FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this “First Amendment”) is made and entered into as of the 8th day of March, 2023, by and among:
Delaware corporation (“International”), X.X. XXXXXX CO., INC., an Ohio corporation (“Xxxxxx”), LINCOLN ELECTRIC AUTOMATION, INC., an Ohio corporation (“Automation”), and LINCOLN GLOBAL, INC., a Delaware corporation (“Global” and, together with Holdings, Lincoln, International, Xxxxxx and Automation, each a “Borrower” and, collectively, the “Borrowers”);
Recitals:
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Agreements:
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual agreements hereinafter set forth, the Borrowers, the Lenders and the Administrative Agent, intending to be legally bound, hereby agree as follows:
amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same
manner as the following example: double-underlined text) as set forth in the pages of the Credit
Agreement attached as Exhibit A hereto.
Paragraph 1, above, shall not be effective unless and until the date on which all of the following conditions precedent have been satisfied (such date of effectiveness being the “First Amendment Effective Date”):
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effect to the amendment set forth in Paragraph 1, above, the Borrowers hereby certify that (i) no Default exists, (ii) the representations and warranties of the Borrowers under Article 10 of the Credit Agreement are true and correct in all material respects as of the First Amendment Effective Date (unless and to the extent that any such representation and warranty is stated to relate solely to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date), and (iii) the execution, delivery and performance of this First Amendment has been authorized by all necessary corporate or company action.
below) shall have received from each Borrower a counterpart of this First Amendment signed on behalf of such party.
have received from the Borrowers, for delivery to each Lender requesting a replacement Note, a replacement Note in the amount specified in Annex A to the Credit Agreement (as amended by Exhibit A hereto).
credit extension requested, made or outstanding that bears interest with reference to a rate based on LIBOR (as defined in the Credit Agreement immediately prior to the First Amendment Effective Date) that is or was set at any time prior to the First Amendment Effective Date and is held constant for a specifically designated period and is not reset on a daily or a substantially daily basis (disregarding day count, weekend or holiday conventions), and notwithstanding anything contained herein to the contrary, the applicable provisions of the Credit Agreement in
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effect immediately prior to the First Amendment Effective Date shall continue in effect solely for such purpose; provided that, with respect to any such credit extension described in this Section 3, such credit extension shall only continue in effect in accordance with its terms until the then-current “Interest Period” (or similar or analogous period) for such credit extension has concluded.
all of the terms and conditions of the Credit Agreement and the other Loan Documents remain unchanged and in full force and effect.
hereof all of its respective Indebtedness and other obligations to each of the Lender Parties under and pursuant to the Credit Agreement and each of the other Loan Documents and that such Indebtedness and other obligations are owed to each of the Lender Parties according to their respective terms. Each Borrower hereby affirms as of the date hereof that there are no claims or defenses to the enforcement by the Lender Parties of the Indebtedness and other obligations of such Borrower to each of them under and pursuant to the Credit Agreement or any of the other Loan Documents.
Administrative Agent promptly for its reasonable invoiced out-of-pocket costs and expenses incurred in connection with this First Amendment and the transactions contemplated hereby, including, without limitation, the reasonable fees and expenses of Squire Xxxxxx Xxxxx (US) LLP, special counsel to the Administrative Agent (the “Special Counsel”).
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
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STATE OF OHIO AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE BORROWERS, THE LENDERS AND THE ADMINISTRATIVE AGENT AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall constitute one and the same instrument, and all signatures need not appear on any one counterpart. Any party hereto may execute and deliver a counterpart of this First Amendment by delivering by facsimile or email transmission a signature page of this First Amendment signed by such party, and any such facsimile or email signature shall be treated in all respects as having the same effect as an original signature. Any party delivering by facsimile or email transmission a counterpart executed by it shall promptly thereafter also deliver a manually signed counterpart of this First Amendment.
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party’s counsel drafted this First Amendment or such other agreements and documents, or based on any other rule of strict construction. Each of the parties hereto represents and declares that such party has carefully read this First Amendment and all other agreements and documents executed in connection herewith and therewith, and that such party knows the contents thereof and signs the same freely and voluntarily. The parties hereby acknowledge that they have been represented by legal counsel of their own choosing in negotiations for and preparation of this First Amendment and all other agreements and documents executed in connection therewith and that each of them has read the same and had their contents fully explained by such counsel and is fully aware of their contents and legal effect.
AMENDMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS FIRST AMENDMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS FIRST AMENDMENT
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BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATION IN THIS SECTION.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the Borrowers, the Lenders and the Administrative Agent have hereunto set their hands as of the date first above written.
BORROWERS
LINCOLN ELECTRIC HOLDINGS, INC.
By_/s/ Xxxxxxxxxxx X. Xxxxx Xxxxxxxxxxx X. Xxxxx, Chairman, President and Chief Executive Officer
And_/s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxx, Executive Vice President, Chief Financial Officer and Treasurer
THE LINCOLN ELECTRIC COMPANY
By_/s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxx, Executive Vice President
And_/s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxx, Treasurer
LINCOLN ELECTRIC INTERNATIONAL HOLDING COMPANY
By_/s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxx, Treasurer
X.X. XXXXXX CO., INC.
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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By_/s/ Xxx Xxxxxxxx Xxx Xxxxxxxx, Treasurer
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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LINCOLN GLOBAL, INC.
By_/s Xxxx Xxxxxxx Xxxx Xxxxxxx, Treasurer
LINCOLN ELECTRIC AUTOMATION, INC.
By_/s/ Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx, Treasurer
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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ADMINISTRATIVE AGENT
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
By_/s/ Xxxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxxxx, Senior Vice President
LENDERS
KEYBANK NATIONAL ASSOCIATION,
as Lender
By_/s/ Xxxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxxxx, Senior Vice President
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,
as Lender
By_/s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx
Title:Managing Director
By_/s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx
Title: Executive Director
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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BANK OF AMERICA, N.A.,
as Lender
By_/s/ Xxxxx Xxxx Xxxxx Xxxx, Senior Vice President
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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BNP PARIBAS,
as Lender
By_/s/ Xxxx Xxxxxxx Xxxx Xxxxxxx, Managing Director
By_/s/ Xxxx Xxxxxxx Xxxx Xxxxxxx, Managing Director
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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CANADIAN IMPERIAL BANK OF COMMERCE,
as Lender
By_/s/ Xxxxxx Xxxxx Xxxxxx Xxxxx, Senior Manager
By_/s/ Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx, Director
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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HSBC BANK USA, NATIONAL ASSOCIATION,
as Lender
By_/s/ Xxxxx Xxxxxxx Xxxxx Xxxxxxx, Senior Vice President
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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JPMORGAN CHASE BANK, N.A.,
as Lender
By_/s/ Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx, Executive Director
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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MUFG BANK, LTD.,
as Lender
By /s/ Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Head of Corporate Banking Credit
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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PNC BANK, NATIONAL ASSOCIATION,
as Lender
By_/s/ Xxxxxx X. Xxxxx Xxxxxx X. Xxxxx, Senior Vice President
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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XXXXX FARGO BANK, N.A.,
as Lender
By_/s/ Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx, Vice President
Signature Page to First Amendment to
Second Amended and Restated Credit Agreement
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EXHIBIT A
CREDIT AGREEMENT
See attached.
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Published Transaction CUSIP Number: 00000XXX0 Published Revolver CUSIP Number: 00000XXX0
EXHIBIT A to FIRST AMENDMENT AGREEMENT
Published Transaction CUSIP Number: 00000XXX0 Published Revolver CUSIP Number: 00000XXX0
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of April 23, 2021 by and among
LINCOLN ELECTRIC HOLDINGS, INC.,
and certain of its Subsidiaries, as Borrowers
THE FINANCIAL INSTITUTIONS
PARTY THERETO, as Lenders
KEYBANK NATIONAL ASSOCIATION,
in its capacities as Letter of Credit Issuer and Administrative Agent for the Lenders
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000-0000-0000/8/AMERICAS
Table of Contents
Page
SECTION 1.2 Computation of Time Periods3231
SECTION 1.3 Accounting Terms; Accounting Changes3231
SECTION 1.4 Restatement of Existing Credit Agreement3332 SECTION 1.5 Benchmark Notification3432
SECTION 2.1 Amount and Nature of Credit3433
SECTION 2.2 Purpose of Facility3533 ARTICLE 3
SECTION 3.1 Revolving Credit Loans.3533
SECTION 3.2 Optional Reductions; Termination Of Commitments3937
SECTION 3.3 Repayments and Prepayments; Prepayment Compensation.4038 SECTION 3.4 Fees.4139
SECTION 3.5 Interest.4341 SECTION 3.6 Payments and Computations.4442
SECTION 3.7 Reserves; Taxes; Indemnities.4644
SECTION 3.8 Capital Adequacy; Liquidity48
SECTION 3.9 Taxes.4846 SECTION 3.10 No Waiver; Reimbursement Limitation5149
SECTION 3.11 Xxxxxx’s Obligation to Mitigate; Replacement of Lenders.5249 SECTION 3.12 Optional Increase of Commitments5250
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SECTION 3.13 Rate Unascertainable; Increased Costs; Illegality; Benchmark
PRO RATA TREATMENT; DEFAULTING LENDERS
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Table of Contents (continued)
Page
SECTION 4.3 Cash Collateral6560
SECTION 5.1 Letters of Credit6661
SECTION 5.2 Letter of Credit Issuer Relationship with Lenders.6661
SECTION 5.3 Resignation and Removal of Letter of Credit Issuer6863 ARTICLE 6
OPENING COVENANTS; CONDITIONS TO RESTATEMENT DATE
SECTION 6.1 Opening Covenants6964
SECTION 6.2 Prior to Restatement Date6964 ARTICLE 7
CONDITIONS TO ALL CREDIT EVENTS
SECTION 7.1 Representation Bringdown7165
SECTION 7.2 Compliance with Agreement7166
SECTION 7.3 No Material Adverse Change7166 ARTICLE 8
SECTION 8.1 Financial Statements.7166
SECTION 8.4 Money Obligations7469
SECTION 8.6 Franchises7570 SECTION 8.7 Certain Subsidiaries to Join as Borrower7570
SECTION 8.8 Most Favored Covenant Status7570
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Table of Contents (continued)
Page
SECTION 9.2 Investments7772 SECTION 9.3 Mergers; Acquisitions; Bulk Transfers7873 SECTION 9.4 Liens8075 SECTION 9.5 Transactions with Affiliates8277
SECTION 9.6 Change in Nature of Business, Name8277
SECTION 9.7 Fixed Charges Coverage8277
SECTION 9.8 Net Leverage Ratio8277
ARTICLE 10 REPRESENTATIONS AND WARRANTIES
SECTION 10.1 Existence; Subsidiaries.8378
SECTION 10.2 Power, Authorization and Consent; Enforceability8378 SECTION 10.3 Litigation; Proceedings8378
SECTION 10.4 ERISA Compliance8378
SECTION 10.5 Financial Condition8479
SECTION 10.8 Lawful Operations8580
SECTION 10.9 Investment Company Act Status8580
SECTION 10.10 Regulation G/Regulation U/Regulation X Compliance8580 SECTION 10.11 Title to Properties8681
SECTION 10.12 Intellectual Property8681
SECTION 10.13 Anti-Corruption Laws and Sanctions; Anti-Money Laundering Laws8681 SECTION 10.14 Full Disclosure8681
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Table of Contents (continued)
Page
SECTION 11.5 Termination of Plan or Creation of Withdrawal Liability8782 SECTION 11.6 Validity of Agreements8883
SECTION 11.7 Solvency of Borrowers8883
SECTION 11.9 Change in Control8883 ARTICLE 12
SECTION 12.1 Optional Defaults8883
SECTION 12.2 Automatic Defaults8984
SECTION 12.4 Equalization of Advantage9085
SECTION 12.5 Application of Remedy Proceeds9085 ARTICLE 13
SECTION 13.2 Nature of Appointment9186 SECTION 13.3 KeyBank as a Lender; Other Transactions9186 SECTION 13.4 Instructions from Lenders9186
SECTION 13.5 Lenders’ Diligence9186
SECTION 13.6 No Implied Representations9287
SECTION 13.8 Agent’s Diligence9287
SECTION 13.9 Notice of Default9287
SECTION 13.10 Agent’s Liability9287
SECTION 13.11 Compensation9388
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SECTION 13.14 Lender Purpose9489
SECTION 13.15 No Reliance on Agent’s Customer Identification Program9489 SECTION 13.16 Erroneous Payments.9590
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Table of Contents (continued)
Page
ARTICLE 14 ASSIGNMENTS AND PARTICIPATIONS
SECTION 14.2 Participations9994
SECTION 14.3 Permitted Pledges9994 SECTION 14.4 Furnishing of Borrower Information9994 ARTICLE 15
SECTION 15.1 Amendments, Consents10095
SECTION 15.2 No Waiver; Cumulative Remedies10196 SECTION 15.3 Notices10196
SECTION 15.4 Costs and Expenses10196
SECTION 15.5 Obligations Several10499
SECTION 15.6 Execution in Counterparts10499
SECTION 15.7 Binding Effect; Assignment105100
SECTION 15.8 Governing Law105100
SECTION 15.9 Severability of Provisions; Captions; Survival105100 SECTION 15.10 Entire Agreement105100
SECTION 15.11 Confidentiality105100
SECTION 15.12 JURY TRIAL WAIVER106101 SECTION 15.13 Jurisdiction; Venue; Inconvenient Forum.106101 SECTION 15.14 USA Patriot Act.107102
SECTION 15.15 Replacement of Lenders108103
SECTION 15.16 Acknowledgement and Consent to Bail-In of Affected Financial Institutions108103
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SECTION 15.17 No Advisory or Fiduciary Responsibility109104 SECTION 15.18 Acknowledgement Regarding any Supported QFCs109104 ARTICLE 16
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EXHIBITS
Exhibit A Form of Revolving Credit Note Exhibit B Form of Notice of Borrowing
Exhibit C Form of Rate Conversion/Continuation Request Exhibit D Form of Reduction Notice
Exhibit E Form of Certificate of Financial Officer Exhibit F Form of Assignment Agreement Exhibit G Form of Administrative Questionnaire
SCHEDULES
Schedule 1Addresses
Schedule 9.2Existing Investments Schedule 9.4Existing Liens Schedule 10.1Existing Subsidiaries Schedule 10.3Litigation
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT is made as of
the 23rd day of April, 2021 by and among:
Recitals:
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Agreements:
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual agreements hereinafter set forth, the Borrowers, the Lenders, the Letter of Credit Issuer and the Agent hereby agree as follows:
SECTION 1.1 Definitions. As used in this Agreement, the following capitalized terms shall have the following meanings:
“Accrual Period” shall mean (i) the period commencing with the first day of the Commitment Period and ending on the close of business on May 31, 2021, and (ii) thereafter, each of the following successive periods during the Commitment Period commencing with each, as the case may be, Fee Adjustment Date or Interest Adjustment Date during the Commitment Period, commencing with the Fee Adjustment Date and Interest Adjustment Date which is June 1, 2021:
December 1 through March 31, inclusive
April 1 through May 31, inclusive
June 1 through August 31, inclusive
September 1 through November 30, inclusive.
“Acquisition” shall mean and include (i) any acquisition on a going concern basis (whether by purchase, lease or otherwise) of any facility and/or business operated by any Person who is not a Subsidiary of Holdings, and (ii) any acquisition of a majority of the outstanding equity or other similar interests in any such Person (whether by merger, stock purchase or otherwise).
“Adjusted LIBOR” shall mean a rate per annum equal to the quotient obtained (rounded upwards, if necessary, to the nearest 1/100th of 1%) by dividing (i) the applicable LIBOR by (ii)
1.00 minus the Reserve Percentage, and which Adjusted LIBOR shall be automatically adjusted on and as of the effective date of any change in the Reserve Percentage.
“Adjusted Term SOFR Rate” means for any Available Tenor and Interest Period with respect to a Term SOFR Rate Loan, the greater of (1) the sum of (a) Term SOFR Rate for such Interest Period and (b) the applicable SOFR Adjustment and (2) the SOFR Floor.
“Advantage” shall mean any payment (whether made voluntarily or involuntarily, by offset of any deposit or other indebtedness or otherwise) received by any Lender in respect of the Obligations owing by the Borrowers to the Lenders if such payment results in that Lender having a lesser share (based upon its Ratable Share) of such Obligations to the Lenders than was the case immediately before such payment.
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“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, with respect to any Person, any other person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. A Person shall be deemed to control a second Person if such first Person possesses, directly or indirectly, the power (i) to vote 50% or more of the securities having ordinary voting power for the election of directors or managers of such second Person or (ii) to direct or cause the direction of the management and policies of such second Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding the foregoing, (x) a director, officer or employee of a Person shall not, solely by reason of such status, be considered an Affiliate of such Person; and (y) none of the Lenders, the Agent, or the Letter of Credit Issuer shall in any event be considered to be an Affiliate of Holdings or any of its Subsidiaries.
“Agent” has the meaning assigned to such term in the preamble of this Agreement and any successor thereto pursuant to Section 13.
“Agreement” shall mean this Second Amended and Restated Credit Agreement, as the same may from time to time be further amended, supplemented, restated or otherwise modified.
“Anniversary Date” shall mean the date that is one (1) year after the Restatement Date (which Restatement Date the Agent shall confirm to the Borrowers and the Lenders in writing, and which the Borrowers shall acknowledge in writing) and each successive anniversary of such date thereafter.
