidiary, a
Foreign Subsidiary of a Foreign Loan Party organized in the same jurisdiction as any Foreign Loan
Party or a first-tier Foreign Subsidiary of a Domestic Loan Party, the parent entity of such Person shall
pledge the equity of such Subsidiary as security for the Obligations; provided that, such equity pledge
of a Foreign Subsidiary of a Foreign Loan Party shall secure only Foreign Loan Party Obligations;
provided further that, such equity pledge or security interest in a Foreign Subsidiary of a Domestic
Loan Party shall be limited to 65% of the capital stock of such Foreign Subsidiary to the extent the
pledge or security interest secures Domestic Loan Party Obligations, and (iii) deliver to the
Administrative Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and,
to the extent requested, favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the documentation referred to in
clauses (i) and (ii)), all in form, content and scope reasonably satisfactory to the Administrative Agent.
For the avoidance of doubt, no actions shall be required to perfect any pledge of the equity of a Foreign
Subsidiary of a Domestic Loan Party under the laws of the jurisdiction where such Foreign Subsidiary
is organized.
(b) Prior to any Domestic Subsidiary becoming a Designated Borrower (i) cause such
Person to (x) guarantee all Obligations by executing and delivering to the Administrative Agent a
Guarantee or such other document as the Administrative Agent shall deem appropriate for such purpose
and (y) secure all of its Obligations as described in Section 2.26 by providing the Administrative Agent
with a first priority perfected security interest (subject only to Liens permitted by Section 7.01 entitled
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to priority under applicable Law) on its assets and executing a security agreement and such other
documents as the Administrative Agent shall deem appropriate for such purpose, (ii) the parent entity of
such Person shall pledge the equity of such Subsidiary as security for the Obligations (except to the
extent the parent entity is not a U.S. Person, in which case the pledge of the equity of such Subsidiary
shall serve as security of only Foreign Loan Party Obligations), and (iii) deliver to the Administrative
Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and, to the extent
requested, favorable opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation referred to in clauses (i) and
(ii)), all in form, content and scope reasonably satisfactory to the Administrative Agent.
(c) Prior to any Foreign Subsidiary becoming a Designated Borrower after the Closing
Date, (i) cause such Person and such Person’s Subsidiaries to (x) guarantee all Obligations (or, if such
Person is a Foreign Subsidiary and (A) executing a Guarantee would result in a materially adverse tax
consequence to the Loan Parties, all Foreign Loan Party Obligations or (B) if the Company determines
in good faith that a guarantee of all Obligations or all Foreign Obligations by any such Person would
not be advisable due to local solvency or similar restrictions, all Obligations of its parent that is a
Foreign Borrower) by executing and delivering to the Administrative Agent a Guarantee or such other
document as the Administrative Agent shall deem reasonably appropriate for such purpose and (y)
secure all of their Obligations by providing the Administrative Agent with a first priority perfected
security interest (subject only to Liens permitted by Section 7.01 entitled to priority under applicable
Law) on its assets and by executing a security agreement and such other documents as the
Administrative Agent shall deem reasonably appropriate for such purpose, (ii) the parent entity of such
Person shall pledge the equity of such Subsidiary as security for the Obligations; provided that, if the
Foreign Subsidiary is not a first-tier Foreign Subsidiary of a Domestic Loan Party, the pledge of the
equity of such Subsidiary shall serve only as security of Foreign Loan Party Obligations; provided
further that, if the Foreign Subsidiary is a first-tier Foreign Subsidiary of a Domestic Loan Party, such
equity pledge shall be limited to 65% of the capital stock of such first-tier Foreign Subsidiary to the
extent the pledge secures Domestic Loan Party Obligations (for the avoidance of doubt, to the extent
the equity pledge of the first-tier Foreign Subsidiary secures Foreign Loan Party Obligations, such
limitation shall not apply), and (iii) deliver to the Administrative Agent documents of the types referred
to in clauses (iii) and (iv) of Section 4.01(a) and, to the extent requested, favorable opinions of counsel
to such Person (which shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clauses (i) and (ii)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.
(d) Prior to any Subsidiary becoming a Designated Borrower, each Borrower shall have
executed a Guarantee, in form and substance satisfactory to the Administrative Agent; provided that,
any Guarantee provided by a Foreign Borrower shall be limited to a guarantee of the Foreign Loan
Party Obligations.
(e) Notwithstanding anything to the contrary contained in this Section 6.12, the Company
may exclude any Foreign Subsidiary of any Foreign Borrower from the requirement that such
Subsidiary execute a Guarantee and a security agreement to the extent and for so long as (i) such
Foreign Borrower and its Foreign Subsidiaries that have executed a Guarantee and a security agreement
account for at least 50% of the assets of such Foreign Borrower and its Foreign Subsidiaries and (ii) no
Loan proceeds are made available to such Foreign Subsidiary.
6.13. Approvals and Authorizations. Maintain all authorizations, consents, approvals and
licenses from, exemptions of, and filings and registrations with, each Governmental Authority of the
jurisdiction in which each Foreign Loan Party is organized and existing, and all approvals and consents of
each other Person in such jurisdiction, in each case that are required in connection with the Loan
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Documents, except where the failure to so maintain or comply therewith could not reasonably be expected
to have a Material Adverse Effect.
6.14. Environmental Laws. (a) Comply in all material respects with, and ensure compliance
in all material respects by all tenants and subtenants, if any, with, all applicable Environmental Laws, and
obtain and comply in all material respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
6.15. Centre of Main Interest and Establishment. Each of the Dutch Borrower and the
German Borrower shall maintain its centre of main interest in the Netherlands and Germany, respectively,
for the purposes of the Insolvency Regulation.
6.16. Certain Post-Closing Obligations. As promptly as practicable, and in any event within
90 days after the Closing Date (or such longer period as the Administrative Agent may reasonably agree
in its sole discretion), the Company and each other Loan Party will deliver all documents and take all
actions set forth on Schedule 6.16 or that would have been required to be delivered or taken on the
Closing Date but for the last sentence of Section 4.01(a).
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit or Bankers’ Acceptance shall remain
outstanding, the Company shall not, nor shall it permit any Subsidiary to, directly or indirectly:
7.01. Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets
or revenues, whether now owned or hereafter acquired, other than the following:
(a) Liens created pursuant to any Loan Document;
(b) Liens existing on the Closing Date and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount
secured or benefited thereby is not increased except as contemplated by Section 7.03(b), (iii) the direct
or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.03(b);
(c) Liens for Taxes, assessments or governmental charges not yet due or which are being
contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business securing obligations which are not overdue for a period of
more than 60 days or which are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the books of the applicable
Person;
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(e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;
(f) pledges or deposits to secure the performance of tenders, bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;
(g) Liens (i) securing judgments for the payment of money not constituting an Event of
Default under Section 8.01(h) or (ii) other than Liens on the Collateral, required to protect or enforce
any rights in any administrative, arbitration or other court proceedings in the ordinary course of
business;
(h) Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such
Liens do not at any time encumber any property other than the property financed by such Indebtedness
except that individual financings of equipment provided by one lender of the type permitted under
Section 7.03(e) may be cross collateralized to other financings of equipment provided by such lender of
the type permitted under Section 7.03(e), and (ii) the Indebtedness secured thereby does not exceed the
cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(i) Liens (other than Liens on Equity Interests in any Subsidiary) securing Indebtedness
permitted under Section 7.03(l) so long as such Indebtedness secured by such Liens does not exceed
$20,000,000 at any time;
(j) Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any other Subsidiary or becomes a Subsidiary; provided that such
Liens were not created in contemplation of such merger, consolidation or Investment and do not extend
to any assets other than those of the Person merged into or consolidated with the Company or any
Subsidiary or acquired by the Company or any Subsidiary, and the applicable Indebtedness secured by
such Lien is permitted under Section 7.03(o);
(k) Liens in favor of customs and revenue authorities arising as a matter of Law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of
business;
(l) Liens consisting of an agreement to Dispose of any property in a Disposition permitted
under Section 7.05, in each case, solely to the extent such Disposition would have been permitted on the
date of the creation of such Lien; provided that such Liens encumber only the applicable assets pending
consummation of the Disposition;
(m) (A) leases, subleases or non-exclusive licenses or sublicenses of IP Rights granted to
other Persons in the ordinary course of business and substantially consistent with past practice which do
not (x) interfere in any material respect with the business of the Company and its Subsidiaries, taken as
a whole, or (y) secure any Indebtedness, and (B) the rights reserved or vested in any Person by the
terms of any lease, license, franchise, grant or permit held by the Company or its Subsidiaries;
(n) Permitted Encumbrances;
(o) (A) statutory and common law rights of set-off and other similar rights and remedies as
to deposits of cash, securities, commodities and other funds in favor of banks, other depositary
institutions, securities or commodities intermediaries or brokerages and (B) Liens of a collecting bank
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arising in the ordinary course of business under Section 4-208 of the UCC in effect in the relevant
jurisdiction and covering only the items being collected upon;
(p) Liens securing Indebtedness represented by financed insurance premiums in the
ordinary course of business consistent with past practice, provided that such Liens do not extend to any
property or assets other than the corresponding insurance policies being financed; and
(q) Liens on accounts receivable, the proceeds thereof, and certain ancillary rights relating
thereto of the Company and its Subsidiaries arising under “supply chain financing programs” permitted
under Section 7.05(p) of this Agreement;
(r) Liens arising from precautionary UCC financing statements or similar filings made in
respect of operating leases entered into by the Company or any of its Subsidiaries;
(s) Liens created pursuant to the general conditions of a bank operating in the Netherlands
based on the general conditions drawn up by the Netherlands Bankers' Association (Nederlandse
Vereniging xxx Xxxxxx) and the Consumers Union (Consumentenbond);
(t) Liens arising in the ordinary course of business on any deposit account or other funds
maintained with depository institutions securing any arrangement for treasury, depositary or cash
management services with respect to such funds provided to the Company or any of its Subsidiaries in
the ordinary course of business; provided that such deposit accounts or funds are not established or
deposited for the purpose of providing collateral for any Indebtedness and are not subject to restrictions
on access by the Company or any Subsidiary in excess of those required by applicable banking
regulations;
(u) Liens arising in the ordinary course of business in connection with worker’s
compensation, unemployment insurance, old age pensions and social security benefits and similar
statutory and regulatory obligations; and
(v) Liens on the Collateral securing Incremental Equivalent Debt permitted under Section
7.03(s) on a pari passu or junior basis with the Liens on the Collateral securing the Obligations;
provided that a trustee, collateral agent, security agent or other Person acting on behalf of the holders of
such Indebtedness has entered into an Intercreditor Agreement.