“Anti-Corruption Laws” shall mean all Laws of any jurisdiction applicable to a Lincoln Party from time to time concerning or relating to bribery or corruption.
“Anti-Money Laundering Laws” shall mean any and all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules related to terrorism financing, money laundering, any predicate crime to money laundering or any financial record keeping, including any applicable provision of the PATRIOT Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C.
§§ 1818(s), 1820(b) and 1951-1959).
“Applicable Fee Percentage” shall mean, on each day of any Accrual Period, with respect to any Facility Fee,
Net Leverage Ratio:Applicable Fee Percentage (in Basis Points):
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Equal to or greater than 2.75 to 1Twenty (20.00)
Less than 2.75 to 1, but equal to
or greater than 2.00 to 1Fifteen (15.00)
Less than 2.00 to 1, but equal to
or greater than 1.50 to 1Ten (10.00)
Less than 1.50 to 1, but equal to
or greater than 1.00 to 1Nine (9.00)
Less than 1.00 to 1Eight (8.00);
provided, however, that, (a) at any and all times during which the Borrowers are in default of the timely delivery of (1) the financial statements required by Section 8.1(a) or Section 8.1(b), as the case may be, for any period or (2) the certificate complying with Section 8.1(c)(ii) certifying the Net Leverage Ratio, the Applicable Fee Percentage shall be Twenty (20.00) Basis Points, and (b) the accrual of fees based upon the Applicable Fee Percentage pursuant to clause (a) of this proviso shall not be construed to waive any Event of Default which may exist by reason of such failure or limit any right or remedy of the Agent or the Lenders.
“Applicable LIBOR Percentage” shall mean, on each day of any Accrual Period with respect to any LIBOR Loans comprising a Revolving Credit Borrowing,
Applicable LIBOR
Net Leverage Ratio:Percentage (in Basis Points):
Equal to or greater than 2.75 to 1One Hundred Forty (140.00)
Less than 2.75 to 1, but equal to
or greater than 2.00 to 1One Hundred Twelve and one-half (112.50)
Less than 2.00 to 1, but equal to
or greater than 1.50 to 1Eighty-five (85.00)
Less than 1.50 to 1, but equal to
or greater than 1.00 to 1Seventy-six (76.00)
Less than 1.00 to 1Sixty-seven (67.00);
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provided, however, that, (a) at any and all times during which the Borrowers are in default of the timely delivery of (1) the financial statements required by Section 8.1(a) or Section 8.1(b), as the case may be, for any period or (2) the certificate complying with Section 8.1(c)(ii) certifying the Net Leverage Ratio, the Applicable LIBOR Percentage shall be One Hundred Forty (140.00) Basis Points, and (b) the accrual of interest based upon the Applicable LIBOR Percentage pursuant to clause (a) of this proviso shall not be construed to waive any Event of Default which may exist by reason of such failure or limit any right or remedy of the Agent or the Lenders.
“Applicable Prime Rate Percentage” shall mean, on each day of any Accrual Period with respect to any Prime Rate Loans comprising a Revolving Credit Borrowing,
Applicable Prime Rate
Net Leverage Ratio:Percentage (in Basis Points):
Equal to or greater than 2.75 to 1Forty (40.00)
Less than 2.75 to 1, but equal to
or greater than 2.00 to 1Twelve and one-half (12.50)
Less than 2.00 to 1Zero (0.00)
provided, however, that, (a) at any and all times during which the Borrowers are in default of the timely delivery of (1) the financial statements required by Section 8.1(a) or Section 8.1(b), as the case may be, for any period or (2) the certificate complying with Section 8.1(c)(ii) certifying the Net Leverage Ratio, the Applicable Prime Rate Percentage shall be Forty (40.00) Basis Points, and (b) the accrual of interest based upon the Applicable Prime Rate Percentage pursuant to clause (a) of this proviso shall not be construed to waive any Event of Default which may exist by reason of such failure or limit any right or remedy of the Agent or the Lenders.
“Applicable Term SOFR Rate Percentage” shall mean, on each day of any Accrual Period with respect to any Term SOFR Rate Loans comprising a Revolving Credit Borrowing, the Basis Points per annum indicated in the applicable table below corresponding to Holdings’ Net Leverage Ratio as of the Interest Determination Date for each Interest Adjustment Date:
Applicable Term SOFR Rate
Net Leverage Ratio:Percentage (in Basis Points):
Equal to or greater than 2.75 to 1One Hundred Forty (140.00)
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Less than 2.75 to 1, but equal to
or greater than 2.00 to 1One Hundred Twelve and one-half (112.50)
Less than 2.00 to 1, but equal to
or greater than 1.50 to 1Eighty-five (85.00)
Less than 1.50 to 1, but equal to
or greater than 1.00 to 1Seventy-six (76.00)
Less than 1.00 to 1Sixty-seven (67.00);
provided, however, that, (a) at any and all times during which the Borrowers are in default of the timely delivery of (1) the financial statements required by Section 8.1(a) or Section 8.1(b), as the case may be, for any period or (2) the certificate complying with Section 8.1(c)(ii) certifying the Net Leverage Ratio, the Applicable Term SOFR Rate Percentage shall be One Hundred Forty (140.00) Basis Points, and (b) the accrual of interest based upon the Applicable Term SOFR Rate Percentage pursuant to clause (a) of this proviso shall not be construed to waive any Event of Default which may exist by reason of such failure or limit any right or remedy of the Agent or the Lenders.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Banking Day” shall mean (i) a day of the year on which banks are not required or authorized to close in Cleveland, Ohio and New York, New York; provided, however, that, when used in connection with a LIBOR Loan, “Banking Day” shall mean any such day on which banks are open for dealings in or quoting deposit rates for dollar deposits in the London interbank marketand (ii) with respect to any matters relating to Term SOFR Rate Loans, a U.S. Government Securities Business Day.
“Bankruptcy Code” shall mean Title 11 of the United States Code (11 U.S.C. § 101 et. seq.) or any replacement, supplemental, successor or similar statute dealing with the bankruptcy of debtors.
“Basis Point” shall mean one one-hundredth of one percent (0.01%).
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“Beneficial Ownership Certification” means a certification, in form and substance reasonably acceptable to the Agent (as amended or modified by the Agent from time to time) regarding beneficial ownership as required by the Beneficial Ownership Regulation, including a certification, among other things, of the beneficial owner of the Borrowers.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Borrower” and “Borrowers” has the meaning assigned to such term in the preamble of this Agreement.
“Borrower Property” shall mean any real property and improvements owned, leased, used, operated or occupied by any Borrower or any of their respective corporate predecessors, including any soil, surface water or groundwater on or under such real property and improvements.
“Capitalized Leases” shall mean, in respect of any Person, any lease of property imposing obligations on such Person, as lessee of such property, which are required in accordance with GAAP to be capitalized on a balance sheet of such Person (excluding all obligations under an operating lease required by the Financial Accounting Standards Board to be classified or accounted for as a capital lease).
“Cash Collateralize” shall mean, to pledge and deposit with or deliver to the Agent, for the benefit of the Letter of Credit Issuer or Lenders, as collateral for Risk Participation Exposure or obligations of Lenders to fund participations in respect of Risk Participation Exposure, cash or Cash Equivalents that mature not more than one (1) month after the date of acquisition thereof or, if the Agent and the Letter of Credit Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to the Agent and the Letter of Credit Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“Cash Equivalent” shall mean (a) any debt instrument that would be deemed a cash equivalent in accordance with GAAP and that has an investment grade rating from Xxxxx’x and/or S&P; (b) fully collateralized repurchase agreements entered into with any financial institution that has an investment grade rating from Xxxxx’x and S&P having a term of not more than 90 days and covering securities described in clause (a) above; (c) investments in money market funds substantially all the assets of which are comprised of securities of the types described in clause (a) above or in other securities having an investment grade rating from Xxxxx’x and S&P; (d) investments in money market funds access to which is provided as part of “sweep” accounts maintained with a financial institution that has an investment grade rating from Xxxxx’x and S&P, or the foreign equivalent thereof; (e) investments in Tax exempt bonds and notes that (i) “re-set” interest rates not less frequently than quarterly, (ii) are entitled to the benefit of a remarketing arrangement with an established broker dealer, and (iii) whose principal and accrued interest are guaranteed or payment of which is assured by an organization that has an investment grade rating from Xxxxx’x and S&P, or the foreign equivalent thereof; (f) investments in pooled funds or investment accounts consisting of investments of the nature described in the foregoing clause (e); (g) securities issued or fully guaranteed by any state of the United States or by any political subdivision or taxing authority of any such state, the securities
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of which state, political subdivision or taxing authority (as the case may be) have an investment grade rating from Xxxxx’x and S&P; and (h) other short term investments utilized by the Borrowers in accordance with normal investment practices for cash management in investments analogous to the foregoing investments described in clauses (a) through (g) above.
“Change in Law” shall mean the occurrence, after the date of this Agreement (or, with respect to any Lender, if later, the date on which it first becomes a Lender), of any of the following: (a) the adoption of any Law, (b) any change in any Law or in the interpretation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rule, guideline, requirement or directive (whether or not having the force of Law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder, issued in connection therewith or in implementation thereof and (ii) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented; provided, however, that as used in this definition, “Law” shall not include any agreement by a Lincoln Party with any Governmental Authority.
“Change of Control” shall mean and include any of the following:
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“CIP Regulations” shall have the meaning assigned to such term in Section 13.15. “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time,
and the rules and regulations promulgated thereunder from time to time.
“Commitment” shall mean, with respect to each Lender, the obligation hereunder of such Lender to make Loans and to participate in the risks of all Letters of Credit issued by the Letter of Credit Issuer at Holdings’ request on behalf of the Borrowers, up to the amount set forth opposite such Xxxxxx’s name under the column headed “Commitments” as set forth in Annex A hereof during the Commitment Period as such Commitment may be reduced in accordance with a reduction in the Total Commitment Amount pursuant to Section 3.2 hereof or increased pursuant to Section 3.12 hereof.
“Commitment Acceptance” shall have the meaning assigned to such term in Section 3.12. “Commitment Period” shall mean the period from (i) the Restatement Date to (ii) the fifth
(5th) Anniversary Date, or such earlier date on which the Commitments are terminated pursuant to the terms hereof; provided that if such 5th Anniversary Date is not a Banking Day, the last day of the Commitment Period shall be the Banking Day that immediately precedes such 5th Anniversary Date.
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Conforming Changes” shall mean, with respect to the Term SOFR Rate, the Daily Simple SOFR or any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Prime Rate,” the definition of “Banking Day,” the definition of “Interest Period,” the definition of “U.S. Government Securities Business Day,” timing and frequency of determining rates and making payments of interest, timing of prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Consolidated” shall mean Holdings and its Subsidiaries, taken as a whole in accordance with GAAP.
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“Consolidated Fixed Charges” shall mean, with respect to any period, the sum of (a) Consolidated Interest Expense for such period and (b) Consolidated Lease Rentals for such period.
“Consolidated Income Available for Fixed Charges” shall mean, with respect to any period, Consolidated Net Income for such period, plus, without duplication, all amounts deducted in the computation thereof on account of (a) Consolidated Fixed Charges and (b) Taxes imposed on or measured by income or excess profits.
“Consolidated Interest Expense” shall mean, for any period, Interest Expense of Holdings and its Subsidiaries on a Consolidated basis.
“Consolidated Lease Rentals” shall mean, with respect to any period, the sum of the rental and other obligations required to be paid during such period by Holdings and its Subsidiaries as lessee under all leases of real or personal property (other than Capitalized Leases), on a Consolidated basis, excluding any amount required to be paid by the lessee (whether or not therein designated as rental or additional rental) on account of maintenance and repairs, insurance, Taxes, assessments, water rates and similar charges, provided that, if at the date of determination, any such rental or other obligations (or portion thereof) are contingent or not otherwise definitely determinable by the terms of the related lease, the amount of such obligations (or such portion thereof) (i) shall be assumed to be equal to the amount of such obligations for the period of 12 consecutive calendar months immediately preceding the date of determination or (ii) if the related lease was not in effect during such preceding 12-month period, shall be the amount estimated by a responsible officer of Holdings on a reasonable basis and in good faith.
“Consolidated Net Income” shall mean, with reference to any period, the net income (or loss) of Holdings and its Subsidiaries for such period, on a Consolidated basis, as determined in accordance with GAAP, after eliminating all offsetting debits and credits between Holdings and its Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of Holdings and its Subsidiaries in accordance with GAAP, provided that there shall be excluded:
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whether tangible or intangible, and all inventory sold in conjunction with the disposition of fixed assets), and any Taxes on such net gain (or net loss),
| (e) | any net gain from the collection of the proceeds of life insurance policies, |
“Consolidated Net Worth” shall mean, at any time,
“Controlled Group” shall mean a controlled group of corporations, as defined in Section 1563 of the Code, of which any Borrower is a part.
“Credit Event” shall mean (a) the obligation of (i) each Lender to make a Loan on the occasion of each Revolving Credit Borrowing, (ii) the Letter of Credit Issuer to issue, amend, renew or extend any Letter of Credit, or (iii) any Lender to participate in the risk of any Letter of Credit, (b) the making of a Loan by any Lender, (c) the issuance, amendment, renewal or extension of a Letter of Credit, (d) the delivery by Holdings on behalf of the Borrowers of (i) a Notice of Borrowing requesting a Revolving Credit Borrowing or a Letter of Credit or (ii) a Rate Conversion/Continuation Request requesting the conversion or continuation of Revolving Credit Loans, (e) a Rate Conversion or Rate Continuation, or (f) the acceptance by any Borrower of proceeds of any Revolving Credit Borrowing.
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“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), the interest rate per annum reasonably determined by the Agent by dividing (the resulting quotient rounded upwards, at the Agent’s discretion, to the nearest 1/100th of 1%) (A) SOFR for the day (the “SOFR Determination Date”) that is 2 U.S. Government Securities Business Days prior to (i) such SOFR Rate Day if such SOFR Rate Day is a U.S. Government Securities Business Days or (ii) the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day if such SOFR Rate Day is not a U.S. Government Securities Business Day, by (B) a number equal to 1.00 minus the SOFR Reserve Percentage, in each case, as such SOFR is published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source identified by the Federal Reserve Bank of New York or its successor administrator for the secured overnight financing rate from time to time. If Daily Simple SOFR as determined above would be less than the SOFR Floor, then Daily Simple SOFR shall be deemed to be the SOFR Floor. If SOFR for any SOFR Determination Date has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Cleveland, Ohio time) on the second U.S. Government Securities Business Day immediately following such SOFR Determination Date, then SOFR for such SOFR Determination Date will be SOFR for the first U.S. Government Securities Business Day preceding such SOFR Determination Date for which SOFR was published in accordance with the definition of “SOFR”; provided that SOFR determined pursuant to this sentence shall be used for purposes of calculating Daily Simple SOFR for no more than 3 consecutive SOFR Rate Days. If and when Daily Simple SOFR as determined above changes, any applicable rate of interest based on Daily Simple SOFR will change automatically without notice to the Borrowers, effective on the date of any such change.
“Debtor Relief Laws” shall mean the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default under ERISA” shall mean (a) the occurrence or existence of a material “accumulated funding deficiency” (as defined in ERISA) in respect of any Plan within the scope of Section 302(a) of ERISA or (b) any failure by any Borrower to make a full and timely payment of premiums required by Section 4001 of ERISA in respect of any Plan, or (c) the occurrence or existence of any material liability under Section 4062, 4063, 4064 or 4069 of ERISA in respect of any Plan or under Section 4201, 4217 or 4243 of ERISA in respect of any Multiemployer Plan, or (d) the occurrence or existence of any material breach of any other Law or regulation in respect of any such Plan, or (e) the institution or existence of any action for the forcible termination of any such Plan which is within the scope of Section 4001(15) of ERISA or of any such Multiemployer Plan which is within the scope of Section 4001(a)(3) of ERISA.
“Defaulting Lender” shall mean, subject to Section 4.2(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Banking Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Agent and Holdings in writing that such failure is the result of such Xxxxxx’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any
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applicable Incipient Default or Event of Default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Agent, the Letter of Credit Issuer, or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Banking Days of the date when due, (b) has notified Holdings, the Agent, or the Letter of Credit Issuer in writing that it does not intend to comply with its funding obligations hereunder or generally under other agreements in which it commits to extend credit, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxx’s obligation to fund a Loan hereunder and states that such position is based on such Xxxxxx’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable Incipient Default or Event of Default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Banking Days after written request by the Agent or Holdings, to confirm in writing from an authorized officer of such Lender to the Agent and Holdings that it will comply with its prospective funding obligations hereunder (and is financially able to meet such obligations) (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and Holdings, in form and substance reasonably satisfactory to the Agent and Holdings), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of 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. Any determination by the Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 4.2(b)) upon delivery of written notice of such determination to Holdings, the Letter of Credit Issuer, and each Lender.
“Distribution” shall mean any payment made, liability incurred and other consideration (other than any stock dividend, or stock split or similar distributions payable only in capital stock of a Borrower) given (i) for the purchase, acquisition, redemption or retirement of any capital stock of a Borrower or (ii) as a dividend, return of capital or other distribution of any kind in respect of a Borrower’s capital stock outstanding at any time.
“Dollar” or the $ sign means lawful currency of the United States.
“Domestic Subsidiary” shall mean any Subsidiary which is incorporated or organized in the United States or any state or territory thereof.
“EBITDA” shall mean, for any period, the sum of the amounts of (i) Consolidated Net Income, (ii) Consolidated Interest Expense for such period, (iii) depreciation for such period on a
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Consolidated basis, as determined in accordance with GAAP, (iv) amortization for such period on a Consolidated basis, as determined in accordance with GAAP, (v) all provisions for any Taxes imposed on or measured by income or excess profits made by Holdings and its Subsidiaries during such period, (vi) all non-cash losses, charges and expenses, including any write-offs or write-downs; provided that if any such non-cash charge represents an accrual or reserve for potential cash items in any future four-fiscal quarter period, the cash payment in respect thereof in such future four-fiscal quarter period will be subtracted from EBITDA for such future four-fiscal quarter period; (vii) all extraordinary, unusual or non-recurring items; (viii) restructuring charges and related charges in connection with any single or one-time events; and
(ix) any expenses or costs incurred in connection with equity offerings, Investments, Indebtedness or dispositions otherwise permitted under this Agreement, whether or not consummated, in each case, for clauses (ii) through (ix), inclusive, to the extent expensed or deducted in computing Consolidated Net Income and without duplication; provided, that, at any time a Permitted Acquisition is made pursuant to Section 9.2, EBITDA shall be recalculated to include the EBITDA of the acquired company (with appropriate pro-forma adjustments, reasonably acceptable to the Agent, due to discontinued operations) as if such Permitted Acquisition had been completed on the first day of the relevant measuring period.
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean 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.
“Electronic Signature” shall mean an electronic sound, symbol or process attached to, or associated with, a contract or other record adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Embargoed Country” shall mean, at any time, a country, territory or region which is itself, or the government of which is, the subject or target of any comprehensive embargo under any Sanctions (as of the Restatement Date, Crimea, Cuba, Iran, North Korea and Syria, which list may be amended from time to time).
“Environmental Laws” shall mean any federal, state or local Law, regulation, ordinance, or order pertaining to the protection of the environment and the health and safety of the public, including (but not limited to) the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 USC §§ 9601 et seq.; the Resource Conservation and Recovery Act (“RCRA”), 42 USC §§ 6901 et seq., the Hazardous Materials Transportation Act, 49 USC
§§ 1801 et seq., the Federal Water Pollution Control Act (33 USC §§ 1251 et seq.), the Toxic
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Substances Control Act (15 USC §§ 2601 et seq.) and the Occupational Safety and Health Act (29 USC §§ 651 et seq.), and all similar state, regional or local Laws, treaties, regulations, statutes or ordinances, common Law, civil Laws, or any case precedents, rulings, requirements, directives or requests having the force of Law, as the same have been or hereafter may be amended, and any and all analogous future Laws, treaties, regulations, statutes or ordinances, common Law, civil Laws, or any case precedents, rulings, requirements, directives or requests having the force of Law, which governs: (i) the existence, cleanup and/or remedy of contamination on property; (ii) the emission or discharge of Hazardous Materials into the environment; (iii) the control of hazardous wastes; (iv) the use, generation, transport, treatment, storage, disposal, removal or recovery of Hazardous Materials; or (v) the maintenance and development of wetlands.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974 (Public Law 93-406), as amended, and in the event of any amendment affecting any section thereof referred to in this Agreement, that reference shall be reference to that section as amended, supplemented, replaced or otherwise modified.
“ERISA Affiliate” of any Person shall mean any other Person that for purposes of Title IV of ERISA is a member of such Person’s Controlled Group, or under common control with such Person, within the meaning of Section 414 of the Code.
“ERISA Regulator” shall mean any Governmental Authority (such as the Department of Labor, the Internal Revenue Service and the Pension Benefit Guaranty Corporation) having any regulatory authority over any Plan.
“Erroneous Payment” has the meaning assigned to it in Section 13.16(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 13.16(d).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 13.16(d). “Erroneous Payment Return Deficiency” has the meaning assigned to it in Section
13.16(d).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 13.16(d).
“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.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Event of Default” has the meaning assigned to such term in Article 11. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
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“Excluded Swap Obligation” shall mean, with respect to any Borrower or any Guarantor, as it relates to all or a portion of the Guaranty of such Borrower or such Guarantor, any Swap Obligation if, and to the extent that, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Borrower’s or such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guarantee of such Borrower or such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee is or becomes illegal.
“Excluded Taxes” shall mean, with respect to any Lender Party (or Participant) or other recipient of a payment made by or on account of any obligation of a Borrower hereunder:
| 3. | Other Connection Taxes; |
Notwithstanding the foregoing, a withholding Tax will not be an “Excluded Tax” to the extent that (A) it is imposed on amounts payable to a Foreign Lender by reason of an assignment made to such Foreign Lender at Holding’s request pursuant to Section 15.15, (B) it is imposed on amounts payable to a Foreign Lender by reason of any other assignment and does not exceed the amount for which the assignor would have been paid or indemnified pursuant to Section 3.9 or
(C) in the case of designation of a new Lending Office, it does not exceed the amount for which such Foreign Lender would have been paid or indemnified if it had not designated a new Lending Office.
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“Existing Credit Agreement” shall mean the Amended and Restated Credit Agreement dated June 30, 2017 among the Borrowers , as borrowers, KeyBank, as agent and letter of credit issuer, and the Lenders.
“Existing Facility” shall have the meaning specified in Recital B of this Agreement. “Facility Fee” has the meaning assigned to such term in Section 3.4(a).
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.
“FCA” shall have the meaning assigned to such term in Section 3.13(a).
“Fed Funds Rate” shall mean, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Banking Day, for the next preceding Banking Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Banking Day, the average of the quotations for such day on such transactions received by the Agent from three (3) federal funds brokers of recognized standing selected by it.
“Fee Adjustment Date” shall mean each April 1, June 1, September 1 and December 1 during the Commitment Period, commencing with June 1, 2021.
“Fee Determination Date” shall mean, as to each Fee Adjustment Date, the last day of the Fiscal Quarter most recently ended prior to such Fee Adjustment Date; provided that, as to the Fee Adjustment Date that is April 1 of any year, the Fee Determination Date shall be December 31 of the immediately preceding year (that is, the last day of the Fiscal Year most recently ended prior to such April 1 Fee Adjustment Date). By way of example, the Fee Determination Date for the Fee Adjustment Date on June 1, 2021 shall be March 31, 2021, which is the last day of the Fiscal Quarter most recently ended prior to such Fee Adjustment Date.
“Fee Letter” shall mean that certain fee letter between the Agent and Holdings dated April 23, 2021.
“Fiscal Quarter” shall mean any of the four consecutive three-month fiscal accounting periods collectively forming a Fiscal Year of Holdings consistent with Holdings’ past practice.
“Fiscal Year” shall mean Holdings’ regular annual accounting period which shall end December 31, 2021, in respect of Holdings’ current annual accounting period, and which thereafter shall end on December 31 of each succeeding calendar year.
“Fixed Charges Coverage Ratio” shall mean, at any time, the ratio of (a) Consolidated Income Available for Fixed Charges for the period of four consecutive fiscal quarters ending as
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of the most recent fiscal quarter ended prior to such time to (b) Consolidated Fixed Charges for such period.
“Foreign Lender” shall mean any Lender that is organized under the Laws of a jurisdiction outside the United States.
“Former Agent” has the meaning assigned to such term in Section 13.13. “Former LC Bank” has the meaning assigned to such term in Section 5.3.
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, with respect to the Letter of Credit Issuer, such Defaulting Lender’s Ratable Share of the outstanding Risk Participation Exposure with respect to Letters of Credit issued by the Letter of Credit Issuer other than Risk Participation Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms of this Agreement.
“Funded Debt” shall mean (a) Indebtedness, other than Indebtedness of the types described in clauses (ix), (x), (xii) and (xiii) of the definition of such term, below, and (b) all guaranty obligations of such Person in respect of any Indebtedness of the type described in clause (a) of this definition.
“GAAP” shall mean generally accepted accounting principles in the United States of America as in effect from time to time; it being understood and agreed that determinations in accordance with GAAP for purposes of Sections 8.16 through 8.20, inclusive, including defined terms as used therein, are subject (to the extent provided therein) to Sections 1.1 and 1.3. If at any time the SEC permits or requires U.S.-domiciled companies subject to the reporting requirements of the Exchange Act to use, in whole or in part, IFRS in lieu of GAAP for financial reporting purposes, Holdings may elect by written notice to the Agent to so use IFRS (or, to the extent permitted by the SEC and consistent with pronouncements of the Financial Accounting Standards Board and the International Accounting Standards Board, portions thereof from time to time) in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the date specified in such notice, IFRS (or, if applicable, such portions) as in effect from time to time and (b) for prior periods, GAAP as defined in the first sentence of this definition (and as theretofore modified pursuant to this sentence), in each case subject to Section 1.3.
“Governmental Authority” shall mean the government of the United States, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, Taxing, regulatory or administrative powers or functions of or pertaining to government, including any supra-national bodies such as the European Union or the European Central Bank, and any group or body charged with setting regulatory capital or liquidity rules or standards (including, without limitation, the Basel Committee on Banking Supervision or any successor or similar authority).
“Guarantor” shall mean one who pledges his, her or its credit or property in any manner for the payment or other performance of the Indebtedness, contract or other obligation of another
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and includes (without limitation) any guarantor (whether of collection or payment), any obligor in respect of a standby letter of credit or surety bond issued for the obligor’s account, and surety, any co-maker, any endorser, and anyone who agrees conditionally or otherwise to make any loan, purchase or investment in order thereby to enable another to prevent or correct a default of any kind.
“Guaranty” shall mean the obligation of a Guarantor.
“Hazardous Material” shall mean and include (i) any asbestos or other material composed of or containing asbestos which is, or may become, even if properly managed, friable, (ii) petroleum and any petroleum product, including crude oil or any fraction thereof, and natural gas or synthetic natural gas liquids or mixtures thereof, (iii) any hazardous, toxic or dangerous waste, substance or material defined as such in (or for purposes of) CERCLA or RCRA, any so-called “Superfund” or “Superlien” law, or any other applicable Environmental Laws, and (iv) any other substance whose generation, handling, transportation, treatment or disposal is regulated pursuant to any Environmental Laws.
“Holdings” has the meaning assigned to such term in the preamble of this Agreement. “IBA” shall have the meaning assigned to such term in Section 3.13(a).
“IFRS” shall mean the International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such Board, or the SEC, as the case may be), as in effect from time to time.
“Incipient Default” shall mean an event, condition or thing which constitutes, or which with the lapse of any applicable grace period or the giving of notice or both would constitute, any Event of Default and which has not been appropriately waived by the Lenders in writing or fully corrected prior to becoming an actual Event of Default.
“Increased Commitment Letter” shall have the meaning assigned to such term in Section
3.12.
“Increased Rate” shall mean, at any time and from time to time, a rate of interest per
annum which (i) as to any Loan, is Two Hundred (200) Basis Points in excess of the rate of interest otherwise accruing on such Loan at such time, (ii) as to the Risk Participation Fee, is Two Hundred (200) Basis Points in excess of the Applicable LIBORTerm SOFR Rate Percentage in effect pursuant to Section 3.5(b), and (iii) as to all other Obligations other than Loans and the Risk Participation Fee, is Two Hundred Fifty-two and one-half (252.50) Basis Points in excess of the Prime Rate.
“Indebtedness” shall mean, with respect to any Person, without duplication, (i) all indebtedness for money borrowed of such Person; (ii) all bonds, notes, debentures and similar debt securities of such Person; (iii) the deferred purchase price of capital assets or services which in accordance with GAAP would be shown on the liability side of the balance sheet of such Person; (iv) the amount available to be drawn under all letters of credit issued for the account of
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such Person (other than commercial or trade letters of credit issued in connection with customer or supplier relationships in the ordinary course of business) and, without duplication, all unreimbursed drafts drawn thereunder; (v) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances; (vi) all Indebtedness of a second Person secured by any Lien on any property owned by such first Person, whether or not such Indebtedness has been assumed; (vii) all Capitalized Lease obligations of such Person and all Indebtedness of such Person secured by purchase money Liens; (viii) the present value, determined on the basis of the implicit interest rate, of all basic rental obligations under all “synthetic” leases (i.e. leases accounted for by the lessee as operating leases under which the lessee is the “owner” of the leased property for Federal income Tax purposes); (ix) all obligations of such Person to pay a specified purchase price for goods or services whether or not delivered or accepted, i.e., take-or- pay and similar obligations; (x) all net obligations of such Person under any so-called ‘hedge’, ‘swap’, ‘collar’, ‘cap’ or similar interest rate or currency fluctuation protection agreements; (xi) the full outstanding balance of trade receivables, notes or other instruments sold with full recourse (and the portion thereof subject to potential recourse, if sold with limited recourse), including, without limitation, in connection with a Qualifying Securitization Transaction, other than in any such case any thereof sold solely for purposes of collection of delinquent accounts;
(xii) the stated value, or liquidation value if higher, of all redeemable stock (or other equity interest) of such Person; and (xiii) all guaranty obligations of such Person; provided that (a) neither trade payables nor other similar accrued expenses, in each case arising in the ordinary course of business, unless evidenced by a note, shall constitute Indebtedness; and (b) the Indebtedness of any Person shall in any event include (without duplication) the Indebtedness of any other entity (including any general partnership in which such Person is a general partner) to the extent such Person is liable thereon as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide expressly that such Person is not liable thereon.
“Indemnified Taxes” shall mean all Taxes except Excluded Taxes.
“Interest Adjustment Date” shall mean each April 1, June 1, September 1 and December 1 during the Commitment Period, commencing with June 1, 2021.
“Interest Determination Date” shall mean, as to each Interest Adjustment Date, the last day of the Fiscal Quarter most recently ended prior to such Interest Adjustment Date; provided that, as to the Interest Adjustment Date that is April 1 of any year, the Interest Determination Date shall be December 31 of the immediately preceding year (that is, the last day of the Fiscal Year most recently ended prior to such April 1 Interest Adjustment Date). By way of example, the Interest Determination Date for the Interest Adjustment Date on June 1, 2021 shall be March 31, 2021, which is the last day of the Fiscal Quarter most recently ended prior to such Interest Adjustment Date.
“Interest Expense” shall mean, for any fiscal period, all expense of Holdings or any of its Subsidiaries for such fiscal period classified as interest expense for such period, including capitalized interest and interest under “synthetic” leases, in accordance with GAAP.
“Interest Period” shall mean, for each of the LIBORTerm SOFR Rate Loans comprising a Revolving Credit Borrowing, the period commencing on the date of such Loans or the date of the
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Rate Conversion or Rate Continuation of any Loans into such LIBORTerm SOFR Rate Loans and ending on the numerically corresponding day of the period selected by Holdings on behalf of the Borrowers pursuant to the provisions hereof and each subsequent period commencing on the last day of the immediately preceding Interest Period in respect of such Loans and ending on the last day of the period selected by Holdings on behalf of the Borrowers pursuant to the provisions hereof. The duration of each such Interest Period shall be one (1), three (3) or six (6) months, in each case as Holdings on behalf of the Borrowers may select, upon delivery to the Agent of a Notice of Borrowing therefor in accordance with Section 3.l(d) hereof; provided, however, that:
| (i) | Interest Periods for Loans comprising part of the same Revolving Credit Borrowing shall be of the same duration; |
| (ii) | no Interest Period may end on a date later than the last day of the Commitment Period; |
| (iii) | if there is no such numerically corresponding day in the month that is such, as the case may be, first, second, third or sixth month after the commencement of an Interest Period, such Interest Period shall end on the last day of such month; |
| (iv) | whenever the last day of any Interest Period in respect of LIBORTerm SOFR Rate Loans would otherwise occur on a day other than a Banking Day, the last day of such Interest Period shall be extended to occur on the next succeeding Banking Day; provided, however, that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the immediately preceding Banking Day; and |
| (v) | Holdings, on behalf of the Borrowers, may not select any Interest Period ending after the date of any reduction in the Total Commitment Amount unless, after giving effect to such selection, the aggregate unpaid principal amount of any then outstanding Prime Rate Loans taken together with the principal amount of any then outstanding LIBORTerm SOFR Rate Loans having Interest Periods ending on or prior to the date of such reduction shall be at least equal to the principal amount of the Revolving Credit Loans due and payable on or prior to such date. |
“Investment” shall mean any investment, made in cash, by undertaking or by delivery of property, by Holdings or any of its Subsidiaries (i) in any Person, whether by acquisition of stock or other equity interest, joint venture or partnership, Indebtedness or other obligation or security, or by loan, Guaranty, advance, capital contribution or otherwise, or (ii) in any property.
“KeyBank” shall mean KeyBank National Association, a national banking association, its successors and assigns.
“LC Sublimit” shall mean the amount Ten Million Dollars ($10,000,000).
“Law” shall mean any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, code, guideline, release, ruling, determination or order of, including
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the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, or any agreement by a Lincoln Party with, any Governmental Authority.
“Lender” or “Lenders” has the meaning assigned to such term in the preamble of this Agreement.
“Lender Debt” shall mean, collectively, every Indebtedness and liability now or hereafter owing by any Borrower to the Lenders or any thereof, whether owing absolutely or contingently, whether created by loan, overdraft, guaranty of payment or other contract or by quasi-contract, tort, statute or other operation of Law, whether incurred directly to the Lenders or any thereof or acquired by any or all thereof by purchase, pledge or otherwise, and whether participated to or from the Lenders or any thereof in whole or in part.