7.02. Investments. Make or hold any Investments, except:
(a) Investments held by the Company or such Subsidiary in the form of cash equivalents or
short-term marketable debt securities;
(b) Investments of a Loan Party in any of the Company’s Subsidiaries that are not
Domestic Loan Parties so long as after giving pro forma effect to such Investment, the Total Leverage
Ratio as of the end of the most recently ended fiscal quarter for which financial statements have been
delivered shall not be greater than 3.00:1.00; provided that if at the time of any Investment, and after
giving pro forma effect thereto, the Total Leverage Ratio as of the end of the most recently ended fiscal
quarter for which financial statements have been delivered would be greater than 3.00:1.00, additional
Investments shall nonetheless be permitted so long as the aggregate amount of such Investments
consummated in reliance on this proviso shall not exceed $20,000,000 in any fiscal year;
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(c) advances to officers, directors and employees of the Company and Subsidiaries in an
aggregate amount not to exceed $500,000 at any time outstanding, for travel, entertainment, relocation
and analogous ordinary business purposes;
(d) Investments of the Company in any Domestic Loan Party and Investments of any
Subsidiary in the Company or in a Domestic Loan Party;
(e) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;
(f) Guarantees permitted by Section 7.03;
(g) Investments held in the investment portfolio of CM Insurance Company, Inc. of the
type and in amounts in the ordinary course of business of CM Insurance Company, Inc. and consistent
with past practices;
(h) the acquisition of the assets or business of any other Person, or of a division or line of
business of any other Person, or of all or substantially all of the Equity Interests of any other Person
(each purchase or other acquisition made in accordance with this Section 7.02(h), a “Permitted
Acquisition”), so long as (i) immediately prior to and after the making of such acquisition, and after
giving effect thereto, no Default shall have occurred and be continuing, (ii) any such assets acquired
shall be utilized in, and if the acquisition involves a merger, amalgamation, consolidation or stock
acquisition, the target which is the subject of such acquisition shall be engaged in, the same line of
business as the Borrowers, (iii) the board of directors or similar governing body of the target subject to
such acquisition has approved such acquisition, (iv) if the acquisition is an acquisition of Equity
Interests, the Person being acquired shall become a Subsidiary of the Company and such Subsidiary
shall (x) become a Loan Party and (y) provide security and a guarantee to the Administrative Agent and
the Lenders, in each case to the extent required under and in accordance with Section 6.12, (v) the
Total Leverage Ratio as of the end of the most recently ended fiscal quarter for which financial
statements have been delivered, calculated on a pro forma basis after giving effect to such acquisition,
shall not be greater than 3.50:1.00; provided that if at the time of any such acquisition, and after giving
pro forma effect thereto, the Total Leverage Ratio as of the end of the most recently ended fiscal quarter
for which financial statements have been delivered would be greater than 3.50:1.00, such acquisition
shall nonetheless be permitted so long as the aggregate amount of such acquisitions consummated in
reliance on this proviso shall not exceed $20,000,000 in any fiscal year, (vi) at least five (5) Business
Days prior to making such acquisition, the Company shall have furnished the Administrative Agent
with (x) a Compliance Certificate, in form and substance satisfactory to the Administrative Agent,
demonstrating compliance with the conditions set forth in clause (v) above (which Compliance
Certificate shall, for the avoidance of doubt, be deemed to be delivered pursuant to Section 6.02(a) for
purposes of determining the Applicable Rate upon the consummation of the relevant Permitted
Acquisition), and (y) then-current draft copies of the purchase and sale material documents;
(i) Investments of any Subsidiary that is not a Domestic Loan Party in any other
Subsidiary that is not a Domestic Loan Party;
(j) Investments existing on the date hereof (each an “Existing Investment”) and any
renewal, reinvestment or extension of an Existing Investment upon substantially similar terms as those
in effect on the date hereof (each Existing Investment as so modified, a “Modified Investment”);
provided that the aggregate amount of the Modified Investment does not exceed that of the applicable
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preceding Existing Investment unless such additional Investment amount is otherwise permitted by this
Section 7.02 (without reliance on this Section 7.02(j));
(k) Investments arising out of the receipt by the Company or any Subsidiary of promissory
notes and other non-cash consideration for the sale of assets permitted under Section 7.05;
(l) deposits made to secure the performance of leases, licenses or contracts in the ordinary
course of business;
(m) Investments held by Persons whose Equity Interests or assets are acquired in a
Permitted Acquisition after the Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such Permitted Acquisition and were in existence on the date of
such Permitted Acquisition;
(n) Investments necessary to consummate the Specified Acquisition; and
(o) Investments not in excess of the Available Amount that is Not Otherwise Applied as in
effect immediately prior to the time of making of such Investment, provided that the Total Leverage
Ratio, calculated on a pro forma basis as of the end of the most recently ended fiscal quarter for which
financial statements have been delivered and giving effect to such Investments shall not exceed
3.50:1.00.