“Lender Parties” shall mean the Lenders, the Letter of Credit Issuers and the Agent. “Lending Office” shall mean, with respect to any Lender, the office of such Lender
specified as its “Lending Office” on Schedule 1 hereto, or such other office of such Lender as such Lender may from time to time specify in writing to the Borrowers and the Agent as the office at which Loans are to be made and maintained.
“Letter of Credit” shall mean any standby letter of credit or commercial letter of credit issued by the Letter of Credit Issuer on a risk-participated basis with the other Lenders pursuant to the provisions of this Agreement.
“Letter of Credit Issuer” shall mean KeyBank and any successor thereto pursuant to Section 5.3.
“Leverage Increase Period” has the meaning specified in Section 9.8.
“LIBOR” shall mean, with respect to any LIBOR Loan for the Interest Period applicable to such LIBOR Loan, the greater of (i) zero percent (0.00%) per annum and (ii) the per annum rate of interest, determined by the Agent in accordance with its usual procedures (which determination shall be conclusive and binding absent manifest error) as of approximately 11:00
a.m. (London time) two (2) Banking Days prior to the beginning of such Interest Period pertaining to such LIBOR Loan, equal to the London Interbank Offered Rate, as published by Bloomberg (or, if Bloomberg does not publish the London Interbank Offered Rate, such other commercially available source providing quotations of such London Interbank Offered Rate as reasonably designated by the Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market), having a maturity comparable to such Interest Period.
“LIBOR Loans” shall mean those Loans described in Section 3.1 hereof on which the Borrowers shall pay interest at a rate based on LIBOR.
“Lien” shall mean any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained
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security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
“Lincoln Party” shall mean any of the Borrowers or any other direct or indirect Subsidiary of any of them from time to time, collectively, the “Lincoln Parties”.
“Loan” shall mean a Revolving Credit Loan made by a Lender to or for the account of the Borrowers pursuant to Article 3 and refers to a Prime Rate Loan or a LIBORTerm SOFR Rate Loan.
“Loan Document” shall mean this Agreement, any assignment, note (including the Notes), guaranty, subordination agreement (including, without limitation, subordination provisions contained in documents evidencing or governing Subordinated Indebtedness), Reimbursement Agreement, financial statement, certificate, audit report or other writing furnished by the Borrowers, or any of their officers to the Lenders pursuant to or otherwise in connection with this Agreement.
“Majority Lenders” shall mean, at any time of determination, one or more Lenders having Commitments in the aggregate of more than fifty percent (50%) of the Total Commitment Amount or, in the event that the Commitments of the Lenders shall have been terminated, the Lenders holding more than fifty percent (50%) of the amount of the outstanding Revolving Credit Loans; provided that the amount of Revolving Credit Loans and Commitments held, or deemed held, by any Defaulting Lender shall be disregarded in determining Majority Lenders.
“Material Adverse Effect” shall mean the occurrence or existence of (a) a material adverse effect on the business, results of operations or financial condition of a Borrower and its Subsidiaries, taken as a whole, or (b) a material adverse effect on the ability of the Borrowers and the Guarantors taken as a whole to perform their Obligations under this Agreement or any of the other Loan Documents, or (c) a material adverse effect on the legality, validity or enforceability of a Borrower’s or a Guarantor’s Obligations under this Agreement or any of the other Loan Documents.
“Minimum Collateral Amount” shall mean, at any time, (a) with respect to Cash Collateral consisting of cash or Cash Equivalents, an amount equal to 105% of the Fronting Exposure of the Letter of Credit Issuer with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount determined by the Agent and the Letter of Credit Issuer in their sole discretion.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc. and its successors and assigns or, if it shall be dissolved or shall no longer assign credit ratings to debt, then any other nationally recognized statistical rating agency designated by the Agent and reasonably acceptable to the Borrowers.
“Multiemployer Plan” shall mean any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).
“Multiple Employer Plan” shall mean an employee benefit plan, other than a Multiemployer Plan, to which a Borrower or any ERISA Affiliate, and one or more employers
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other than a Borrower or an ERISA Affiliate, is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which a Borrower or an ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan.
“Net Funded Debt” shall mean, as at the date of any determination, an amount equal to
“Net Leverage Ratio” shall mean, as of the end of any Fiscal Quarter, the ratio of (i) Net Funded Debt outstanding as of the end of such Fiscal Quarter to (ii) Trailing EBITDA as of the end of such Fiscal Quarter.
“Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting Lender at such time.
“Non-increasing Lender” shall have the meaning assigned to such term in Section 3.12. “Note” or “Notes” shall mean a note or notes executed and delivered pursuant to
Section 3.1(c) hereof.
“Notice of Borrowing” shall have the meaning assigned to such term in Section 3.1(d). “Obligations” shall mean, without duplication, all Indebtedness and other obligations of
the Borrowers and any Guarantor under this Agreement and the other Loan Documents, including, without limitation, the outstanding principal and accrued interest in respect of any Revolving Credit Loans, the outstanding principal and accrued interest in respect of Letters of Credit, all Facility Fees, Risk Participation Fees, fees owing to the Lenders or the Agent, reimbursement obligations under Letters of Credit, any indebtedness or obligations under any so- called ‘hedge’, ‘swap’, ‘collar’, ‘cap’ or similar interest rate or currency fluctuation protection agreements hereafter constituting one or more of the Loan Documents pursuant to a writing signed by the Borrowers, the Agent and the Majority Lenders, and any expenses, Taxes, compensation or other amounts owing under this Agreement, the Notes, any Reimbursement Agreement, including, without limitation, pursuant to Sections 3.3, 3.4, 3.7, 3.8, 3.9 or 15.4, any Erroneous Payment Subrogation Rights, and any and all other amounts owed by any Borrower or Guarantor to the Agent or the Lenders pursuant to this Agreement, the Notes or any other Loan Document; provided, that Obligations shall not include Excluded Swap Obligations.
“Other Connection Taxes” shall mean with respect to any Lender Party (or Participant), Taxes imposed as a result of a present or former connection between such Lender Party (or Participant) and the jurisdiction imposing such Tax (other than connections arising from such Lender Party (or Participant) having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” shall mean any present or future stamp or documentary Taxes or any other excise or property Taxes, charges or similar levies which arise from any payment made
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hereunder or under the Notes or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or the Notes.
“Payment Office” shall mean such office of the Agent as set forth on Schedule 1 hereof or such offices as may be from time to time selected by the Agent and notified in writing by the Agent to the Borrowers and the Lenders as the office to which payments are to be made by the Borrowers or the Lenders, as the case may be.
“Payment Recipient” has the meaning assigned to it in Section 13.16(a).
“Permitted Acquisition” shall mean any Acquisition as to which all of the following conditions are satisfied:
| (i) | such Acquisition involves a line or lines of business in a Related Industry; |
“Permitted Holdings Merger” shall mean a merger between Holdings and another Person as to which all of the following conditions are satisfied:
| (i) | Holdings is the surviving corporation under such merger; |
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demonstrating, in reasonable detail, the computation of and compliance with the ratios referred to in Sections 9.7 and 9.8 hereof on a pro forma basis (which pro forma basis shall be satisfactory to the Agent) after giving effect to such merger.
“Permitted Purchase Money Security Interest” shall mean any Lien which is created or assumed in purchasing, constructing or improving any real or personal property (other than inventory) in the ordinary course of business, or to which any such property is subject when so purchased, including, without limitation, Capitalized Leases, provided, that (i) such lien shall be confined to the aforesaid property, (ii) the Indebtedness secured thereby does not exceed the total cost of the purchase, construction or improvement, and (iii) any refinancing of such indebtedness does not increase the amount of indebtedness owing as of the date of such refinancing.
“Person” shall mean an individual, partnership, limited liability company, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture or other entity, or a Governmental Authority.
“Plan” shall mean any employee pension benefit plan (except a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Internal Revenue Code or Section 302 of ERISA, and in respect of which a Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” defined in Section 3(5) of ERISA.
“Prime Rate” shall mean, as of any date of determination, the highest of (i) zero percent (0.00%) per annum, (ii) the per annum rate equal to the Fed Funds Rate on such date (or if such date is not a Banking Day, the immediately preceding Banking Day) plus one-half percent (0.50%), (iii) that interest rate established from time to time by KeyBank as its so-called “prime” rate (or equivalent rate otherwise named), whether or not such rate is publicly announced; the Prime Rate may not necessarily be the lowest interest rate charged by KeyBank for commercial or other extensions of credit or (iv) the Adjusted LIBORTerm SOFR Rate for an Interest Period of one month beginning on such day (or if such day is not a Banking Day, the most recent Banking Day), plus one percent (1.00%). Any change in the Prime Rate due to a change in the “prime” rate described in clause (iii) above or the Fed FundsAdjusted Term SOFR Rate will be effective from and including the effective date of such change in the “prime” rate or the Fed FundsAdjusted Term SOFR Rate, respectively.
“Prime Rate Loans” shall mean those loans described in Section 3.1(b) hereof on which the Borrowers shall pay interest at the rate based on the Prime Rate.
“Qualified Acquisition” shall mean (a) a Permitted Acquisition with aggregate consideration of at least $100,000,000 or (b) a series of related Permitted Acquisitions in any twelve (12) month period, with aggregate consideration for all such Permitted Acquisitions of at least $100,000,000; provided, that, for any such Permitted Acquisition or series of related Permitted Acquisitions to qualify as a Qualified Acquisition, a responsible officer of Holdings shall have delivered to the Agent a certificate (i) certifying that the Permitted Acquisition or series of related Permitted Acquisitions meets the criteria set forth in the foregoing clause (a) or clause (b), as applicable, and (ii) notifying the Agent that the Borrowers have elected to treat such Permitted Acquisition or series of related Permitted Acquisitions as a Qualified Acquisition.
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“Qualifying Securitization Transaction” shall mean a bona fide securitization transaction effected under terms and conditions customary in the capital markets and consisting of sales of Trade Receivables by a Lincoln Party to a Special Purpose Company which in turn either sells or pledges such Trade Receivables (or undivided interests therein) to a commercial paper conduit or other financing source (whether with or without recourse to the Special Purpose Company), and as to which each of the following conditions shall be satisfied: (i) such sales to the Special Purpose Company are not accounted for under GAAP as secured loans, (ii) such transactions are, in the good faith opinion of a responsible officer of Holdings, for fair value and in the best interests of such Lincoln Party, and (iii) recourse to any Lincoln Party in connection with any such sale of Trade Receivables is limited to repurchase, substitution or indemnification obligations customarily provided for in asset securitization transactions and arising from breaches of representations or warranties made by any Lincoln Party in connection with such sale.
“Quarterly Payment Date” shall mean each March 31, June 30, September 30 and December 31 during the Commitment Period, commencing with June 30, 2021.
“Ratable Portion” or “Ratable Share” shall mean, in respect of any Lender, the quotient (expressed as a percentage) obtained at any time by dividing such Xxxxxx’s Commitment at such time by the Total Commitment Amount.
“Rate Continuation” shall mean a continuation of LIBORTerm SOFR Rate Loans having a particular Interest Period as LIBORTerm SOFR Rate Loans having an Interest Period of the same duration pursuant to Section 3.1(h).
“Rate Conversion” refers to a conversion pursuant to Section 3.1(h) of Loans of one Type into Loans of another Type and, with respect to LIBORTerm SOFR Rate Loans, from one permissible Interest Period to another permissible Interest Period.
“Rate Conversion/Continuation Request” shall have the meaning assigned to such term in Section 3.l(h).
“Reduction Notice” shall mean a notice for a request for the reduction in the Total Commitment Amount pursuant to Section 3.2 in the form of Exhibit D hereto.
“Reimbursement Agreement” shall mean any reimbursement agreement in respect of any Letter of Credit.
“Related Industries” shall mean the welding, joining and cutting industry, including the manufacture and sale of welding and cutting equipment and related consumables, other metal joining equipment and consumables, industrial gases and gas apparatus, laser and robotics for welding applications, services for industrial fabrication in general and the engineered adhesives and industrial fastener industries and other businesses of the same general type as those in which the Lincoln Parties are engaged on the Restatement Date, taken as a whole, including any businesses which are ancillary, related or complementary thereto or which are a reasonable extension thereof.
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“Reportable Event” shall mean a reportable event as that term is defined in Title IV of the Employee Retirement Income Security Act of 1974, as amended, except actions of general applicability by the Secretary of Labor under Section 110 of such Act.
“Reserve Percentage” shall mean for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, all basic, supplemental, marginal and other reserves and taking into account any transitional adjustments or other scheduled changes in reserve requirements) for a member bank of the Federal Reserve System in Cleveland, Ohio, in respect of “Eurocurrency Liabilities”.
“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restatement Date” shall mean, subject to the provisions of Article 6, April 23, 2021 or such other date which is acceptable to the Agent and the Lenders.
“Revolving Credit Borrowing” shall mean a group of Revolving Credit Loans of a single Type, made by the Lenders on a single date and as to which, as to LIBORTerm SOFR Rate Loans, a single Interest Period is in effect (i.e. any group of Revolving Credit Loans made by the Lenders having a different Type, or, as to LIBORTerm SOFR Rate Loans, having a different Interest Period, regardless of whether such Interest Period commences on the same date as another Interest Period, or made on a different date shall be considered to comprise a different Revolving Credit Borrowing).
“Revolving Credit Facility” shall mean the revolving credit established by the Lenders in favor of the Borrowers hereby in the maximum principal amount of the Total Commitment Amount.
“Revolving Credit Loan” shall mean a Loan by a Lender to the Borrowers pursuant to Section 3.1(a), and refers to a Prime Rate Loan or a LIBORTerm SOFR Rate Loan.
“Revolving Credit Note” shall mean a note executed and delivered pursuant to Section 3.l(c) hereof.
“Risk Participation Exposure” shall mean, with respect to any Lender, at any time of determination, such Xxxxxx’s Ratable Portion of the sum of (a) the aggregate entire Stated Amount of all such Letters of Credit outstanding at such time, and (b) the aggregate amount that has been drawn under such Letters of Credit but for which the Letter of Credit Issuer or the Lenders, as the case may be, have not at such time been reimbursed by the Borrowers.
“Risk Participation Fee” shall mean the fee payable to the Lenders pursuant to Section 3.4(c).
“Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions- related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union or any member state thereof, Her Majesty’s Treasury of the United Kingdom or any other Governmental Authority having jurisdiction over a
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Lincoln Party or other party to this Agreement that is relevant to economic or financial sanctions or trade embargoes, or any Person owned or controlled by a Person listed on any such Sanctions- related list, or (b) any Person that is a national of, organized in or resident in an Embargoed Country.
“Sanctions” shall mean any economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the United States government, including those administered by OFAC or the United States Department of State, or (b) the United Nations Security Council, the European Union, or any member state thereof, or HerHis Majesty’s Treasury of the United Kingdom, or other relevant sanctions authorities with jurisdiction over any party to this Agreement.
“S&P” shall mean Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, and its successors and assigns or, if it shall be dissolved or shall no longer assign credit ratings to long term debt, then any other nationally recognized statistical rating agency designated by the Agent and reasonably acceptable to the Borrowers.
“SEC” shall mean the Securities and Exchange Commission.
“Significant Subsidiary” shall mean any Domestic Subsidiary that is a “significant subsidiary” as defined in Regulation S-X, Rule 1-02(w) of the SEC, as such Regulation and Rule are in effect on the date hereof.
“SOFR” shall mean, for any day, a rate equal to the secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Adjustment” shall mean, the following:
SOFR Adjustment | Interest Period |
Ten basis points (0.10%) | For a 1-month Interest Period |
Fifteen basis points (0.15%) | For a 3-month Interest Period |
Twenty-five basis points (0.25%) | For a 6-month Interest Period |
“SOFR Floor” means a rate of interest per annum equal to zero basis points (0.00%). “SOFR Reserve Percentage” shall mean, for any day, the maximum effective percentage
in effect on such day, if any, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including, without limitation, supplemental, marginal and emergency reserve requirements) with respect to SOFR funding.
“Special Purpose Company” shall mean any Person created in connection with a Qualifying Securitization Transaction, provided that any Special Purpose Company shall not
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own any property or conduct any activities other than those properties and activities which are reasonably required to be owned and conducted in connection with the involvement of such Person in Qualifying Securitization Transactions.
“Stated Amount” of each Letter of Credit shall mean the maximum available to be drawn thereunder (regardless of whether any conditions or other requirements for drawing could then be met).
“Subordinated Indebtedness” shall mean any Indebtedness which has been subordinated to the Obligations in right and time of payment upon terms which are satisfactory to the Majority Lenders, which terms may, in the Majority Lenders’ determination, include (without limitation) limitations or restrictions on the right of the holder of such Indebtedness to receive payments and exercise remedies.
“Subsidiary” shall mean, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person directly or indirectly through Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise expressly provided in this Agreement, all references herein to “Subsidiary” shall mean a Subsidiary (direct or indirect) of Holdings.
“Swap Obligation” shall mean, with respect to any Borrower or any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority, including interest, penalties and additions to tax with respect thereto.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion).