7.03. Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by
an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder and (ii) the terms relating to the obligors and guarantors of such
Indebtedness, the principal amount, amortization, maturity, collateral (if any) and subordination (if
any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or
extending Indebtedness, and of any agreement entered into and of any instrument issued in connection
therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms
of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or
extended and the interest rate applicable to any such refinancing, refunding, renewing or extending
Indebtedness does not exceed the then applicable market interest rate;
(c) Guarantees of the Company or any Guarantor in respect of Indebtedness otherwise
permitted hereunder of the Company or any Domestic Loan Party;
(d) obligations (contingent or otherwise) of the Company or any Subsidiary existing or
arising under any Swap Contract, provided that such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for purposes of speculation or
taking a “market view;”
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(e) Indebtedness of the Company in respect of Capital Lease Obligations, Synthetic Lease
Obligations, purchase money obligations, and any Attributable Indebtedness with respect to any sale-
leaseback transaction, for fixed or capital assets within the limitations set forth in Section 7.01(h);
provided, however, that (i) the aggregate amount of such Indebtedness (other than Indebtedness in
respect of the PILOT Leases) at any one time outstanding shall not exceed $15,000,000 and (ii) the
aggregate amount of Indebtedness in respect of the PILOT Leases shall not exceed $11,000,000;
(f) unsecured Indebtedness so long as (i) immediately prior to and after the incurrence of
such Indebtedness, and after giving effect thereto, no Default shall have occurred and be continuing, (ii)
the documents relating to such Indebtedness are provided to the Administrative Agent prior to the
closing of the incurrence of such Indebtedness (with drafts to be provided a reasonable time in advance
of such closing), (iii) such documents, and the terms and conditions of such Indebtedness, are
reasonably acceptable to the Administrative Agent and (iv) the Company demonstrates that, after giving
pro forma effect to the incurrence of such Indebtedness, it shall be in compliance with the financial
covenants set forth in Section 7.11 (as would be in effect if the Covenant Trigger had occurred on the
date of incurrence of such Indebtedness);
(g) intercompany loans among the Company and the Loan Parties which are Domestic
Subsidiaries; provided, that (i) the Investment corresponding to such Indebtedness is permitted pursuant
to Section 7.02 hereof, (ii) such intercompany loan is evidenced by a promissory note, (iii) such
promissory note is pledged to the Administrative Agent as security, and (iv) there are no restrictions
whatsoever on the ability of the applicable Loan Party to repay such loan;
(h) Indebtedness of any Foreign Subsidiary in an aggregate amount for all such
Indebtedness not to exceed the local currency equivalent (as determined by the Administrative Agent
from time to time by reference to the Spot Rate) of $30,000,000 in the aggregate at any one time
outstanding; provided that (i) the proceeds of such Indebtedness are used for working capital needs,
capital expenditures and the acquisition of assets or equity interests permitted pursuant to Section 7.02,
(ii) such Indebtedness is incurred solely by such Foreign Subsidiary, (iii) such Indebtedness is either
unsecured or, if such Foreign Subsidiary is not a Loan Party, is secured only by the assets of such
Foreign Subsidiary and (iv) except as permitted under Section 7.02(b) or Section 7.02(i), no guarantee
or other credit support of any kind is provided by any Person (including, without limitation, any Loan
Party) of or for such Indebtedness or any holder thereof; and provided, further, that the Company shall
notify the Administrative Agent in writing in advance prior to permitting such Foreign Subsidiary to
incur any Indebtedness in excess of $5,000,000 under this Section 7.03(h);
(i) Indebtedness of any Subsidiary owing to any Loan Party provided that the Investment
corresponding to such Indebtedness is permitted pursuant to Section 7.02(b);
(j) [Reserved];
(k) Indebtedness of the Company in respect of unsecured Guarantees issued by the
Company in the ordinary course of business in an amount not to exceed $35,000,000 at any time;
(l) other Indebtedness of the Company and its Domestic Subsidiaries that may be secured
in a principal amount outstanding at any one time not exceeding $20,000,000;
(m) Indebtedness of any Subsidiary that is not a Loan Party to any other Subsidiary that is
not a Loan Party;
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(n) Indebtedness consisting of the financing of insurance premiums in the ordinary course
of business consistent with past practice;
(o) Indebtedness of a Person whose Equity Interests or assets are acquired in a Permitted
Acquisition to the extent such Indebtedness is acquired or assumed by the Company or any Subsidiary
in such Permitted Acquisition thereof; provided that such Indebtedness was not incurred in connection
with, or in anticipation of, such Permitted Acquisition;
(p) Indebtedness in respect of netting services, overdraft protections, cash management and
similar arrangements in connection with deposit accounts, in each case in the ordinary course of
business;
(q) Indebtedness of the Company or any of its Subsidiaries in respect of workers’
compensation, severance, health and welfare benefits and similar obligations incurred in the ordinary
course of business; and
(r) any Indebtedness arising under a declaration of joint and several liability used for the
purpose of section 2:403 of the Dutch Civil Code (and any residual liability under such declaration
arising pursuant to section 2:404(2) of the Dutch Civil Code.
(s) Incremental Equivalent Debt; provided that (i) no Event of Default shall have occurred
and be continuing on the date of incurrence thereof, both immediately prior to and immediately after
giving effect to such incurrence and (ii) without the consent of the Required Lenders, the sum of (x) the
aggregate principal amount of the Incremental Facilities incurred pursuant to Section 2.24, and (y) the
aggregate outstanding principal amount of Incremental Equivalent Debt incurred in reliance on this
Section 7.03(s) shall not at the time of incurrence of any such Incremental Facilities or Incremental
Equivalent Debt (and after giving effect to such incurrence) exceed the Available Incremental Amount
at such time.
To the extent that the creation, incurrence or assumption of any Indebtedness could be
attributable to more than one subsection of this Section 7.03, the Company may allocate such
Indebtedness to any one or more of such subsections and in no event shall the same portion of
Indebtedness be deemed to utilize or be attributable to more than one item; provided that all Indebtedness
created pursuant to the Loan Documents shall be deemed to have been incurred in reliance on Section
7.03(a).
For purposes of determining compliance with the Dollar-denominated restrictions in any
subsection of Section 7.03 on the incurrence of Indebtedness, the Dollar-equivalent principal amount of
Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency
exchange rate in effect on the date on which such Indebtedness was incurred, in the case of term debt, or
first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to
modify, refinance, refund, renew or extend other Indebtedness denominated in a foreign currency, and
such modification, refinancing, refunding, renewal or extension would cause the applicable Dollar-
denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the
date of such modification, refinancing, refunding, renewal or extension, such Dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed the principal amount of such Indebtedness being modified, refinanced,
refunded, renewed or extended.
7.04. Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of
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its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as
no Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Company, provided that the Company shall be
the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided that (x) when
any Loan Party is merging with another Subsidiary, the Loan Party shall be the continuing or surviving
Person or the surviving Person shall become a Loan Party and (y) when a Domestic Loan Party is a
party to such merger, such Domestic Loan Party shall be the continuing or surviving person; and
(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Company or to another Subsidiary; provided that (x) if the transferor in
such a transaction is a Loan Party, then the transferee must either be the Company or a Loan Party or
become a Loan Party and (y) if the transferor is a Domestic Loan Party, then the transferee must be a
Domestic Loan Party.
7.05. Dispositions. Make any Disposition or enter into any agreement to make any
Disposition, except:
(a) Dispositions of obsolete or worn out property, or equipment that is damaged or no
longer used in the conduct of the business of the Borrower and its Subsidiaries, whether now owned or
hereafter acquired, in each case, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i) such property is
exchanged for credit against the purchase price of property used or useful in the business of the
Company and its Subsidiaries or (ii) the proceeds of such Disposition are reasonably promptly applied
to the purchase price of such property;
(d) Dispositions of property by any Subsidiary to the Company or to a wholly-owned
Subsidiary; provided that (i) if the transferor of such property is a Loan Party, the transferee thereof
must be a Loan Party or become a Loan Party and (ii) if the transferor is a Domestic Loan Party, then
the transferee must be a Domestic Loan Party;
(e) Dispositions permitted by Section 7.04;
(f) [Reserved];
(g) Dispositions by the Company and its Subsidiaries not otherwise permitted under this
Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result
from such Disposition and (ii) the aggregate book value of all property Disposed of in reliance on this
clause (g) in any fiscal year shall not exceed 5% of the total assets (calculated based on book value) of
the Company and its Subsidiaries, calculated as of the first day of such fiscal year;
(h) any Foreign Subsidiary of the Company may sell or dispose of Equity Interests in such
Subsidiary to qualify directors where required by applicable Law or to satisfy other requirements of
applicable Law with respect to the ownership of Equity Interests in Foreign Subsidiaries;
(i) the rental, lease or sublease of real property or equipment in the ordinary course of
business;
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(j) transfers of property subject to Recovery Events;
(k) Dispositions in the ordinary course of business consisting of the abandonment,
cancellation, non-renewal or discontinuance of IP Rights which, in the reasonable good faith
determination of the Company, is desirable in the conduct of the business of the Company and its
Subsidiaries and not materially disadvantageous to the interests of the Lenders;
(l) each Loan Party and each of its Subsidiaries may surrender or waive contractual rights
and settle or waive contractual or litigation claims in the ordinary course of business;
(m) the sale or discount without recourse of accounts receivable arising in the ordinary
course of business in connection with the compromise or collection thereof;
(n) to the extent constituting a Disposition, transactions otherwise expressly permitted
under Sections 7.01, 7.02 or 7.06;
(o) to the extent constituting a Disposition, the issuance by the Company of its Equity
Interests; and
(p) the sale from time to time by the Company and its Subsidiaries of accounts receivable,
the proceeds thereof, and certain ancillary rights relating thereto (as the scope of such ancillary rights
shall be approved by the Administrative Agent), in each case, pursuant to “supply chain financing
programs” entered into from time to time by the Company and its Subsidiaries; provided that (i) the
aggregate face amount of accounts receivable so sold in any month pursuant to all such programs does
not exceed an amount equal to 10% of the aggregate consolidated accounts receivable of the Company
and its Subsidiaries as of the last day of the immediately preceding month and (ii) such sales are
consummated on arm’s-length terms and the Company and/or its Subsidiaries receive reasonable
consideration therefor (as determined by the Company in its reasonable business judgment);
provided, however, that any Disposition pursuant to clauses (a) through (p) (except for Dispositions
pursuant to Sections 7.05(e), (h), (j), (k), (l) or (m)) shall be for fair market value.