“Term SOFR Rate” shall mean, with respect to any Term SOFR Rate Loan, for any Interest Period, the interest rate per annum determined by the Agent by dividing (the resulting quotient rounded upwards, at the Agent’s discretion, to the nearest 1/100th of 1%) (A) the Term SOFR Reference Rate for a tenor comparable to such Interest Period, as such rate is published by the Term SOFR Administrator on the day (the “Term SOFR Determination Date”) that is two (2)
U.S. Government Securities Business Days prior to the first day of such Interest Period, by (B) a number equal to 1.00 minus the SOFR Reserve Percentage. If the Term SOFR Reference Rate for the applicable tenor has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Cleveland, Ohio time) on the Term SOFR Determination Date, then the Term SOFR Reference Rate, for purposes of clause (A) in the preceding sentence, shall be the Term SOFR Reference Rate for such tenor on the first U.S. Government Securities Business Day preceding
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such Term SOFR Determination Date for which such Term SOFR Reference Rate for such tenor was published in accordance herewith, so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Term SOFR Determination Date. The Term SOFR Rate shall be adjusted automatically without notice to the Borrower on and as of (i) the first day of each Interest Period, and (ii) the effective date of any change in the SOFR Reserve Percentage.
“Term SOFR Rate Loan” means a Loan that bears interest based on Term SOFR Rate. Unless the context requires otherwise, Term SOFR Rate Loans shall include Loans that bear interest based on Daily Simple SOFR.
“Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR. “Total Commitment Amount” shall mean the aggregate amount of the Commitments of
all of the Lenders, which aggregate amount as of the Restatement Date is Five Hundred Million
Dollars ($500,000,000), as such amount may be increased or reduced pursuant to the provisions of this Agreement.
“Total Funded Debt” shall mean, as at the date of any determination, and on a Consolidated basis, the principal amount of any and all outstanding Funded Debt of Holdings and its Subsidiaries at such date, including, without limitation, the outstanding Obligations of the Borrowers to the Lenders under this Agreement at such date and any other Lender Debt at such date.
“Trade Receivables” shall mean indebtedness and other obligations owed to Holdings or any other Lincoln Party, whether constituting accounts, chattel paper, instruments or general intangibles, arising in connection with the sale of goods and services by Holdings or such Lincoln Party to commercial customers, including, without limitation, the obligation to pay any finance charges with respect thereto, and agreements relating thereto, collateral securing the foregoing, books and records relating thereto and all proceeds thereof.
“Trailing EBITDA” shall mean, as of the end of any Fiscal Quarter, EBITDA for such Fiscal Quarter, plus EBITDA for the three (3) immediately preceding Fiscal Quarters.
“Type” shall mean, when used in respect of any Revolving Credit Loan, LIBORTerm SOFR Rate or Prime Rate as applicable to such Loan.
“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
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“USA Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107- 56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“Write-Down and Conversion Powers” shall mean, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
The foregoing definitions shall be applicable to the singular and plurals of the foregoing defined terms.
SECTION 1.2 Computation of Time Periods. In this Agreement in the computation of periods of time from a specific date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”.
SECTION 1.3 Accounting Terms; Accounting Changes.
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financial statements as to which such objection shall not have been made (which, if objection is made in respect of the first financial statements delivered under Section 8.1 hereof, shall mean the audited financial statements referred to in Section 10.5 hereof); provided that, if any change in GAAP by reason of a change from GAAP to IFRS or, if applicable, portions thereof (as provided in the definition of “GAAP”) would affect in any material respect the computation of any ratio or other financial covenant, basket, calculation or requirement set forth herein or in any other Loan Document, the Agent and Holdings shall endeavor to negotiate in good faith a modification of such ratio, covenant, basket, calculation or requirement to preserve the original intent thereof in light of such change from GAAP to IFRS or, if applicable, portions thereof (subject, however, to the approval of the Majority Lenders); and until, if ever, such modification shall have been effected by an amendment to such ratio, covenant, basket, calculation or requirement approved by Holdings and the Majority Lenders as provided in Section 15.1 hereof,
(i) such ratio, covenant, basket, calculation or requirement shall continue to be computed in accordance with GAAP prior to such change to IFRS (or, if applicable, portions thereof) and (ii) Holdings shall provide to the 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, covenant, basket, calculation or requirement made before and after giving effect to such change from GAAP to IFRS (or, if applicable, portions thereof). For purposes of determining compliance with this Agreement (including, without limitation, Article 8, Article 9 and the definition of “Indebtedness”), any election by Holdings to measure any financial liability using “fair value” (as permitted by the Financial Accounting Standards Board Accounting Standards Codification Topic No. 000-00-00 – Fair Value Option, International Accounting Standard 39 Financial Instruments: Recognition and Measurement or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.
SECTION 1.4 Restatement of Existing Credit Agreement. This Agreement amends and restates the Existing Credit Agreement in its entirety. As such, this Agreement represents in part a renewal of, and is issued in substitution and exchange for, and not in satisfaction or novation of, the “Obligations” under the Existing Credit Agreement, if any. To the extent outstanding, any “Obligations” under the Existing Credit Agreement are continuing Obligations of the Borrowers upon and subject to the terms and conditions of this Agreement, and the restatement effected hereby shall not be construed to be a payment or satisfaction thereof. To the extent
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payment in full of and the satisfaction of all Obligations under this Agreement shall occur, such payment shall also be deemed to be payment in full and satisfaction of the “Obligations” under the Existing Credit Agreement.
All references to the “Credit Agreement” or words of like import in any document, instrument or agreement executed and delivered in connection with the Existing Credit Agreement (to the extent not amended or restated in connection with this Agreement or expressly superseded by any agreement, instrument or other document executed in connection with this Agreement), shall be deemed to refer, without further amendment, to this Agreement as this Agreement may be further amended, modified or extended. Each of the Borrowers hereby reaffirms each of the Loan Documents executed and delivered by or on its behalf in connection with the Existing Credit Agreement.
SECTION 1.5 BenchmarkTerm SOFR Notification. . Section 3.13 of this Agreement provides a mechanism for determining an alternative rate of interest in the event that the Term SOFR Rate is no longer available or in certain other circumstances. The Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to USD LIBOR or with respect to any alternative or successor benchmark thereto, or replacement rate therefor or thereof, including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 3.13, will be similar to, or produce the same value or economic equivalence of, USD LIBOR or any other benchmark or have the same volume or liquidity as did USD LIBOR or any other benchmark rate prior to its discontinuance or unavailability. Without prejudice to any other provision of this Agreement, each Lincoln Party and each Lender Party acknowledges and agrees for the benefit of each of the other parties: (a) USD LIBOR (i) may be subject to methodological or other changes which could affect its value, and/or (ii) may be permanently discontinued; and (b) the occurrence of any of the aforementioned events and/or a Benchmark Transition Event may have adverse consequences which may materially impact the economics of the financing transactions contemplated under this Agreement.the Term SOFR Rate or with respect to any alternative or successor rate thereto, or replacement rate therefor.
SECTION 1.6 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its equity interests at such time.
AMOUNT AND NATURE OF CREDIT
SECTION 2.1 Amount and Nature of Credit. Subject to the terms and conditions set forth in this Agreement, each of the Lenders hereby establishes, on a several basis, a facility
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pursuant to which Revolving Credit Loans shall be available to the Borrowers on a revolving credit basis in an amount, in the aggregate as to all of the Lenders, not to exceed the Total Commitment Amount, of which an amount not to exceed the LC Sublimit shall be available for the issuance of Letters of Credit.
SECTION 2.2 Purpose of Facility. The Borrowers shall use the proceeds of Revolving Credit Loans hereunder (a) for the general corporate working capital purposes of Holdings and its Subsidiaries and (b) for other general corporate purposes, including, without limitation, but subject to the terms and conditions hereinafter set forth, the acquisition of other businesses. The Borrowers shall use the Letters of Credit for the purposes set forth in Article 5 and for general corporate purposes of the Lincoln Parties.
SECTION 3.1 Revolving Credit Loans.
| (b) | Revolving Credit Borrowings. |
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outstanding more than ten (10) Revolving Credit Borrowings consisting of LIBORTerm SOFR Rate Loans.
| (c) | Notes. |
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the same extent that the Agent may rely on a written Notice of Borrowing. Each Notice of Borrowing and telephonic Notice of Borrowing shall be irrevocable and binding on the Borrowers and subject to the indemnification provisions of this Article 3. The Borrowers shall bear all risks related to the giving of a Notice of Borrowing telephonically or by such other method of transmission as Holdings on behalf of the Borrowers shall elect. The Agent shall give to each Lender reasonably prompt notice by telecopier or email on the day received of each such Notice of Borrowing.
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Each such request for a conversion or continuation (a “Rate Conversion/Continuation Request”) in respect of Revolving Credit Loans comprising a Revolving Credit Borrowing shall be transmitted by Holdings on behalf of the Borrowers to the Agent, by telecopier, email or such other means as the Agent agrees to in writing, in substantially the form of Exhibit C hereto, specifying (A) the identity and amount of the Revolving Credit Loans comprising a Revolving Credit Borrowing that the Borrowers request be converted or continued, (B) the Type of Revolving Credit Loans into which such Revolving Credit Loans are to be converted or continued, (C) if such notice requests a Rate Conversion, the date of the Rate Conversion (which shall be a Banking Day) and (D) in the case of Revolving Credit Loans comprising a Revolving Credit Borrowing being converted into or continued as LIBORTerm SOFR Rate Loans, the Interest Period for such LIBORTerm SOFR Rate Loans. The Borrowers may make Rate Conversion/Continuation Requests telephonically so long as written confirmation of such Revolving Credit Borrowing is received by the Agent by 1:00 p.m. (Cleveland, Ohio time) on the same day of such telephonic Rate Conversion/Continuation Request. The Agent may rely on such telephonic Rate Conversion/Continuation Request to the same extent that the Agent may rely on a written Rate Conversion/Continuation Request. Each Rate Conversion/Continuation Request, whether telephonic or written, shall be irrevocable and binding on the Borrowers and subject to the indemnification provisions of this Article 3. The Borrowers shall bear all risks related to its giving any Rate Conversion/Continuation Request telephonically or by such other method of transmission as Holdings on behalf of the Borrowers shall elect. The Agent shall promptly deliver on the day received a copy of each such Rate Conversion/Continuation Request to the Lenders by telecopier or email.
SECTION 3.2 Optional Reductions; Termination Of Commitments. The Borrowers may, at any time and without payment of premium or penalty except as set forth in Section 3.3, terminate in whole or from time to time in part reduce the Total Commitment Amount of the Lenders by delivering to the Agent, not later than 12:00 noon (Cleveland, Ohio time) three (3)
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Banking Days immediately preceding the effective date of the reduction, a notice of such reduction (a “Reduction Notice”), stating the amount by which the Total Commitment Amount is to be reduced and the effective date of such reduction. Each reduction shall be subject to the following: (i) each such reduction shall be in an aggregate principal amount of not less than Five Million Dollars ($5,000,000) or any integral multiple of $1,000,000 in excess thereof and (ii) each such reduction shall be in an amount such that the Total Commitment Amount, as so reduced, is not less than an amount equal to the aggregate of (A) the aggregate principal amount of the Revolving Credit Loans then outstanding hereunder, plus (B) the aggregate Risk Participation Exposure. The Borrowers shall not be permitted to reduce the Total Commitment Amount unless, concurrently with any reduction, the Borrowers shall make a principal payment on each Lender’s then outstanding Revolving Credit Loans in an amount equal to the excess, if any, of such Revolving Credit Loans, plus the aggregate Risk Participation Exposure, over the Commitment of such Lender as so reduced. The Agent shall promptly notify each Lender of its proportionate amount and the date of each such reduction. From and after each such reduction, the Facility Fees payable hereunder shall be calculated upon the Commitments of the Lenders as so reduced. Each reduction of the aggregate Commitments shall be made among the Lenders in accordance with their respective Ratable Portions and shall be allocated ratably to the Total Commitment Amount. Any partial reduction in the Total Commitment Amount shall be irrevocable and effective during the remainder of the Commitment Period. If the Borrowers terminate in whole the Commitments of the Lenders, on the effective date of such termination (the Borrowers having prepaid in full the unpaid principal balance, if any, of the Notes outstanding, together with all interest (if any) and Facility Fees accrued and unpaid and all other amounts due to the Agent or the Lenders hereunder, including, without limitation, the satisfaction of all Obligations in respect of Letters of Credit), all of the Notes outstanding shall be delivered to the Agent marked “Canceled” and redelivered to the Borrowers.
SECTION 3.3 Repayments and Prepayments; Prepayment Compensation.
(ii) in the case of any Prime Rate Loan, upon notice to the Agent not later than 12:00 noon (Cleveland, Ohio time) on the date fixed for such prepayment, in each case stating the proposed date and aggregate principal amount of the prepayment, and, upon such notice, shall prepay the outstanding aggregate principal amount of the Revolving Credit Loans comprising part of the same Revolving Credit Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (A) each partial prepayment of LIBORTerm SOFR Rate Loans shall be in an aggregate principal amount of Three Million Dollars ($3,000,000) or additional increments of One Million Dollars ($1,000,000) in excess thereof, and (B) each partial prepayment of Prime Rate Loans shall be in
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an aggregate principal amount of Five Hundred Thousand Dollars ($500,000) or additional increments of One Hundred Thousand Dollars ($100,000) in excess thereof. Any prepayment of any LIBORTerm SOFR Rate Loans made on other than the last day of an Interest Period shall obligate the Borrowers to reimburse the Lenders in respect thereof pursuant to Section 3.3(d). Upon receipt by the Agent of a notice pursuant to this Section 3.3(b), the Agent shall promptly forward a copy of such notice, by telecopier or email in the case of a prepayment of LIBORTerm SOFR Rate Loans comprising Revolving Credit Borrowing, to each of the Lenders.
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funds, to the Agent for distribution, if and as appropriate, to the Lenders and, once paid, none of such fees shall be refundable under any circumstances.
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Prime Rate Percentage” corresponding to the Net Leverage Ratio as of the Interest Determination Date for such Interest Adjustment Date.
| (d) | Interest Rate Determination. |
SECTION 3.6 Payments and Computations.
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maintained at the Payment Office. Payments received after 12:00 noon (Cleveland, Ohio time) on any day shall be deemed to have been received on the next succeeding Banking Day. The Agent will promptly thereafter, on the same Banking Day, cause to be distributed like funds relating to the payment of principal, interest, Facility Fees, or other fees or other amounts which may be received in respect of the Obligations of the Borrowers under this Agreement ratably (other than amounts payable pursuant to the express terms of this Agreement solely to the Agent or the Letter of Credit Issuer, as the case may be) to each of the Lenders for the account of its respective Lending Office, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Lending Office. The funds so distributed to each Lender shall in each case be applied by such Lender in accordance with the terms of this Agreement.
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date such Lender repays such amount to the Agent, at the Federal Funds Rate plus the amount of any costs, expenses, liabilities or losses incurred by the Agent in connection with its distribution of such funds, unless such costs, expenses, liabilities or losses are the result of the gross negligence or willful misconduct of the Agent.
SECTION 3.7 Reserves; Taxes; Indemnities.
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Adjustment Dates with respect to such LIBORTerm SOFR Rate Loans, as additional consideration hereunder, such additional amounts as will fully compensate such Lender for such increased cost or reduced amount. A certificate as to any such increased cost or reduced amount, setting forth the calculations therefor, shall be submitted by such Lender to the Borrowers and shall be rebuttably presumptive evidence of the amount thereof. Notwithstanding any other provision of this Agreement, after any such demand for compensation by any Lender, the Borrowers, upon at least three (3) Banking DaysU.S. Government Securities Business Days’ prior written notice to such Lender through the Agent, may prepay the affected LIBORTerm SOFR Rate Loans in full or convert all LIBORTerm SOFR Rate Loans to Prime Rate Loans regardless of the Interest Period of any thereof. Any such prepayment or conversion shall entitle the Lenders to prepayment compensation provided for in Section 3.3 hereof.
| (c) | [Reserved]. |
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If any such change shall make it unlawful for any Lender to continue in effect the funding in the applicable Eurodollar market of any LIBORTerm SOFR Rate Loan previously made by it hereunder, such Lender shall, upon the happening of such event, notify the Borrowers, the Agent and the other Lenders thereof in writing stating the reasons therefor, and the Borrowers shall, on the earlier of (i) the last day of the then current Interest Period or (ii) if required by such Law, regulation or interpretation, on such date as shall be specified in such notice, either convert all LIBORTerm SOFR Rate Loans to Prime Rate Loans to the extent permissible under this Agreement or prepay all LIBORTerm SOFR Rate Loans to the Lenders in full. Any such prepayment or conversion shall entitle the Lenders to prepayment compensation as provided in Section 3.3 hereof.
SECTION 3.8 Capital Adequacy; Liquidity. If any Lender shall have determined, that, whether in effect at the date of this Agreement or hereafter in effect, any applicable Law regarding capital adequacy or liquidity, or any Change in Law, or compliance by any Lender (or its Lending Office) with any request or directive regarding capital adequacy or liquidity (whether or not having the force of Law) of any such Governmental Authority has or would have the effect of reducing the rate of return on such Lender’s capital allocated to the transactions contemplated by this Agreement (or the capital or liquidity of its holding company) as a consequence of its obligations hereunder to a level below that which such Lender (or its holding company) could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s policies or the policies of its holding company with respect to capital adequacy and liquidity) by an amount deemed by such Lender to be material, then from time to time, within 15 days after demand by such Lender (with a copy to the Agent), the Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender (or its holding company) for such reduction; provided that such Lender shall be generally assessing such amounts on a non-discriminatory basis against borrowers under agreements having provisions similar to this Section 3.8. Each Lender will designate a different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Lender, be otherwise disadvantageous to such Lender. A certificate of any Lender claiming compensation under this section and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive and binding in the absence of manifest error. In determining such amount, such Lender may use any reasonable averaging and attribution methods. The protection of this Section 3.8 shall be available to each Lender regardless of any possible contention of the invalidity or inapplicability of the Law or other condition which shall have been imposed.