7.06. Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall have
occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrowers, the Guarantors and
any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective
holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b) the Company and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) the Company and each Subsidiary may purchase, redeem or otherwise acquire Equity
Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of
its common stock or other common Equity Interests;
(d) payments with respect to any intercompany loan permitted under Section 7.03(g);
(e) the Company may declare or pay cash dividends to its stockholders, and purchase,
redeem or otherwise acquire for cash Equity Interests issued by it so long as, in each case, (i) after
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giving pro forma effect to such payment, purchase, redemption or acquisition, the Total Leverage Ratio
as of the end of the most recently ended fiscal quarter for which financial statements have been
delivered shall not be greater than 3.00:1.00 (in the case of any cash dividend to its stockholders,
determined as of the end of the most recently ended fiscal quarter for which financial statements have
been delivered prior to the date of declaration of such dividend (and for the avoidance of doubt, not as
of the date of payment of such dividend); provided that if at the time of any such payment, purchase,
redemption or acquisition, and after giving pro forma effect thereto, the Total Leverage Ratio as of the
end of the most recently ended fiscal quarter for which financial statements have been delivered would
be greater than 3.00:1.00, such payment, purchase, redemption or acquisition shall nonetheless be
permitted so long as the aggregate amount of such payment, purchase, redemption or acquisition
consummated in reliance on this proviso shall not exceed $10,000,000 in any fiscal year, plus (ii) such
additional payment, purchase, redemption or acquisition that is not in excess of the Available Amount
that is Not Otherwise Applied as in effect immediately prior to the time of making of such payment,
purchase, redemption or acquisition, provided that the Total Leverage Ratio, calculated on a pro forma
basis as of the end of the most recently ended fiscal quarter for which financial statements have been
delivered and giving effect to such Restricted Payments shall not exceed 3.25:1.00;
(f) the Company may make prepayments or purchases of principal in respect of the
Indebtedness permitted under Section 7.03(f) so long as (x) (i) the Company demonstrates that, on a pro
forma basis after giving effect to any such Restricted Payment, (A) it is compliance with the financial
covenants set forth in Section 7.11 (as would be in effect if the Covenant Trigger had occurred on the
date of incurrence of such Indebtedness) and (B) Liquidity shall not be less than $30,000,000, (ii) any
such Restricted Payment is made only with cash on hand of the Company and its Subsidiaries and not
with proceeds of credit extensions hereunder, and (iii) prior to making any such Restricted Payment in
any calendar year, that when aggregated with all other such Restricted Payments pursuant to this clause
(f) made during such calendar year would exceed $15,000,000, the Company demonstrates that Total
Leverage Ratio, calculated on a pro forma basis after giving effect to such Restricted Payment, shall not
be greater than 3.00:1.00 or (y) such prepayments or purchases of principal are not in excess of the
Available Amount that is Not Otherwise Applied as in effect immediately prior to the time of making of
such repayment or purchases, provided that the Total Leverage Ratio, calculated on a pro forma basis as
of the end of the most recently ended fiscal quarter for which financial statements have been delivered
and giving effect to such prepayment or purchases shall not exceed 3.25:1.00;
(g) the Company may make prepayments or purchases of principal in respect of the
Indebtedness permitted under Section 7.03(f), so long as such Restricted Payments are made with the
proceeds of Indebtedness permitted by Section 7.03(f);
(h) provided no Default of the type referred to in Section 8.01(a) or Event of Default shall
have occurred and be continuing or would result therefrom, the Company may make repurchases of
Equity Interests deemed to occur upon the exercise of stock options or warrants if such Equity Interests
represent a portion of the exercise price of such options or warrants or taxes payable in connection with
the vesting or exercise of such stock options or warrants; and
(i) provided no Default of the type referred to in Section 8.01(a) or Event of Default shall
have occurred and be continuing or would result therefrom, the payment of any dividend or distribution
within 60 days after the date of declaration thereof, if on the date of declaration (i) such payment would
have complied with the provisions of this Agreement and (ii) no Default had occurred and was
continuing.
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7.07. Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Company and its Subsidiaries on the Closing Date
or any business substantially related or incidental thereto.
7.08. Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Company, whether or not in the ordinary course of business, other than on fair and reasonable
terms substantially as favorable to the Company or such Subsidiary as would be obtainable by the
Company or such Subsidiary at the time in a comparable arm’s length transaction with a Person other
than an Affiliate; provided that the foregoing restriction shall not apply to (i) transactions between or
among Loan Parties, (ii) transactions between or among Subsidiaries of the Company that are not Loan
Parties, (iii) transactions between or among Loan Parties and Subsidiaries and/or other Persons to the
extent such transactions are expressly permitted by Sections 7.01, 7.02, 7.03, 7.04, 7.05 or 7.06, (iv) the
payment of customary directors’ fees and indemnification and reimbursement of expenses to directors,
officers and employees, (v) the issuance of stock and stock options pursuant to the Company’s stock
option plans and stock purchase plans, (vi) reasonable compensation paid to officers and employees in
their capacity as such and (vii) transactions in an aggregate principal amount not to exceed $500,000 in
any fiscal year.
7.09. Burdensome Agreements. Except as set forth on Schedule 7.09, enter into any
Contractual Obligation (other than this Agreement or any other Loan Document) that (a) limits the ability
(i) of any Subsidiary to make Restricted Payments to the Company or any Loan Party or to otherwise
transfer property to the Company or any Loan Party, (ii) of any Subsidiary to Guarantee the Indebtedness
of the Company or any Loan Party or (iii) of the Company or any Subsidiary to create, incur, assume or
suffer to exist Liens on property (including, for the avoidance of doubt, the fee-owned real property of the
Company or any Subsidiary) of such Person; provided, however, that this clause (iii) shall not prohibit
any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section
7.03(e) solely to the extent any such negative pledge relates to the property financed by or the subject of
such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is
granted to secure another obligation of such Person, except in each case for prohibitions or restrictions
existing under or by reason of:
(a) applicable Law;
(b) restrictions imposed by any agreement relating to secured Indebtedness permitted
pursuant to Sections 7.03(e) to the extent that such restrictions apply only to the property or assets
securing such Indebtedness;
(c) customary provisions restricting assignments, subletting, sublicensing, pledging or
other transfers contained in leases, licenses and sales contracts (provided that such restrictions are
limited to the agreement itself or the property or assets subject to such leases, licenses or sales
contracts, as the case may be);
(d) any restriction or encumbrance with respect to any asset which arises in connection
with the Disposition of such asset, if such Disposition is otherwise permitted under Section 7.05; and
(e) restrictions in any agreement in effect at the time any Subsidiary becomes a Subsidiary
of the Company in connection with a Permitted Acquisition, so long as such agreement was not entered
into in connection with, or in anticipation of, such Permitted Acquisition.
7.10. Use of Proceeds. Use the proceeds of any Loan or Letter of Credit, whether directly or
indirectly, and whether immediately, incidentally or ultimately, (A) to purchase or carry margin stock
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(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund Indebtedness originally incurred for such purpose, (B)
for the purpose of funding, financing or facilitating any activities, business or transaction of or with any
Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation
of any Sanctions applicable to any party hereto.
7.11. Financial Covenant. On any date when any Extension of Credit under the Revolving
Facility is outstanding (excluding any Letters of Credit) (the “Covenant Trigger”), permit the Total
Leverage Ratio for the Reference Period ended on such date to exceed (i) 4.50:1.00 as of any date of
determination prior to December 31, 2017, (ii) 4.00:1.00 as of any date of determination on December 31,
2017 and thereafter but prior to December 31, 2018, (iii) 3.50:1.00 as of any date of determination on
December 31, 2018 and thereafter but prior to December 31, 2019 and (iv) 3.00:1.00 as of any date of
determination on December 31, 2019 and thereafter.
7.12. Modifications of Certain Documents; Designation of Senior Debt. Consent to any
amendment or modification of or supplement to any of the provisions of (i) any documents or agreements
evidencing or governing the subordinated Indebtedness permitted under Section 7.03(f) or (ii) without the
consent of the Administrative Agent, the Acquisition Agreement and any documents or agreements
evidencing or governing the transactions contemplated therein (including, but not limited to, the provision
of transitional services, on-going arrangements with respect to the licensing of Intellectual Property,
conveyance of assets to the Company or its Subsidiaries and any financial guarantees and indemnitees), in
each case, in a manner materially adverse to the Lenders. The Loan Parties will designate the Credit
Agreement and the Obligations hereunder as “Designated Senior Indebtedness” or such similar term in
any document governing subordinated indebtedness incurred pursuant to Section 7.03(f), and will not
designate any other Indebtedness as “Designated Senior Indebtedness” or such similar term under any
document governing any other subordinated indebtedness incurred pursuant to Section 7.03(f) if, as a
result of such designation, any portion of the Obligations would cease to be “Designated Senior
Indebtedness” or such similar term.
7.13. Sale-Leaseback Transactions. Directly or indirectly, enter into any arrangements with
any Person whereby such Person shall sell or transfer (or request another Person to purchase) any
property, real, personal or mixed, used or useful in its business, whether now owned or hereafter acquired,
and thereafter rent or lease such property from any Person; provided however, that the Loan Parties may
enter into sale-leaseback transactions (x) with respect to sale-leaseback transaction among their Affiliates,
the Attributable Indebtedness in respect of which is permitted to be incurred pursuant to Section 7.03(e)
and (y) otherwise, if (i) after giving effect on a pro forma basis to any such transaction the Borrowers
shall be in compliance with all other provisions of this Agreement, including Section 7.01 and Section
7.03 and (ii) the gross cash proceeds of any such transaction are at least equal to the fair market value of
such property (as determined in good faith by the Loan Parties).
7.14. Changes in Fiscal Periods. Permit the fiscal year of the Company to end on a day other
than March 31 or change the Company’s method of determining fiscal quarters.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01. Events of Default. Any of the following shall constitute an Event of Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, and in the currency required hereunder, any amount of principal of any Loan
or any L/C-B/A Obligation, or (ii) within three Business Days after the same becomes due, any interest
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on any Loan or on any Obligation, or any fee due hereunder, or (iii) within five Business Days after the
same becomes due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Company fails to perform or observe any term, covenant or
agreement contained in any of Section 6.03, 6.05(a), 6.11 or Article VII; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to
be performed or observed and such failure continues for 30 days; or
(d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Company or any other Loan Party herein,
in any other Loan Document, or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect (except that such materiality qualifier will not be
applicable to any representation, warranty, statement or certification that is already qualified or
modified by materiality in the text thereof) when made or deemed made; or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any (x) Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness, or Guarantee or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to: (1)
be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or (2) an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior
to its stated maturity, or (3) such Guarantee to become payable or cash collateral in respect thereof to be
demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the
Company or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the Company or any
Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed
by the Company or such Subsidiary as a result thereof is greater than the Threshold Amount; provided
failure of payment or contractual performance shall not constitute and Event of Default pursuant to sub-
clauses (A) and (B) of this Section 8.01(e) if validly waived in writing by the holders of the relevant
Indebtedness or the beneficiaries of the relevant Guarantee pursuant to the terms of such Indebtedness
or Guarantee prior to the exercise of any remedies described in Section 8.02 by the Administrative
Agent as a result of such failure of payment or contractual performance; or
(f) Insolvency Proceedings, Etc. (i) Any Loan Party or any of its Subsidiaries institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for
the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating
to any such Person or to all or any material part of its property is instituted without the consent of such
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Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in
any such proceeding or (ii) the occurrence of a Dutch Insolvency Event with respect to a Loan Party; or
(g) Inability to Pay Debts; Attachment. (i) The Company or any Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is issued or levied against all or any
material part of the property of any such Person and is not released, vacated or fully bonded within 60
days after its issue or levy; or
(h) Judgments. There is entered against the Company or any Subsidiary (i) one or more
final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or
orders) exceeding the Threshold Amount (to the extent not covered by CM Insurance Company, Inc. or
independent third-party insurance as to which CM Insurance Company, Inc. or such third-party insurer,
as the case may be, does not dispute coverage), or (ii) any one or more non-monetary final judgments
that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such
judgment or order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs which has resulted or could reasonably be
expected to result in liability of the Company or any if its Subsidiaries in an aggregate amount in excess
of the Threshold Amount, or (ii) the Company, any of its Subsidiaries, or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any installment payment with respect
to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder
or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or
any other Person contests in any manner the validity or enforceability of any provision of any Loan
Document; or any Loan Party denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Invalidity of Liens. Any of the following shall occur: (i) the Liens created hereunder or
under the other Loan Documents shall at any time (other than by reason of the Administrative Agent (i)
relinquishing such Lien, (ii) failing to maintain possession of stock certificates, promissory notes or
other instruments actually delivered to it representing securities pledged under any Security Documents
or (iii) failing to file UCC continuation statements) cease to constitute valid and perfected Liens on any
Collateral with an aggregate fair market value in excess of $500,000 which is intended to be covered
thereby other than with the consent, in writing, of the Administrative Agent; (ii) except for expiration in
accordance with its respective terms, any Loan Document shall for whatever reason be terminated, or
shall cease to be in full force and effect other than with the consent, in writing, of the Administrative
Agent; or (iii) the enforceability of any Loan Document shall be contested by the Company or any of its
Subsidiaries.
8.02. Remedies upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any
or all of the following actions:
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(a) declare the commitment of each Lender to make Loans and any obligation of an Issuing
Lender to issue Letters of Credit or create Bankers’ Acceptances to be terminated, whereupon such
commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrowers;
(c) require that the Borrowers cash collateralize the L/C-B/A Obligations in an amount
equal to the aggregate then undrawn and unexpired amount of such Letters of Credit and Bankers’
Acceptances; and
(d) exercise on behalf of itself, the Lenders and the Issuing Lender all rights and remedies
available to it, the Lenders and the Issuing Lender under the Loan Documents;
provided, however, that upon the occurrence of any event specified in Section 8.01(f), the
obligation of each Lender to make Loans and any obligation of an Issuing Lender to make extensions of
credit with respect to Letters of Credit and Bankers’ Acceptances shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Borrowers to cash collateralize the L/C-
B/A Obligations as aforesaid shall automatically become effective, in each case without further act of the
Administrative Agent or any Lender.
8.03. Application of Funds. After the exercise of remedies provided for in Section 8.02 (or
after the Loans have automatically become immediately due and payable and the L/C-B/A Obligations
have automatically been required to be cash collateralized as set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall be applied by the Administrative Agent in the
following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and
other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and
amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other
amounts (other than principal, interest and fees with respect to Letters of Credit and Bankers’
Acceptances) payable to the Lenders and any Issuing Lender (including fees, charges and disbursements
of counsel to the respective Lenders and respective Issuing Lender and amounts payable under Article
III), ratably among them in proportion to the respective amounts described in this clause Second payable
to them;
Third, to payment of that portion of the Obligations constituting accrued and unpaid fees with
respect to Letters of Credit and Bankers’ Acceptances and interest on the Loans, extensions of credit with
respect to Letters of Credit and Bankers’ Acceptances and other Obligations, ratably among the Lenders
and any Issuing Lender in proportion to the respective amounts described in this clause Third payable to
them;
Fourth, to (a) payment of that portion of the Obligations constituting (i) Bank Product Obligations
(other than obligations under and in respect of lease financing or related services) and (ii) unpaid principal
of the Loans and extensions of credit with respect to Letters of Credit and Bankers’ Acceptances, and (b)
the Administrative Agent for the account of any Issuing Lender, to cash collateralize that portion of L/C-
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B/A Obligations comprised of the aggregate undrawn amount of Letters of Credit and Bankers’
Acceptances (in an amount equal to the Minimum Collateral Amount with respect thereof), ratably among
the Lenders and the Issuing Lender in proportion to the respective amounts described in this clause Fourth
held by them;
Fifth, to all other Obligations; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the
Company or as otherwise required by Law.
Amounts used to cash collateralize the aggregate undrawn amount of Letters of Credit and
Bankers’ Acceptances pursuant to clause Fourth above shall be applied to satisfy drawings under such
Letters of Credit and Bankers’ Acceptances as they occur. If any amount remains on deposit as cash
collateral after all Letters of Credit and Bankers’ Acceptances have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01. Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.02. Delegation of Duties. The Administrative Agent may execute any of its duties under this
Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not
be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
9.03. Exculpatory Provisions. Neither any Agent nor any of their respective officers,
directors, employees, agents, advisors, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or
any other Loan Document (except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own
gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agents under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any
Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents shall not be
under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any
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of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of any Loan Party.
9.04. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy or email message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent. The Administrative
Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other
Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.
9.05. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received
notice from a Lender or the Borrowers referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders); provided
that unless and until the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.
9.06. Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges
that neither the Agents nor any of their respective officers, directors, employees, agents, advisors,
attorneys-in-fact or affiliates have made any representations or warranties to it and that no act by any
Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate of a Loan Party,
shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender
represents to the Agents that it has, independently and without reliance upon any Agent or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it will, independently and
without reliance upon any 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 analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their affiliates. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that may
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come into the possession of the Administrative Agent or any of its officers, directors, employees, agents,
advisors, attorneys-in-fact or affiliates.