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pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law.
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which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of Holdings or the Agent), whichever of the following is applicable:
| (B) | Internal Revenue Service Form W-8ECI (or successor thereto), |
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date such form expires or becomes obsolete. Notwithstanding anything to the contrary herein, a Lender Party shall not be required to deliver any form pursuant to this Section
3.9 that such Lender Party is not legally able to deliver.
SECTION 3.10 No Waiver; Reimbursement Limitation. Failure on the part of any Lender to demand compensation, payment, or reimbursement of amounts under any of Sections 3.7, 3.8 and 3.9, above, with respect to any period shall not constitute a waiver of such Xxxxxx’s rights to demand such compensation, payment, or reimbursement in such period or in any other period; provided, however, that no Lender shall be entitled to compensation, payment, or reimbursement of amounts under any of Sections 3.7, 3.8 and 3.9 for any amounts incurred or accruing more than 270 days prior to the giving of notice to Holdings of any cost, reduction, Taxes or other amount of the nature described in any of such Sections, and provided further, however, that, if such cost, reduction, Tax or other amount is owing by a Lender by reason of a an audit or assessment by Governmental Authority or Change in Law having effect on a date earlier than the date on which such Lender receives notice thereof, then the 270-day period referred to above shall be extended to include such period of retroactive effect.
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SECTION 3.11 Xxxxxx’s Obligation to Mitigate; Replacement of Lenders.
SECTION 3.12 Optional Increase of Commitments. At any time prior to the date that is one hundred eighty (180) days prior to the last day of the Commitment Period, if no Incipient Default or Event of Default shall have occurred and be continuing (or would result after giving effect thereto), the Borrowers, may, if they so elect, increase the aggregate amount of the Commitments (each such increase to be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $10,000,000). The Borrowers shall first request the existing Lenders in writing to increase their respective Commitments (proportionately based on their Ratable Shares or on such other basis as the Borrowers and the existing Lenders may agree) to accommodate the increase requested by the Borrowers. If, within fifteen (15) days following their receipt of the Borrowers’ request, existing Lenders fail to agree to increase their respective Commitments in an aggregate amount at least equal to the increase requested by the Borrowers, the Borrowers may designate one or more financial institutions not theretofore a Lender to become a Lender (such designation to be effective only with the prior written consent of the Agent and the Letter of Credit Issuer, which consents will not be unreasonably withheld or delayed, and only if each such financial institution accepts a Commitment in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000) in respect of the portion of the requested increase not accepted by the existing Lenders. Upon execution and delivery by the Borrowers and each such Lender or other financial institution of an instrument (a “Commitment Acceptance”) in form reasonably satisfactory to the Agent, such existing Lender shall have a Commitment as therein set forth or such other financial institution shall become a Lender with a Commitment as therein set forth and shall have all the rights and obligations of a Lender with such Commitment hereunder; provided:
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On the date of any such increase, the Borrowers shall be deemed to have represented to the Agent and the Lenders that the conditions set forth in clauses (a) through (e) above have been satisfied.
Upon any increase in the aggregate amount of the Commitments pursuant to this Section 3.12:
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SECTION 3.13 Rate Unascertainable; Increased Costs; Illegality; Benchmark Replacement Setting. Notwithstanding anything to the contrary herein or in any other Loan Document:
then the Agent shall have the rights specified in Section 3.13(c).
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below) the Agent makes a determination under Section 3.13(a) and the Borrowers have previously notified the Agent of its selection of, conversion to or renewal of a Term SOFR Rate Loan and the applicable Benchmark Replacement has not yet gone into effect, such notification shall be deemed to provide for selection of, conversion to or renewal of a Prime Rate Loan. If any Lender notifies the Agent of a determination under Section 3.13(b), the Borrowers shall, subject to the Borrowers’ indemnification Obligations under Section 3.7(d), as to any Loan of the Lender to which the Term SOFR Rate applies, on the date specified in such notice either convert such Loan to a Prime Rate Loan or a Term SOFR Rate Loan with a tenor otherwise available with respect to such Loan or prepay such Loan in accordance with Section 3.3(b). Absent due notice from the Borrowers of conversion or prepayment, such Loan shall automatically be converted to a Prime Rate Loan upon such specified date.
| (d) | Benchmark Replacement Setting. |
(b)(i) Replacing Future Benchmarks. If any Benchmark Transition Event occurs after the date hereof (other than as described abovedetermined in accordance with respect to USD LIBOR),clause (2) of the then-current definition of “Benchmark will be replaced with theReplacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after the later to occur of (i) as of 5:00 p.m. (New York City time) on the fifth (5th) Banking Day after the date notice of such Benchmark Replacement is provided to the Lenders and the Borrowers (together, if applicable, with an without any amendment to this Agreement implementing such Benchmark Replacement and any applicable Benchmark Replacement Conforming Changes) or (ii) such other date as may be determined by the Agent and specified by notice from the Agent to the Lenders and the Borrowers, in each case, without any , or further action or consent of any other party to, this Agreement or any other Loan Document, so long as the Agent has not received, by such time (or, in the case of clause
(ii) above, such time as may be specified by the Agent as a deadline to receive objections, but in any case, no less than five (5) Banking Days after the date such notice is provided to the Lenders and the Borrowers),, written notice of objection to such Benchmark Replacement from Lenders comprising the Majority Lenders. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory
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supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrowers may revoke any request for a borrowing of, conversion to or continuation of Loans to be made, converted or continued that would bear interest by reference to such Benchmark until the Borrowers’ receipt of notice from the Agent that a Benchmark Replacement has replaced such Benchmark, and, failing that, the Borrowers will be deemed to have converted any such request into a request for a borrowing of or conversion to Prime Rate Loans. During the period referenced in the foregoing sentence, the component of Prime Rate based upon the Benchmark will not be used in any determination of Prime RateIf the Benchmark Replacement is Daily Simple SOFR, interest shall be payable on a quarterly basis.
(c)(ii) Benchmark Replacement Conforming Changes. In connection with the implementation anduse, administration , adoption or implementation of a Benchmark Replacement (whether in connection with the replacement of USD LIBOR or any future Benchmark),, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d)(iii) Notices; Standards for Decisions and Determinations. The Agent will promptly notify the Borrowers and the Lenders of (iA) the implementation of any Benchmark Replacement, and (iiB) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement Conforming Changes. . The Agent will notify the Borrowers of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to paragraph (iv) below and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.13, including, without limitation, any determination with respect to a tenor, rate or adjustment, or implementation of any Benchmark Replacement Conforming Changes, the timing of implementation of any Benchmark Replacement or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding on all parties hereto absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.13.
(e)(iv) Unavailability of Tenor of Benchmark. AtNotwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (iA) if the then- current Benchmark is a term rate (including Term SOFR or USD LIBOR),or based on a term rate and either (I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such Xxxxxxxxx has provided a public statement or publication of information announcing that
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any tenor for such Benchmark is not or will not be representative, then the Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove any tenor of such Benchmark that is unavailable or non-representative tenor; and (B) if a tenor that was removed pursuant to clause (A) above either (I) is subsequently displayed on a screen or information service for sucha Benchmark (including xxxx Xxxxxxxxx Replacement) settings and (ii) if such tenor becomes available or representative,or (II) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate anysuch previously removed tenor for such Benchmark (including any Benchmark Replacement) settings.
(f)(vi) Definitions. As used in this Section 3.13::
“Available Tenor” shall meanmeans, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then- currentsuch Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date. and not including, for the avoidance of doubt, any tenor of such Xxxxxxxxx that is then-removed from the definition of “Interest Period” pursuant to clause (iv) of this Section.
“Benchmark” shall meanmeans, initially, USD LIBORthe Term SOFR Reference Rate; provided that if a replacement for the Benchmark Transition Event has occurred pursuant to this Section 3.13with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof. pursuant to this Section.
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Tenor:
“Benchmark Replacement” shall mean, for means, with respect to any Available
(a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, and 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration; or
| (1) | (2) for purposes of clause (b) of this Section |
3.13,B) the SOFR Adjustment for a 1-month Interest Period;
| (2) | the sum of: (aA) the alternate benchmark rate and |
(b) an adjustment (which may be a positive or negative value, or zero), in each case, that has been selected pursuant to this clause (2) by the Agent and the Borrower as the replacement for such Available Tenor of such Benchmark Borrowers, giving due consideration to (x) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (y) any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for determining a benchmark rate as a replacement to the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities at such time; and (B) the related Benchmark Replacement Adjustment;
provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the SOFR Floor, the Benchmark Replacement will be deemed to be the SOFR Floor for allthe purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Conforming Changes” shall mean, with respect to; and provided further, that any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Prime Rate,” the definition of “Banking Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in shall be applied in a manner substantially consistent with market
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practice (or, if the Agent decides that adoption of any portion of such market practice is notto the extent administratively feasible or if the Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).determined by the Agent in its sole discretion.
“Benchmark Transition Event” shall meanReplacement Adjustment” means, with respect to any then-current Benchmark (other than USD LIBOR), the occurrence of replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Agent and the Borrowers, giving due consideration to (A) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (B) any evolving or then- prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means a date and time determined by the Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, if such Benchmark is a term rate or is based on a term rate, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
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“Benchmark Transition Event” means, the occurrence of one or more of the following events, with respect to the then-current Benchmark:
(b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.(or such component thereof); or
“Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Agent in accordance with the conventions for this rate recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.
“Early Opt-in Effective Date” shall mean, with respect to any Early Opt-in Election, the sixth (6th) Banking Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Banking Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
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“Early Opt-in Election” means the occurrence of:
| (1) | a notification by the Agent to (or the request by the Borrower to the Agent to notify) each of the other parties hereto that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and |
| (2) | the joint election by the Agent and the Borrowers to trigger a fallback from USD LIBOR and the provision by the Agent of written notice of such election to the Lenders. |
“Floor” shall mean the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to USD LIBOR.
For the avoidance of doubt, if such Benchmark is a term rate or is based on a term rate, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Section 4.4(d) titled “Benchmark Replacement Setting” and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with this Section 4.4(d) titled “Benchmark Replacement Setting.”
“Relevant Governmental Body” shall meanmeans the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or any successor thereto.
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“SOFR” shall mean, for any Banking Day, a rate per annum equal to the secured overnight financing rate for such Banking Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx. (or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rate from time to time), on the immediately succeeding Banking Day.
“Term SOFR” shall mean, for the applicable corresponding tenor, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“USD LIBOR” shall mean the London interbank offered rate for U.S. dollars.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
PRO RATA TREATMENT; DEFAULTING LENDERS
SECTION 4.1 Pro Rata Treatment. Except as required by Section 3.7, Section 4.2 or Section 12.4(b) or as permitted under Section 3.9, each Revolving Credit Borrowing, each participation in a Letter of Credit, each payment or prepayment of principal of any Revolving Credit Borrowing, each payment of interest on the Revolving Credit Loans, each payment of the Facility Fees, each payment of Risk Participation Fees, each reduction of the Commitments, each Rate Conversion or Rate Continuation of Revolving Credit Loans comprising a Revolving Credit Borrowing shall be allocated among the Lenders in accordance with each Lender’s Ratable Portion of the Total Commitment Amount (or if the Commitments shall have expired or been terminated, in accordance with the respective principal amounts of each Lender’s Revolving Credit Loans).
SECTION 4.2 Defaulting Lenders.(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
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applied at such time or times as may be determined by the Agent as follows: first, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Letter of Credit Issuer hereunder; third, to Cash Collateralize the Letter of Credit Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 4.3; fourth, as Holdings may request (so long as no Incipient Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by the Agent and Holdings, to be held in a deposit account and released pro rata in order to (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (B) Cash Collateralize the Letter of Credit Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 4.3; sixth, to the payment of any amounts owing to the Lenders, or the Letter of Credit Issuer as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Letter of Credit Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Incipient Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or disbursements in respect of a drawing under a Letter of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and
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SECTION 4.3 Cash Collateral. At any time that there shall exist a Defaulting Lender, within one (1) Banking Day following the written request of the Agent or the Letter of Credit Issuer (with a copy to the Agent) the Borrowers shall Cash Collateralize the Letter of Credit Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 4.2(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
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Cash Collateral, and the Letter of Credit Issuer may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations.
SECTION 5.1 Letters of Credit.
(ii) the amount of such Letter of Credit (which shall be a sum certain), (iii) the beneficiary and account party of such Letter of Credit and (iv) the drafts and other documents (if any) necessary to be presented to the Letter of Credit Issuer upon a drawing thereunder. To the extent that any of the terms of the above-referenced Reimbursement Agreement conflict with the terms of this Agreement, the terms of this Agreement shall control.
SECTION 5.2 Letter of Credit Issuer Relationship with Xxxxxxx.
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sentence) a participation in any payment which the Letter of Credit Issuer makes for the account of the Borrowers under any such Letter of Credit for which payment the Letter of Credit Issuer is not otherwise immediately reimbursed by the Borrowers in an amount equal to such Xxxxxx’s Ratable Portion. The aggregate principal amount of all outstanding Revolving Credit Loans of such Lender, plus such Xxxxxx’s aggregate Risk Participation Exposure (after taking into effect such Xxxxxx’s Ratable Portion of the risk participation created under this Section 5.2) shall not exceed such Xxxxxx’s Commitment in effect from time to time. The sale of the risk participation by the Letter of Credit Issuer and the purchase thereof by each Lender, respectively, shall occur simultaneously with and shall be evidenced by each Letter of Credit.
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SECTION 5.3 Resignation and Removal of Letter of Credit Issuer. The Letter of Credit Issuer (or any successor) may at any time resign (so long as, at the same time, the institution then serving as the Letter of Credit Issuer also resigns as Agent in the manner provided in Section 13.13, below, unless Holdings, on behalf of the Borrowers, has waived in writing the requirements of this parenthetical) as such by giving thirty (30) days’ prior written notice to the Agent, the Borrowers and each Xxxxxx; and the Majority Xxxxxxx may remove the Letter of Credit Issuer at any time with or without cause by giving written notice to the Agent, the Letter of Credit Issuer and the Borrowers. In any such case, the Majority Lenders may appoint a successor to the resigned or removed Letter of Credit Issuer (the “Former LC Bank”), which successor shall (unless waived by Holdings, on behalf of the Borrowers, in writing) also be successor Agent, provided that the Majority Xxxxxxx obtain the Borrowers’ prior written consent to the successor (which consent shall not be unreasonably withheld), by giving written notice to the Agent, the Borrowers, the Former LC Bank and each Lender not participating in the appointment; provided, however, that, if at the time of the proposed resignation or removal of a Letter of Credit Issuer, any Borrower is the subject of an action referred to in Section 11.7 or any other Event of Default shall have occurred and be continuing, the Borrowers’ consent shall not be required. In the absence of a timely appointment, the Former LC Bank shall have the right (but not the duty) to make a temporary appointment of any Lender (but only with that Xxxxxx’s consent) to act as its successor pending an appointment pursuant to the immediately preceding sentence. In either case, the successor Letter of Credit Issuer shall deliver its written acceptance of appointment to the Borrowers, the Agent, each Lender and the Former LC Bank, whereupon
(a) the Former LC Bank shall execute and deliver such assignments and other writings as the
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successor Letter of Credit Issuer may reasonably require to facilitate its being and acting as the Letter of Credit Issuer, (b) the successor Letter of Credit Issuer shall in any event automatically acquire and assume all the rights and duties as those prescribed for the Letter of Credit Issuer by this Article 5 and (c) the Former LC Bank shall be discharged from its duties and obligations under this Agreement and the other Loan Documents. Notwithstanding anything to the contrary contained in the foregoing, the Former LC Bank shall continue to enjoy all of the rights and remedies (as against the Borrowers and the other Lenders) provided to the Letter of Credit Issuer hereunder with respect to any and all Letters of Credit which are outstanding on the effective date of its resignation or removal and which are not replaced by Letters of Credit issued by its successor or otherwise canceled.
OPENING COVENANTS; CONDITIONS TO RESTATEMENT DATE
SECTION 6.1 Opening Covenants. Prior to or concurrently with the execution and delivery of this Agreement, Holdings shall, on behalf of the Borrowers, furnish to Agent originals or copies for delivery to each Lender and the Letter of Credit Issuer of the following:
SECTION 6.2 Prior to Restatement Date. Prior to or concurrently with the Restatement Date, Holdings shall, on behalf of the Borrowers, furnish to the Agent originals or copies for delivery to each Lender and the Letter of Credit Issuer of, or, if applicable, pay to the Agent, the following:
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(j)(i) Other Matters. Such other documents, certificates and other matters as the Agent may reasonably request of Holdings and any of the other Borrowers.
CONDITIONS TO ALL CREDIT EVENTS
On the date of each Credit Event, such Credit Event shall constitute a representation and warranty by the Borrowers that the following are and will be true as of such date and after giving effect to such Credit Event, and each of the following shall be true as a condition precedent thereto:
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SECTION 7.1 Representation Bringdown. The representations and warranties contained in Article 10, other than the last sentence of Section 10.5 which is only required on the Restatement Date, are true and correct in all respects on and as of the date of such Credit Event with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date;
SECTION 7.2 Compliance with Agreement. The Borrowers shall be in compliance with all other terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed, and at the time of and immediately after such Credit Event, no Event of Default or Incipient Default shall have occurred and be continuing; and
SECTION 7.3 No Material Adverse Change. There has been no event since the date hereof which would or might reasonably be expected to have a Material Adverse Effect.