9.07. Indemnification. The Lenders agree to indemnify each Agent and its officers, directors,
employees, affiliates, agents, advisors and controlling persons (each, an “Agent Indemnitee”) (to the
extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to their respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with
such Aggregate Exposure Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or
arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent
Indemnitee’s gross negligence or willful misconduct. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
9.08. Agent in Its Individual Capacity. Each Agent and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business with any Loan Party as though such
Agent were not an Agent. With respect to its Loans made or renewed by it and with respect to any Letter
of Credit issued or participated in by it, each Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not
an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.
9.09. Successive Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days’ notice to the Lenders and the Borrower. If the Administrative Agent
shall resign as Administrative Agent under this Agreement and the other Loan Documents, then the
Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8.01(a) or Section 8.01(f) with respect to
the Borrowers shall have occurred and be continuing) be subject to approval by the Borrowers (which
approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall
mean such successor agent effective upon such appointment and approval, and the former Administrative
Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of the parties to this
Agreement or any holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for
above. After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of
this Article IX and of Section 10.05 shall continue to inure to its benefit.
9.10. Joint Lead Arrangers and Co-Syndication Agents. None of the Joint Lead Arrangers
or the Co-Syndication Agents shall have any duties or responsibilities hereunder in their respective
capacities as such.
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ARTICLE X.
MISCELLANEOUS
10.01. Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.01. The Required Lenders and each Loan Party party to the relevant Loan
Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each
Loan Party party to the relevant Loan Document may, from time to time, (a) enter into written
amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing in any manner the
rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the final scheduled date of
maturity of any Loan, extend the scheduled date of any amortization payment in respect of any Term
Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in connection with the
waiver of applicability of any post-default increase in interest rates (which waiver shall be effective with
the consent of the Majority Facility Lenders of each adversely affected Facility) and (y) that any
amendment or modification of defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend the scheduled
date of any payment thereof, or increase the amount or extend the expiration date of any Lender’s
Revolving Commitment without the written consent of each Lender directly affected thereby; (ii)
eliminate or reduce the voting rights of any Lender under this Section 10.01 without the written consent
of such Lender; (iii) reduce any percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Company or any Borrower of any of its or their rights and obligations under
this Agreement and the other Loan Documents, release all or substantially all of the Collateral or release
all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee
Agreement, U.S. Security Agreement or any other security agreement, amend the definition of
“Alternative Currency”, Section 1.06 or Section 2.25, in each case without the written consent of all
Lenders; (iv) amend, modify or waive any provision of Section 2.17 without the written consent of, in
respect of each Facility, each Lender adversely affected thereby; (v) reduce the amount of Net Cash
Proceeds required to be applied to prepay Loans under this Agreement without the written consent of the
Majority Facility Lenders with respect to each Facility adversely affected thereby; (vi) reduce the
percentage specified in the definition of Majority Facility Lenders with respect to any Facility without the
written consent of all Lenders under such Facility; (vii) amend, modify or waive any provision of Article
IX or any other provision of any Loan Document that affects the Administrative Agent without the
written consent of the Administrative Agent; (viii) amend, modify or waive any provision of Section 2.06
or 2.07 without the written consent of the Swingline Lender; or (ix) amend, modify or waive any
provision of Article III without the written consent of any applicable Issuing Lender. Any such waiver
and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver
shall extend to any subsequent or other Default or Event of Default, or impair any right consequent
thereon.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the
written consent of the Required Lenders, the Administrative Agent and the Company (a) to add one or
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more additional credit facilities to this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof to share in the benefits of this
Agreement and the other Loan Documents with the Term Loans and Revolving Extensions of Credit and
the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such
credit facilities in any determination of the Required Lenders and Majority Facility Lenders.
Furthermore, notwithstanding the foregoing, the Administrative Agent, with the consent of the Company,
may amend, modify or supplement any Loan Document without the consent of any Lender or the
Required Lenders in order to correct, amend or cure any ambiguity, inconsistency or defect or correct any
typographical error or other manifest error in any Loan Document.
Additionally, notwithstanding the foregoing, the covenant set forth in Section 7.11 or any component
definition of the covenant set forth in Section 7.11 (solely as it relates to Section 7.11) may only be
waived, amended, supplemented or modified with the written consent of the Required Revolving Lenders
(and no other Lender consent shall be required).
10.02. Notices.
All notices, requests and demands to or upon the respective parties hereto to be effective shall be
in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being deposited in the mail,
postage prepaid, or, in the case of telecopy or electronic mail notice, when received, addressed as follows
in the case of the Company and the Administrative Agent, and as set forth in an Administrative
Questionnaire delivered to the Administrative Agent in the case of the Lenders, or to such other address
as may be hereafter notified by the respective parties hereto:
Company: 000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Vice President-
Finance and Chief Financial Officer
Telephone: 000-000-0000
Fax: 000-000-0000
E-mail: xxxxxxx.xxxxxxxxx@xxxxxxx.xxx
With a copy to:
Xxxxx Xxxx, Esq.
DLA Piper LLP (US)
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: 000-000-0000
Fax: 000-000-0000
E-mail: xxxxx.xxxx@xxxxxxxx.xxx
Administrative Agent: 00 X. Xxxxxxxx Xx.
Xxxxx X0
Xxxxxxx, XX 00000
Mailcode: XX0-0000
Xxxxxxxxx: Xxxxxx Xxxxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
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Email: xxx.xxxxxx.xxxxxxxxx.0@xxxxxxxx.xxx
For borrowing notices for loans denominated in
Alternative Currencies:
X.X. Xxxxxx Europe Limited
Loans Agency 6th floor
00 Xxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxx X000XX
United Kingdom
Attention: Loans Agency
Telecopy: x00 00 0000 0000
Email: xxxx_xxx_xxxxxx_xxxxxx@xxxxxxxx.xxx
For notices with respect to Letters of Credit or
Bankers’ Acceptances:
xxxxxxx.xx.xxxxxx.xxxxxxxx.xxxx@xxxxxxxx.xxx
provided that any notice, request or demand to or upon the Administrative Agent or the Lenders shall not
be effective until received.
Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent; provided that
the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Borrowers may, in
their discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
10.03. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising,
on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or
under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.
10.04. Survival of Representations and Warranties. All representations and warranties made
hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of this Agreement and the
making of the Loans and other extensions of credit hereunder.
10.05. Payment of Expenses. The Company and the applicable Borrower agree (a) to pay or
reimburse, each Issuing Lender, the Swingline Lender and the Administrative Agent for all its reasonable
and documented out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including the
reasonable fees and disbursements of outside counsel to the Administrative Agent and Lenders and filing
and recording fees and expenses, with statements with respect to the foregoing to be submitted to the
Borrowers prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from
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time to time thereafter on a quarterly basis or such other periodic basis as the Administrative Agent shall
deem appropriate, (b) to pay or reimburse each Lender, each Issuing Lender, the Swingline Lender and
the Administrative Agent for all its reasonable and documented out-of-pocket costs and expenses incurred
in connection with the enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents, including the fees and disbursements of outside counsel
provided that such outside counsel shall be limited (except with the Company’s consent (such consent not
to be unreasonable withheld, conditioned or delayed)) to one lead counsel and one local counsel in each
applicable jurisdiction material to their interests for both the Administrative Agent and the Lenders and,
in the case of a conflict of interest, one additional separate counsel for each group of similarly affected
parties after notice to the Company, (c) to pay, indemnify, and hold each Lender, the Issuing Lenders, the
Swingline Lender and the Administrative Agent harmless from, all present of future stamp, court, or
documentary, intangible, recording, filing or similar Taxes, if any, that may be payable or determined to
be payable in connection with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement and the other Loan Documents (except any such Taxes that
are Other Connection Taxes imposed with respect to an assignment (other than an assignment made
pursuant to Section 2.22)), and (d) to pay, indemnify, and hold each Lender, the Issuing Lenders, the
Swingline Lender and the Administrative Agent, their respective affiliates, and their respective officers,
directors, employees, agents, advisors and controlling persons (each, an “Indemnitee”) harmless from and
against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan Documents and any such
other documents, including any claim, litigation, investigation or proceeding regardless of whether any
Indemnitee is a party thereto and whether or not the same are brought by the Borrower, its equity holders,
affiliates or creditors or any other Person, including any of the foregoing relating to the use of proceeds of
the Loans or Letters of Credit (including any refusal by an Issuing Lender to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit) or any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by any Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to any Borrower or any of its Subsidiaries and the reasonable
fees and expenses of legal counsel in connection with claims, actions or proceedings by any Indemnitee
against any Loan Party under any Loan Document (all the foregoing in this clause (d), collectively, the
“Indemnified Liabilities”), provided, that the Borrowers shall have no obligation hereunder to any
Indemnitee with respect to Indemnified Liabilities (i) to the extent such Indemnified Liabilities are found
by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee or any of its Affiliates or (ii) that result from any
proceeding solely among Indemnitees that does not involve an act or omission by the Company, the other
Borrowers or any of their Subsidiaries (other than a proceeding that is brought against the Administrative
Agent, any Co-Syndication Agent, or any Lead-Arranger in its capacity as such or in fulfilling its roles as
an agent or arranger hereunder or any similar role with respect to the Indebtedness incurred or to be
incurred hereunder) to the extent that none of the exceptions set forth in clause (i) of this proviso applies
to such Person at such time; and provided, further, that this Section 10.05(d) shall not apply with respect
to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. Without
limiting the foregoing, and to the extent permitted by applicable Law, the Borrowers agree not to assert
and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive,
all rights for contribution or any other rights of recovery with respect to all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related to
Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee. No
Indemnitee shall be liable for any damages arising from the use by others of information or other
materials obtained through electronic, telecommunications or other information transmission systems,
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except to the extent any such damages are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence or willful misconduct of such
Indemnitee. No Indemnitee shall be liable for any indirect, special, exemplary, punitive or consequential
damages in connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby. All amounts due under this Section 10.05 shall be payable not later than
ten Business Days after written demand therefor has been sent to the Borrowers care of Xxxxxxx X.