ARTICLE 8 AFFIRMATIVE COVENANTS
From and after the Restatement Date and for so long thereafter as any of the Obligations remain unpaid and outstanding, or any Lender shall have any Commitment outstanding, or any Loans shall remain unpaid, the Borrowers shall perform and observe, and shall cause all of the other Lincoln Parties to perform and observe, all of the following covenants:
SECTION 8.1 Financial Statements.
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as are customarily included in unqualified reports of independent accountants in conformity with the recommendations and requirements of the American Institute of Certified Public Accountants (or any successor organization); provided that delivery of Holdings’ annual report for any Fiscal Year of Holding’s on Form 10-K filed with the SEC shall satisfy the requirements of this Section 8.1(b).
| (c) | Officer’s Certificates. Holdings shall furnish to each Lender the following: |
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may reasonably require to cause the provisions of this Agreement and the other Loan Documents immediately after such change to have the same effect as that intended by the provisions of this Agreement and the other Loan Documents immediately prior to such change or (ii) such change is being made to conform the fiscal year of a Subsidiary to the Fiscal Year of Holdings.
Documents required to be delivered pursuant to Section 8.1(a), (b), (d) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the Banking Day (i) on which Holdings has posted such documents or has provided a link thereto on Holdings’ website on the Internet at the website address; or (ii) on which such documents have been posted on Holdings’ behalf on an intranet or Internet website, if any, to which each Lender and the Agent have access (whether a commercial or third party website or whether sponsored by the Agent); provided that: (A) Holdings shall deliver paper copies of such documents to the Agent or any Lender, in each case that requests Holdings to deliver such paper copies, until a written notice to cease delivering paper copies is given to Holdings by the Agent or such Lender,
(B) Holdings shall notify the Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Agent by electronic mail electronic versions (i.e. soft copies) of such documents, and (C) unless such documents have been posted pursuant to clause (i) or clause (ii), above, and Holdings has notified the Agent and each Lender of such posting pursuant to clause (B), above, in each case prior to 5:00 p.m. (Cleveland, Ohio time) on the applicable date, such documents shall be deemed to have been delivered on the following Banking Day.
| (i) | the occurrence of a Default under ERISA; |
| (ii) | with respect to any Plan, any Reportable Event; |
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appointment of a trustee to administer, any Plan, or the receipt by Holdings or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the Pension Benefit Guaranty Corporation with respect to such Multiemployer Plan (including a copy of any notice thereof); or
SECTION 8.3 Insurance. Each Lincoln Party shall keep itself and all of its insurable properties insured at all times to such extent, by such insurers, and against such hazards and liabilities as is customarily carried by prudent businesses of like size and enterprise; and promptly upon the Agent’s written request upon and during the continuance of an Event of Default, Holdings shall furnish to the Agent such information about any such insurance as the Agent may from time to time reasonably request, which information shall be prepared in form and detail satisfactory to the Agent and certified by an appropriate officer of Holdings.
SECTION 8.4 Money Obligations. Each Lincoln Party shall pay, in full (a) all Taxes, assessments and governmental charges and levies (except only those so long as and to the extent that the same shall be contested in good faith by appropriate and timely proceedings) for which such Lincoln Party may be or become liable, or to which any or all of the properties of such Lincoln Party may be or become subject, prior to the date on which the failure to make such payment would reasonably be expected to have a Material Adverse Effect, and (b) all of its other obligations calling for the payment of money (except only those so long as and to the extent that the same shall be contested in good faith and except further trade accounts payable consistent with such Lincoln Party’s past practice) before such payment becomes overdue where the failure to make such payment would reasonably be expected to have a Material Adverse Effect.
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Borrower, to discuss the affairs, finances and accounts of the Borrowers and the other Subsidiaries with each Borrower’s officers and, with the consent of Holdings (which consent will not be unreasonably withheld), to visit the other offices and properties of the Borrowers and the Subsidiaries and to make copies and extracts from the books and records of such Borrowers and Subsidiaries, all at such reasonable times and as often as may be reasonably requested; and
SECTION 8.6 Franchises. Each Lincoln Party shall preserve and maintain at all times its corporate existence, rights and franchises, except where the failure to maintain any such corporate right or franchise would reasonably not be expected to have a Material Adverse Effect; provided, however, that this Section 8.6 shall not prevent any merger or consolidation permitted by Section 9.3 hereof.
SECTION 8.7 Certain Subsidiaries to Join as Borrower. In the event that at any time after the Restatement Date any Borrower directly or indirectly has any Significant Subsidiary that is not a Borrower, Holdings shall notify the Agent in writing of such event, identifying the Significant Subsidiary in question and referring specifically to the rights of the Agent and the Lenders under this Section 8.7. Holdings shall, within 30 days following request therefor from the Agent, cause such Significant Subsidiary to deliver to the Agent (i) a joinder to this Agreement and such other Loan Documents as the Agent reasonably requires to cause such Significant Subsidiary to be a Borrower hereunder and (ii) if such Significant Subsidiary is a corporation, resolutions of the Board of Directors (or other managing body, in the case of any entity other than a corporation) of such Significant Subsidiary, certified by the Secretary or an Assistant Secretary of such Significant Subsidiary as duly adopted and in full force and effect, authorizing the execution and delivery thereof, or if such Significant Subsidiary is not a corporation, such other evidence of the authority of such Significant Subsidiary to execute such joinder and other Loan Documents, as the Agent may reasonably request.
SECTION 8.8 Most Favored Covenant Status. If any one or more of the Borrowers at any time after the Restatement Date, issues or guarantees any unsecured Indebtedness for money borrowed or represented by bonds, notes, debentures or similar securities in an aggregate amount exceeding $100,000,000, to any lender or group of lenders acting in concert with one another, or one or more institutional investors, pursuant to a loan agreement, credit agreement, note purchase agreement, indenture, guaranty or other similar instrument, which agreement, indenture, guaranty or instrument, includes affirmative or negative business or financial covenants (or any events of default or other type of restriction which would have the practical effect of any affirmative or negative business or financial covenant, including, without limitation, any “put” or mandatory prepayment of such Indebtedness upon the occurrence of a “change of control”) which are applicable to such Borrower or Borrowers, other than those set forth herein or in any
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of the other Loan Documents, Holdings shall promptly so notify the Agent and the Lenders and, if the Agent shall, at the instruction of the Majority Lenders, so request by written notice to Holdings, the Borrowers, the Agent and the Lenders shall promptly amend this Agreement to incorporate some or all of such provisions, in the discretion of the Majority Lenders, into this Agreement and, to the extent necessary and reasonably desirable to the Majority Lenders, into any of the other Loan Documents.
SECTION 8.9 Compliance With Laws. (i) Each Lincoln Party shall comply in all respects with its Articles of Incorporation or Certificate of Incorporation (or equivalent organization documentation), as the case may be, and Regulations or By-laws, as the case may be (or equivalent organization documentation), and all applicable occupational safety and health Laws, federal and state securities Laws, product safety Laws, Environmental Laws and every other Law if, except with respect to Laws described in clause (ii) hereof, non-compliance with such Law or order would have or might reasonably be expected to have a Material Adverse Effect, and (ii) each Lincoln Party shall comply in all material respects with all applicable Anti- Corruption Laws, applicable Sanctions and Anti-Money Laundering Laws; provided, however, that this Section 8.9 shall not apply to any noncompliance if and to the extent that the same is being contested in good faith by timely and appropriate proceedings which are effective to stay enforcement thereof and against which appropriate reserves have been established. Without limiting the generality of the foregoing, Holdings will maintain in effect and enforce policies and procedures designed to ensure compliance in all material respects by the Lincoln Parties and their respective directors, officers, employees and (to the extent reasonably within their control) agents with Anti-Corruption Laws and applicable Sanctions.
SECTION 8.10 Properties. Each Lincoln Party shall maintain all assets in any material respect necessary to its continuing operations in good working order and condition, ordinary wear and tear excepted.
SECTION 8.11 Use of Proceeds. The Borrowers shall use the proceeds of the Loans and the Letters of Credit only for the purposes specified in Section 2.2. Without limiting the generality of the foregoing, no Borrower will request any Loan or Letter of Credit, and no Borrower, Subsidiary or its or their respective directors, officers or employees shall use, and each Borrower shall use reasonable best efforts to ensure that its and its Subsidiaries’ respective agents (to the extent such agents are reasonably within their control) shall not use, the proceeds of any Loan or Letter of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws or applicable Anti-Money Laundering Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Embargoed Country, in violation of Sanctions applicable to any party to this Agreement or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
SECTION 8.12 Compliance with Anti-Money Laundering Laws. The Borrowers shall, and shall cause their respective Subsidiaries to, provide such information and take such actions as are reasonably requested by the Agent or any Lender in order to assist the Agent and the Lenders in maintaining compliance with applicable Anti-Money Laundering Laws.
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From and after the Restatement Date and for so long thereafter as any of the Obligations remain unpaid and outstanding, or any Lender shall have any Commitment outstanding, or any Loans shall remain unpaid, the Borrowers shall perform and observe, and shall cause all of the other Lincoln Parties to perform and observe, all of the following covenants:
SECTION 9.1 ERISA Compliance. The Borrowers shall not permit (i) any Plan to fail to satisfy the minimum funding standards of ERISA or the Code, for any plan year or part thereof or a waiver of such standards that is sought or granted under section 412 of the Code, (ii) Holdings or any ERISA Affiliate to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise Tax provisions of the Code relating to employee benefit plans (as defined in Section 3 of ERISA), or (iii) Holdings or any Subsidiary to establish or amend any employee welfare benefit plan (as defined in Section 3 of ERISA) that provides post-employment welfare benefits in a manner that would increase the liability of Holdings or any Subsidiary thereunder, unless any such event or events described in clauses (i) through (iii), above, either individually or together with any other such event or events, would reasonably not be expected to have a Material Adverse Effect.
SECTION 9.2 Investments. No Lincoln Party shall make or have outstanding any Investment, other than:
| (c) | Investments in Cash Equivalents; |
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| (h) | Mergers and acquisitions permitted by Section 9.3; |
SECTION 9.3 Mergers; Acquisitions; Bulk Transfers. No Lincoln Party shall:
| (i) | a Permitted Holdings Merger, |
| (ii) | a Permitted Acquisition, or |
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and (B) as to all other mergers of a Subsidiary into another Subsidiary, Holdings shall advise the Agent in writing of such merger contemporaneously with its effectiveness, or
$100,000,000 at any time of determination, and (iii) any lease, sale or transfer by a Lincoln Party to another Lincoln Party, which, as to leases, sales and transfers by Borrowers to Lincoln Parties that are not Borrowers, do not exceed in the aggregate $100,000,000 on a Consolidated basis in
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any Fiscal Year; provided that the foregoing restrictions shall not apply to the sale of assets for cash to a Person other than an Affiliate, if all of the following conditions are met:
SECTION 9.4 Liens. No Lincoln Party shall (a) acquire any property subject to any inventory consignment, lease, land contract or other title retention contract (this section shall not apply to true leases, consignments, tolling or other possessory agreements in respect of the property of others whereby such Lincoln Party does not have legal or beneficial title to such property and which, pursuant to GAAP, are not required to be capitalized), (b) sell or otherwise transfer any Trade Receivables, whether with or without recourse, or (c) suffer or permit any property now owned or hereafter acquired by it to be or become encumbered by any mortgage, security interest, financing statement or Lien of any kind or nature; provided, that this Section shall not apply to:
| (v) | Permitted Purchase Money Security Interests, |
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mortgages, security interests and liens, on a Consolidated basis, does not at any time exceed an amount equal to five percent (5%) of Consolidated Net Worth at such time,
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SECTION 9.5 Transactions with Affiliates. No Lincoln Party shall enter into any transaction or series of transactions with any Affiliate other than in the ordinary course of business of and pursuant to the reasonable requirements of such Lincoln Party’s business and upon fair and reasonable terms no less favorable to such Lincoln Party than would obtain in a comparable arm’s-length transaction with a person other than an Affiliate.
SECTION 9.6 Change in Nature of Business, Name. No Lincoln Party shall make any material change in the nature of its business as carried on at the date hereof; and no Borrower make any change in its corporate or other entity name, except upon sixty (60) days’ prior written notice to the Agent.
SECTION 9.7 Fixed Charges Coverage. Holdings shall not permit the Fixed Charges Coverage Ratio as of the end of any Fiscal Quarter to be less than 1.75 to 1.00.
SECTION 9.8 Net Leverage Ratio. Holdings shall not permit the Net Leverage Ratio as of the end of any Fiscal Quarter to be greater than 3.50 to 1.00; provided, that, for each of the four (4) Fiscal Quarters immediately following a Qualified Acquisition occurring during the first Fiscal Quarter of such four (4) Fiscal Quarters (such period of increase, the “Leverage Increase Period”), Holdings may elect to increase the ratio set forth above to 4.00 to 1.00; provided, further, that, (i) for at least two (2) Fiscal Quarters immediately following the end of a Leverage Increase Period, the Net Leverage Ratio as of the end of such Fiscal Quarters shall not be greater than 3.50 to 1.00 prior to Holdings electing another Leverage Increase Period pursuant to the immediately preceding proviso, (ii) there shall be no more than two (2) Leverage Increase Periods during the term of this Agreement, (iii) no more than one (1) Leverage Increase Period shall be in effect at any time, and (iv) the Leverage Increase Period shall only apply with respect to the calculation of the Net Leverage Ratio for purposes of determining compliance with the maintenance covenant set forth in this Section 9.8 as of the end of any Fiscal Quarter occurring during such Leverage Increase Period.
SECTION 9.9 Distributions. Holdings shall not declare or pay any dividend or other Distribution in cash, property or obligations (other than in shares of capital stock of Holdings or in options, warrants or other rights to acquire any such capital stock or in other securities convertible into any such capital stock) on any shares of capital stock of Holdings of any class; and Holdings shall not purchase, redeem or otherwise acquire for any consideration any shares of capital stock Holdings of any class or any option, warrant or other right to acquire any such capital stock, unless, as to any of the foregoing, no Event of Default or Incipient Default then exists or would exist after giving effect thereto.
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ARTICLE 10 REPRESENTATIONS AND WARRANTIES
Each Borrower jointly and severally represents and warrants to the Agent, the Letter of Credit Issuer and each of the Lenders as follows:
SECTION 10.1 Existence; Subsidiaries.
SECTION 10.2 Power, Authorization and Consent; Enforceability. The execution, delivery and performance of this Agreement and the Notes by a Borrower, and of all Loan Documents to which any of them is party (a) are within Holdings’ or such other Borrower’s legal power and authority, (b) have been duly authorized by all necessary or proper action of Holdings or such other Borrower, (c) do not require the consent or approval of any Governmental Authority or any other Person which has not been obtained, (d) will not violate (i) any provision of Law applicable to Holdings or such other Borrower, (ii) any provision of Holdings’ or such other Borrower’s, as the case may be, certificate or articles of incorporation, by-laws or regulations, or operating agreement, or (iii) any material agreement or material indenture by which Holdings or such other Borrower or the property of Holdings or such other Borrower is bound, except where such violation specified in this clause (iii) would not have a Material Adverse Effect, and (e) will not result in the creation or imposition of any lien or encumbrance on any property or assets of Holdings or such other Borrower except as provided herein.
This Agreement has been duly executed and delivered by each Borrower and constitutes, and each other Loan Document to which such Borrower is to be a party, when executed and delivered by such Borrower, will constitute, a legal, valid and binding obligation of such Borrower in each case enforceable in accordance with its terms, subject to applicable Debtor Relief Laws and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 10.3 Litigation; Proceedings. Except as set forth on Schedule 10.3 hereto, no action, suit, investigation or proceeding is now pending or, to the knowledge of Holdings, threatened, against Holdings or any Subsidiary, at Law, in equity or otherwise, or with respect to this Agreement or any other Loan Document, before any Governmental Authority, or before any arbitrator or panel of arbitrators which would or might reasonably be expected to have a Material Adverse Effect.
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SECTION 10.5 Financial Condition. The Consolidated audited financial statements of Holdings and its Subsidiaries for the Fiscal Year ending December 31, 2020, previously delivered to the Lenders, are true and complete (including, without limiting the generality of the foregoing, a disclosure of all material contingent liabilities), have been prepared in accordance
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with GAAP applied on a basis consistent with those used during their next preceding Fiscal Year (except as noted therein) and fairly present their then financial condition and operations for the Fiscal Year then ending. Since December 31, 2020, there has been no material adverse change in the financial condition, properties or business of Holdings and its Subsidiaries, taken as a whole.
SECTION 10.6 Solvency. Each Borrower has received consideration which is the reasonable equivalent value of the obligations and liabilities that such Borrower has incurred to the Lenders. No Borrower is insolvent as defined by any applicable state or federal Law, nor will any Borrower be rendered insolvent by the execution and delivery of this Agreement or any Note or Guaranty to the Lenders. No Borrower is engaged or about to engage in any business or transaction for which the assets retained by it shall be an unreasonably small capital, taking into consideration the obligations to the Lenders incurred hereunder. No Borrower intends to, nor does it believe that it will, incur debts beyond its ability to pay them as they mature.
SECTION 10.7 Default. No Event of Default or Incipient Default exists hereunder, nor will any begin to exist immediately after the execution and delivery hereof.
SECTION 10.8 Lawful Operations. The operations of Holdings, the operations of each of the Subsidiaries and all Borrower Property are in full compliance with all requirements imposed by Law or regulation, whether federal, state or local including (without limitation) all Environmental Laws, occupational safety and health Laws and zoning ordinances except where the noncompliance with any such Laws could not be reasonably expected to result in a Material Adverse Effect; provided, however, that this Section 10.8 shall not apply to any noncompliance if and to the extent that the same is being contested in good faith by timely and appropriate proceedings which are effective to stay enforcement thereof and against which appropriate reserves have been established.
SECTION 10.9 Investment Company Act Status. No Borrower is an “investment company” or a company “controlled” by an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940.
SECTION 10.10 Regulation G/Regulation U/Regulation X Compliance. No Borrower is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock”, (as defined by Regulation U of the Board of Governors of the Federal Reserve System of the United States (as amended from time to time)) and all official rulings and interpretations thereunder or thereof and at no time shall more than 25% of the value of the assets of Holdings and its Consolidated Subsidiaries that are subject to any “arrangement” (as such term is used in section 221.2(g) of Regulation U) be represented by “margin stock”. No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or to extend credit to others for the purpose of purchasing “margin stock” or to carry or to extend credit to others for the purpose of carrying stock which will be “margin stock” after giving effect to the Loans, (ii) for any purpose that entails a violation of, or is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System of the United States, including Regulation G, U or X, or (iii) in violation of (a) the United States Foreign Corrupt
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Practices Act of 1977, the UK Bribery Act of 2010, and other similar Anti-Corruption Law in other jurisdictions in which the Lincoln Parties conduct business, (b) Sanctions applicable to any party hereto or the (c) USA Patriot Act.
SECTION 10.11 Title to Properties. Each Lincoln Party has good and marketable title to all assets reflected in such entity’s most recent financial statements referred to in Section 10.5, except for assets disposed of in the ordinary course of business since the date of such financial statements. All such assets are free and clear of any mortgage, security interest or other Lien of any kind, other than any Liens permitted by this Agreement, except for those defects in title (as distinct from Liens) that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
SECTION 10.12 Intellectual Property. Each Lincoln Party owns or has the legal and valid right to use all intellectual property necessary for the operation of its business as presently conducted, free from any Lien not permitted under this Agreement and free of any restrictions material to the operation of its business as presently conducted.
SECTION 10.13 Anti-Corruption Laws and Sanctions; Anti-Money Laundering Laws. The Lincoln Parties and their respective officers and employees and, to the knowledge of the Borrowers, their directors and agents, are in compliance in all material respects with Anti- Corruption Laws, applicable Sanctions and Anti-Money Laundering Laws. Holdings has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance in all material respects by the Lincoln Parties and their respective directors, officers, employees and (to the extent reasonably within their control) agents with Anti-Corruption Laws, applicable Sanctions and Anti-Money Laundering Laws. None of (i) the Lincoln Parties or any of their respective officers or employees, or (ii) to the knowledge of the Borrowers, any director or agent of a Lincoln Party that will act in any capacity in connection with or benefit from the Revolving Credit Facility, is a Sanctioned Person.
SECTION 10.14 Full Disclosure. No information, exhibits or reports furnished by Holdings or any other Borrower to the Agent or any Lender omits to state any fact necessary to make the statements contained therein not materially misleading in light of the circumstances and purposes for which such information was provided. Holdings and each of the other Borrowers has provided all information requested by the Agent or any Lender and all such information is complete and accurate in all material respects.
SECTION 10.15 Affected Financial Institutions. No Borrower is an Affected Financial Institution.
Each of the following shall constitute an event of default (an “Event of Default”) hereunder:
SECTION 11.1 Payments. If the principal of or interest on any Note, any Letter of Credit reimbursement obligation not reimbursed pursuant to Section 5.1, any reimbursement, payment or amount due the Agent or any of the Lenders, any amendment fee or administrative
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fee imposed by any of the Lenders, any Letter of Credit fees or any Facility Fee, the Risk Participation Fee or other fee or amount owing to the Lenders or the Agent under this Agreement or under any other Loan Document shall not be paid in full punctually when due and payable.
SECTION 11.2 Covenants. If any Borrower or Subsidiary shall fail or omit to perform and observe (i) any covenant or agreement or other provision (other than those referred to in Section 11.1 hereof or clause (ii) of this Section 11.2) contained or referred to in this Agreement,
(ii) any covenant or agreement contained in any of Sections 8.4, 8.5, 8.8, 8.9 and 8.10 hereof and such failure or omission is not cured within 30 days following the earlier of a Borrower’s actual knowledge thereof or written notice thereof from the Agent or any Lender or (iii) any covenant or agreement or other provision contained or referred to in any other Loan Document (after giving effect to any required notice, grace period or both in such other Loan Document), in each case that is on such Borrower’s or such Subsidiary’s, as applicable, part to be complied with.
SECTION 11.3 Warranties. If any representation, warranty or statement made or deemed made in or pursuant to this Agreement or any other Loan Document or any other material information furnished by Holdings or any Subsidiary to the Lenders or any thereof or any other holder of any Note shall be false or erroneous in any material respect when furnished or made or deemed furnished or made hereunder.
SECTION 11.4 Cross Default. If Holdings or any Subsidiary, after any applicable notice or grace period or both, (i) defaults in the payment of any principal or interest due and owing upon any other Indebtedness in an aggregate principal amount in excess of an amount equal to the greater of (A) three percent (3%) of Consolidated Net Worth at such time and (B)
$100,000,000 or (ii) defaults in the performance of any other agreement, term or condition contained in any promissory note, agreement or other instrument under which such Indebtedness in an aggregate principal amount in excess of an amount equal to the greater of (A) three percent (3%) of Consolidated Net Worth at such time and (B) $100,000,000, is evidenced, created, constituted, secured or governed, in each case the effect of which default is to cause, or to entitle or permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, any such Indebtedness to become due prior to its stated maturity.
SECTION 11.5 Termination of Plan or Creation of Withdrawal Liability. If (a) any Reportable Event occurs and the Majority Lenders, in their sole determination, deem such Reportable Event to constitute grounds (i) for the termination of any Plan by the Pension Benefit Guaranty Corporation or (ii) for the appointment by the appropriate United States district court of a trustee to administer any Plan and such Reportable Event shall not have been fully corrected or remedied to the full satisfaction of the Majority Lenders within thirty (30) days after giving of written notice of such determination to the Borrowers by any Lender or (b) any Plan shall be terminated within the meaning of Title IV of ERISA (other than a Standard Termination, as that term is defined in Section 4041(b) of ERISA), or (c) a trustee shall be appointed by the appropriate United States district court to administer any Plan, or (d) the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan or to appoint a trustee to administer any Plan or (e) there occurs a withdrawal by Holdings or any Subsidiary from a Multiemployer Plan which results or may result in a withdrawal liability in an amount that is material in relation to the business, operations, affairs, financial condition, assets, or properties of Holdings and its Subsidiaries taken as a whole.
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SECTION 11.6 Validity of Agreements. If this Agreement, the Notes, any Reimbursement Agreement, or any other Loan Document shall for any reason cease to be, or be asserted by Holdings, any other Borrower or any other party intended to be bound thereby (other than a Lender or the Agent) not to be, a legal, valid and binding obligation of any party thereto (other than the Agent, the Letter of Credit Issuer or any Lender) enforceable in accordance with its terms.
SECTION 11.7 Solvency of Borrowers. If any Borrower shall (a) discontinue business (except in connection with a transaction expressly permitted under Section 9.3, above), or (b) generally not pay its debts as such debts become due, or (c) make a general assignment for the benefit of creditors, or (d) apply for or consent to the appointment of a receiver, a custodian, a trustee, an interim trustee or liquidator of all or a substantial part of its assets, or (e) be adjudicated a debtor or have entered against it an order for relief under any Debtor Relief Law, or (f) file a voluntary petition in bankruptcy or file a petition or an answer seeking reorganization or an arrangement with creditors or seeking to take advantage of any other Debtor Relief Law (whether federal or state), or admit by any answer, by default or otherwise) the material allegations of a petition filed against it in any bankruptcy, reorganization, insolvency or other proceeding (whether federal or state) relating to relief of debtors, or (g) suffer or permit to continue unstayed and in effect for thirty (30) consecutive days any judgment, decree or order entered by a Governmental Authority of competent jurisdiction, which assumes custody or control of such Borrower approves a petition seeking reorganization of such Borrower or any other judicial modification of the rights of its creditors, or appoints a receiver, custodian, trustee, interim trustee or liquidator for such Borrower or of all or a substantial part of its assets, or (h) take, or omit to take, any action in order thereby to effect any of the foregoing.
SECTION 11.8 Judgments. If (a) one or more judgments for the payment of money in an aggregate amount in excess of an amount equal to three percent (3%) of Consolidated Net Worth at such time (unless, in the determination of the Majority Lenders, the Borrowers shall have made adequate provision for the prompt payment thereof) shall be rendered against one or more Borrowers, and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or (b) any action shall be legally taken by a judgment creditor to levy upon assets or properties of a Borrower to enforce any judgment.
SECTION 11.9 Change in Control. If a Change in Control shall occur.
ARTICLE 12 REMEDIES UPON DEFAULT
Notwithstanding any contrary provision or inference herein or elsewhere,
SECTION 12.1 Optional Defaults. If any Event of Default referred to in any of Sections 11.1 through and including 11.6, in clause (b) of Section 11.7, or in Section 11.8 or in Section 11.9 shall occur, the Majority Lenders, shall have the right in their discretion (i) by directing the Agent, on behalf of the Lenders, to give written notice to the Borrowers, to:
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thereof, to make any further loan or loans hereunder and to risk participate in Letters of Credit hereunder or otherwise effect any Credit Event, and the obligation of the Letter of Credit Issuer to issue Letters of Credit, immediately shall be terminated, and/or
(ii) to exercise (or cause the Agent to exercise) such other rights and remedies as may be available hereunder, under the other Loan Documents, at law or in equity.
SECTION 12.2 Automatic Defaults. If any Event of Default referred to in Section 11.7 (other than clause (b) thereof) shall occur:
SECTION 12.3 Offsets. If there shall occur or exist any Event of Default or if the maturity of the Notes or any Letter of Credit is accelerated pursuant to Section 12.1 or 12.2, each Lender shall have the right at any time to set off against, and to appropriate and apply toward the payment of, any and all Indebtedness then owing by any Borrowers to that Lender (including, without limitation, any participation purchased or to be purchased pursuant to Section 12.4), whether or not the same shall then have matured, any and all deposit balances and all other indebtedness then held or owing by that Lender to or for the credit or account of any Borrowers, all without notice to or demand upon the Borrowers or any other person, all such notices and demands being hereby expressly waived by the Borrowers.
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SECTION 12.4 Equalization of Advantage. Each Lender agrees with the other Lenders that if it at any time shall obtain any Advantage over the other Lenders in respect of the Obligations to the Lenders (except under Section 3.7, 3.8, 3.9 or 15.4), it will purchase from the other Lenders, for cash and at par, such additional participation in the Obligations to the Lenders as shall be necessary to nullify the Advantage. If any Advantage so resulting in the purchase of an additional participation shall be recovered in whole or in part from the Lender receiving the Advantage, each such purchase shall be rescinded, and the purchase price restored (but without interest unless the Lender receiving the Advantage is required to pay interest on the Advantage to the person recovering the Advantage from such Lender) ratably to the extent of the recovery. Each Lender further agrees with the other Lenders that if it at any time shall receive any payment for or on behalf of any Borrowers on any indebtedness owing by the Borrowers to that Lender by reason of offset of any deposit or other indebtedness, it will apply such payment first to any and all indebtedness owing by such Borrowers to that Lender pursuant to this Agreement (including, without limitation, any participation purchased or to be purchased pursuant to this Section 12.4) until the Obligations have been paid in full. The Borrowers agree that any Lender so purchasing a participation from the other Lenders pursuant to this Section may exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were a direct creditor of any Borrowers in the amount of such participation. If a Defaulting Lender receives any Advantage, such Lender shall turn over such payments to the Agent in an amount that would satisfy the cash collateral requirements set forth in Section 3.6(a).
SECTION 12.5 Application of Remedy Proceeds. All monies received by the Agent and the Lenders from the exercise of remedies hereunder or under the other Loan Documents or under any other documents relating to this Agreement or at Law shall, unless otherwise required by the terms of the other Loan Documents or by applicable Law, be applied as follows:
first, to the payment of all expenses (to the extent not paid by the Borrowers) incurred by the Agent or the Lenders in connection with the exercise of such remedies, including, without limitation, all reasonable costs and expenses of collection, attorneys’ fees, court costs and any foreclosure expenses;
second, to the payment of any fees then accrued and payable to the Lenders, the Letter of Credit Issuer or the Agent under this Agreement in respect of the Loans or the Letters of Credit outstanding;
third, to the payment of interest then accrued on the outstanding Loans;
fourth, to the payment of the principal balance then owing on the outstanding Loans and the stated amounts of the Letters of Credit then outstanding (to be held and applied by the Agent as security for the Risk Participation Exposure in respect thereof);
fifth, to the payment of all other amounts owed by the Borrowers to the Agent or the Lenders under this Agreement or any other Loan Document; and
finally, any remaining surplus after all of the Obligations have been paid in full, to the Borrowers or to whomsoever shall be lawfully entitled thereto.
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SECTION 13.1 The Agent. Each Lender irrevocably appoints KeyBank to be its Agent with full authority to take such actions, and to exercise such powers, on behalf of the Lenders in respect of this Agreement and the other Loan Documents as are therein respectively delegated to the Agent or as are reasonably incidental to those delegated powers. KeyBank in such capacity shall be deemed to be an independent contractor of the Lenders. For the purposes of this Article 13, “Lender” shall include any Lender.
SECTION 13.2 Nature of Appointment. The Agent shall have no fiduciary relationship with any Lender by reason of this Agreement and the other Loan Documents, regardless of whether an Incipient Default or Event of Default has occurred and is continuing. The Agent shall not have any duty or responsibility whatsoever to any Lender except those expressly set forth in this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, each Lender acknowledges that the Agent is acting as such solely as a convenience to the Lenders and not as a manager of the commitments or the Obligations evidenced by the Notes. This Article 13 does not confer any rights upon the Borrowers or anyone else (except the Lenders), whether as a third party beneficiary or otherwise.
SECTION 13.3 KeyBank as a Lender; Other Transactions. KeyBank’s rights as a Lender under this Agreement and the other Loan Documents shall not be affected by its serving as the Agent. KeyBank and its affiliates may generally transact any banking, financial, trust, advisory or other business with Holdings or its Subsidiaries (including, without limitation, the acceptance of deposits, the extension of credit and the acceptance of fiduciary appointments) without notice to the Lenders, without accounting to the Lenders, and without prejudice to KeyBank’s rights as a Lender under this Agreement and the other Loan Documents except as may be expressly required under this Agreement.
SECTION 13.4 Instructions from Lenders. The Agent shall not be required to exercise any discretion or take any action as to matters not expressly provided for by this Agreement and the other Loan Documents (including, without limitation, collection and enforcement actions in respect of any Obligations under the Notes or this Agreement and any collateral therefor) except that the Agent shall take such action (or omit to take such action) other than actions referred to in Section 15.1, as may be reasonably requested of it in writing by the Majority Lenders with instructions and which actions and omissions shall be binding upon all the Lenders; provided, however, that the Agent shall not be required to act (or omit any act) if, in its judgment, any such action or omission might expose the Agent to personal liability or might be contrary to this Agreement, any other Loan Documents or any applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law.
SECTION 13.5 Lenders’ Diligence. Each Lender (a) represents and warrants that it has made its decision to enter into this Agreement and the other Loan Documents and (b) agrees that it will make its own decision as to taking or not taking future actions in respect of this Agreement and the other Loan Documents; in each case without reliance on the Agent or any
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other Lender and on the basis of its independent credit analysis and its independent examination of and inquiry into such documents and other matters as it deems relevant and material.
SECTION 13.6 No Implied Representations. The Agent shall not be liable for any representation, warranty, agreement or obligation of any kind of any other party to this Agreement or anyone else, whether made or implied by Holdings or any other Borrower in this Agreement or any other Loan Document or by a Lender in any notice or other communication or by anyone else or otherwise.
SECTION 13.7 Sub-Agents. The Agent may employ agents and shall not be liable (except as to money or property received by it or its agents) for any negligence or misconduct of any such agent selected by it with reasonable care. The Agent may consult with legal counsel, certified public accountants and other experts of its choosing (including, without limitation, KeyBank’s salaried employees or any otherwise not independent) and shall not be liable for any action or inaction taken or suffered in good faith by it in accordance with the advice of any such counsel, accountants or other experts which shall have been selected by it with reasonable care.
SECTION 13.8 Agent’s Diligence. The Agent shall not be required (a) to keep itself informed as to anyone’s compliance with any provision of this Agreement or any other Loan Document, (b) to make any inquiry into the properties, financial condition or operation of Holdings or any of its Subsidiaries or any other matter relating to this Agreement or any other Loan Document, (c) to report to any Lender any information (other than which this Agreement or any other Loan Document expressly requires to be so reported) that the Agent or any of its affiliates may have or acquire in respect of the properties, business or financial condition of Holdings or any of its Subsidiaries or any other matter relating