Xxxxxxxxx (Telephone No. 000-000-0000) (Telecopy No. 716-689-5598), at the address of the Company
set forth in Section 10.02, or to such other Person or address as may be hereafter designated by the
Company in a written notice to the Administrative Agent. The agreements in this Section 10.05 shall
survive the termination of this Agreement and the repayment of the Loans and all other amounts payable
hereunder.
10.06. Successors and Assigns; Participations and Assignments.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any affiliate of
any Issuing Lender that issues any Letter of Credit), except that (i) the Borrowers may not assign or
otherwise transfer any of their respective rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrowers without such
consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees (each, an “Assignee”), other than a natural person, any Borrower or any
Subsidiary or Affiliate of any Borrower or any Defaulting Lender, all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments and the Loans at the
time owing to it) provided that in respect of the Dutch Borrower or any Dutch Designated Borrower the
Assignee is a Non-Public Lender and with the prior written consent of:
(A) The Company (such consent not to be unreasonably withheld), provided
that no consent of the Company shall be required for an assignment to a Lender, an
affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of Default
under Section 8.01(a) or (f) has occurred and is continuing, any other Person; and
provided, further, that the Company shall be deemed to have consented to any such
assignment unless the Company shall object thereto by written notice to the
Administrative Agent within five Business Days after having received notice thereof; and
(B) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of all or any portion of a Term Loan to a
Lender, an affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans under any Facility, the amount of the Commitments or
Loans of the assigning Lender subject to each such assignment (determined as of the date
the Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (or, in the case of the
Incremental Term Facility, $1,000,000) unless each of the Company and the
Administrative Agent otherwise consent, provided that (1) no such consent of the
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Company shall be required if an Event of Default has occurred and is continuing and (2)
such amounts shall be aggregated in respect of each Lender and its affiliates or Approved
Funds, if any;
(B) (1) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500 and (2) the assigning Lender shall have paid in full any
amounts owing by it to the Administrative Agent; and
(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the Assignee designates
one or more credit contacts to whom all syndicate-level information (which may contain
material non-public information about the Company and its Affiliates and their Related
Parties or their respective securities) will be made available and who may receive such
information in accordance with the assignee’s compliance procedures and applicable
Law, including Federal and state securities laws.
For the purposes of this Section 10.06, “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is administered or
managed by (a) a Lender, (b) an affiliate of a Lender or (c) an entity or an affiliate of an entity
that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below,
from and after the effective date specified in each Assignment and Assumption the Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.18, 2.19, 2.20 and 10.05). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 10.06 shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Company,
shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and
a register for the recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount (and stated interest) of the Loans and L/C-B/A Obligations owing to, each
Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Company, the Administrative Agent, the Issuing Lenders
and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed Administrative Questionnaire
(unless the Assignee shall already be a Lender hereunder), the processing and recordation fee
referred to in paragraph (b) of this Section and any written consent to such assignment required
by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and
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Assumption and record the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c) Any Lender may, without the consent of the Company or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, and (iii) the Company, the Administrative Agent, the Issuing Lenders
and the other Lenders shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that (i) requires the consent of each
Lender directly affected thereby pursuant to the proviso to the second sentence of Section 10.01 and (ii)
directly affects such Participant. Each Lender that sells a participation agrees, at the Company’s
request and expense, to use reasonable efforts to cooperate with the Company to effectuate the
provisions of Section 2.22 with respect to any Participant. The Company agrees that each Participant
shall be entitled to the benefits of Sections 2.18, 2.19 and 2.20 (subject to the requirements and
limitations therein, including the requirements under Section 2.19(f) (it being understood that the
documentation required under Section 2.19(f) shall be delivered to the participating Lender)) to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section; provided that such Participant (i) agrees to be subject to the provisions of Sections 2.18
and 2.19 as if it were an assignee under paragraph (b) of this Section and (ii) shall not be entitled to
receive any greater payment under Sections 2.18 or 2.19, with respect to any participation, than its
participating Lender would have been entitled to receive, except to the extent such entitlement to
receive a greater payment results from an adoption of or any change in any Law or in the interpretation
or application thereof or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made subsequent to the date
hereof that occurs after the Participant acquired the applicable participation. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.07(b) as though it were a
Lender, provided such Participant shall be subject to Section 10.07(a) as though it were a Lender. Each
Lender that sells a participation shall, acting solely for this purpose as an agent of the Company,
maintain a register on which it enters the name and address of each Participant and the principal
amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the
Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to
disclose all or any portion of the Participant Register to any Person (including the identity of any
Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of
Credit or its other obligations under any Loan Document) except to the extent that such disclosure is
necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered
form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person
whose name is recorded in the Participant Register as the owner of such participation for all purposes of
this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the
Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for
maintaining a Participant Register.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
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assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such
pledge or assignment of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or
Assignee for such Lender as a party hereto. Each of the Company and any applicable Borrower, upon
receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes
to facilitate transactions of the type described in this paragraph (d).
10.07. Adjustments; Set-off. (a) Except to the extent that this Agreement or a court order
expressly provides for payments to be allocated to a particular Lender or to the Lenders under a particular
Facility, if any Lender (a “Benefitted Lender”) shall receive any payment of all or part of the Obligations
owing to it (other than in connection with an assignment made pursuant to Section 10.06), or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 8.01(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or shall provide such other
Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender
shall have the right, without notice to the Borrowers, any such notice being expressly waived by the
Borrowers to the extent permitted by applicable Law, upon any Obligations becoming due and payable
by the Borrowers (whether at the stated maturity, by acceleration or otherwise), to apply to the payment
of such Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender, any affiliate thereof or any of their respective branches or agencies to or for the
credit or the account of the Borrower; provided that if any Defaulting Lender shall exercise any such
right of setoff, (i) all amounts so set-off shall be paid over immediately to the Administrative Agent for
further application in accordance with the provisions of this Agreement and, pending such payment,
shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the
benefit of the Administrative Agent, the Issuing Lenders, the Swingline Lender and the Lenders and (ii)
the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in
reasonable detail the obligations owing to such Defaulting Lender as to which it exercised such right of
set-off. Each Lender agrees promptly to notify the Borrowers and the Administrative Agent after any
such application made by such Lender, provided that the failure to give such notice shall not affect the
validity of such application.
10.08. Counterparts. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed signature page of this
Agreement by email or facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be lodged with
the Company and the Administrative Agent.
10.09. Severability. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
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unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.10. Integration. This Agreement and the other Loan Documents represent the entire
agreement of the Borrowers, the Administrative Agent and the Lenders with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
10.12. Submission to Jurisdiction; Waivers. Each of the Borrowers, the Administrative Agent
and the Lenders hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the exclusive jurisdiction (except as set forth
in the proviso below) of the courts of the State of New York sitting in the Borough of Manhattan,
the courts of the United States for the Southern District of New York, and appellate courts from
any thereof; provided, that nothing contained herein or in any other Loan Document will prevent
any Lender or the Administrative Agent from bringing any action to enforce any award or
judgment or exercise any right under the Security Documents or against any Collateral or any
other property of any Loan Party in any other forum in which jurisdiction can be established;
(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same
(c) agrees that service of process in any such action or proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Company, as the case may be at its address set forth in Section
10.02 or at such other address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to
claim or recover in any legal action or proceeding referred to in this Section any indirect, special,
exemplary, punitive or consequential damages.
10.13. Acknowledgments. Each of the Borrowers hereby acknowledges and agrees that (a) no
fiduciary, advisory or agency relationship between the Loan Parties and the Credit Parties is intended to
be or has been created in respect of any of the transactions contemplated by this Agreement or the other
Loan Documents, irrespective of whether the Credit Parties have advised or are advising the Loan Parties
on other matters, and the relationship between the Credit Parties, on the one hand, and the Loan Parties,
on the other hand, in connection herewith and therewith is solely that of creditor and debtor, (b) the Credit
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Parties, on the one hand, and the Loan Parties, on the other hand, have an arm’s length business
relationship that does not directly or indirectly give rise to, nor do the Loan Parties rely on, any fiduciary
duty to the Loan Parties or their affiliates on the part of the Credit Parties, (c) the Loan Parties are capable
of evaluating and understanding, and the Loan Parties understand and accept, the terms, risks and
conditions of the transactions contemplated by this Agreement and the other Loan Documents, (d) the
Loan Parties have been advised that the Credit Parties are engaged in a broad range of transactions that
may involve interests that differ from the Loan Parties’ interests and that the Credit Parties have no
obligation to disclose such interests and transactions to the Loan Parties, (e) the Loan Parties have
consulted their own legal, accounting, regulatory and tax advisors to the extent the Loan Parties have
deemed appropriate in the negotiation, execution and delivery of this Agreement and the other Loan
Documents, (f) each Credit Party has been, is, and will be acting solely as a principal and, except as
otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and will not be
acting as an advisor, agent or fiduciary for the Loan Parties, any of their affiliates or any other Person, (g)
none of the Credit Parties has any obligation to the Loan Parties or their affiliates with respect to the
transactions contemplated by this Agreement or the other Loan Documents except those obligations
expressly set forth herein or therein or in any other express writing executed and delivered by such Credit
Party and the Loan Parties or any such affiliate and (h) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Credit
Parties or among the Loan Parties and the Credit Parties.
10.14. Releases of Guarantees and Liens.
(a) Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required by Section 10.01) to take
any action requested by the Company having the effect of releasing any Collateral or guarantee
obligations (i) to the extent necessary to permit consummation of any transaction not prohibited by any
Loan Document or that has been consented to in accordance with Section 10.01 or (ii) under the
circumstances described in paragraph (b) below.
(b) At such time as the Loans, the Reimbursement Obligations and the other obligations
under the Loan Documents shall have been paid in full, the Commitments have been terminated and no
Letters of Credit or Bankers’ Acceptances shall be outstanding, the Collateral shall be released from the
Liens created by the Security Documents, and the Security Documents and all obligations (other than
those expressly stated to survive such termination) of the Administrative Agent and each Loan Party
under the Security Documents shall terminate, all without delivery of any instrument or performance of
any act by any Person.
10.15. Confidentiality. Each of the Administrative Agent, each Issuing Lender and each
Lender agrees to keep confidential all Information (as defined below); provided that nothing herein shall
prevent the Administrative Agent, any Issuing Lender or any Lender from disclosing any such
Information (a) to the Administrative Agent, any other Issuing Lender, any other Lender or any affiliate
thereof, (b) subject to an agreement to comply with the provisions of this Section, to any actual or
prospective Transferee or any direct or indirect counterparty to any Swap Agreement (or any professional
advisor to such counterparty), (c) to its employees, directors, agents, attorneys, accountants and other
professional advisors or those of any of its affiliates, (d) upon the request or demand of any Governmental
Authority, (e) in response to any order of any court or other Governmental Authority or as may otherwise
be required pursuant to any Law, (f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) that has been publicly disclosed, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating agency that requires
access to information about a Lender’s investment portfolio in connection with ratings issued with respect
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to such Lender, (i) in connection with the exercise of any remedy hereunder or under any other Loan
Document, (j) to market data collectors and service providers providing services in connection with the
syndication or administration of the Facilities or (k) if agreed by the Company in its sole discretion, to
any other Person. “Information” means all information received from the Company relating to the
Company, its Subsidiaries or its business, other than any such information that is available to the
Administrative Agent, any Issuing Lender or any Lender on a non-confidential basis prior to disclosure by
the Company and other than information pertaining to this Agreement routinely provided by arrangers to
data service providers, including league table providers, that serve the lending industry; provided that in
the case of information received from the Company after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section 10.15 shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each Lender acknowledges that information furnished to it pursuant to this Agreement or the
other Loan Documents may include material non-public information concerning the Company and its
Affiliates and their Related Parties or their respective securities, and confirms that it has developed
compliance procedures regarding the use of material non-public information and that it will handle such
material non-public information in accordance with those procedures and applicable Law, including
Federal and state securities laws.
All information, including requests for waivers and amendments, furnished by the Company or
the Administrative Agent pursuant to, or in the course of administering, this Agreement or the other Loan
Documents will be syndicate-level information, which may contain material non-public information about
the Company and its Affiliates and their Related Parties or their respective securities. Accordingly, each
Lender represents to the Company and the Administrative Agent that it has identified in its
Administrative Questionnaire a credit contact who may receive information that may contain material
non-public information in accordance with its compliance procedures and applicable Law, including
Federal and state securities laws.
10.16. WAIVERS OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
10.17. USA PATRIOT Act. Each Lender hereby notifies each Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Patriot Act”), it is required to obtain, verify and record information that identifies each Borrower, which
information includes the name and address of each Borrower and other information that will allow such
Lender to identify each Borrower in accordance with the Patriot Act.
10.18. Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking procedures
the Administrative Agent could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of each Borrower in respect of any such
sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents
shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which
such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement
Currency”), be discharged only to the extent that on the Business Day following receipt by the
113
Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance
with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative
Agent or any Lender from any Borrower in the Agreement Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such
Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent or any Lender in such currency, the
Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to
such Borrower (or to any other Person who may be entitled thereto under applicable Law).
10.19. Representation Dutch Borrower. If the Dutch Borrower, or any other Loan Party
incorporated under the laws of the Netherlands, is represented by an attorney in connection with the
signing and/or execution of this Agreement or any other agreement, deed or document referred to in or
made pursuant to this Agreement, it is hereby expressly acknowledged and accepted by the other parties
to such document that the existence and extent of the attorney’s authority and the effects of the attorney’s
exercise or purported exercise of his or her authority shall be governed by the laws of the Netherlands.
10.20. Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement
or understanding among any such parties, each party hereto acknowledges that any liability of any EEA
Financial Institution arising under any Loan Document may be subject to the write-down and conversion
powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be
bound by, (a) the application of any Write-Down and Conversion Powers by an EEA Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is
an EEA Financial Institution and (b) the effects of any Bail-In Action on any such liability, including, if
applicable: (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or
a portion of, such liability into shares or other instruments of ownership in such EEA Financial
Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it,
and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with
respect to any such liability under this Agreement or any other Loan Document; or (iii) the variation of
the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of
any EEA Resolution Authority.
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[CMCO Credit Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.
COMPANY:
COLUMBUS XXXXXXXX CORPORATION
By:
Name:
Title:
DUTCH BORROWER:
COLUMBUS XXXXXXXX DUTCH
HOLDINGS 3 B.V.
By:
Name:
Title:
GERMAN BORROWER:
COLUMBUS XXXXXXXX EMEA GMBH
By:
Name:
Title:
[CMCO Credit Agreement]
Acknowledged and Agreed by the Subsidiary
Guarantors:
YALE INDUSTRIAL PRODUCTS, INC.
By:
Name:
Title:
CRANE EQUIPMENT & SERVICE, INC.
By:
Name:
Title:
UNIFIED INDUSTRIES INC.
By:
Name:
Title:
MAGNETEK, INC.
By:
Name:
Title:
[CMCO Credit Agreement]
Acknowledged and Agreed by the Agents and Lenders:
JPMORGAN CHASE BANK, N.A.
as Administrative Agent, Lender, an Issuing Lender and
the Swingline Lender
By:
Name:
Title:
[CMCO Credit Agreement]
CITIZENS BANK, N.A.
as Co-Syndication Agent and Lender
By:
Name:
Title:
[CMCO Credit Agreement]
MANUFACTURERS AND TRADERS TRUST
COMPANY
as Co-Syndication Agent and Lender
By:
Name:
Title:
[CMCO Credit Agreement]
PNC CAPITAL MARKETS LLC
as Co-Syndication Agent
By:
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
as Lender
By:
Name:
Title:
[CMCO Credit Agreement]
[__]
as Lender
By:
Name:
Title:
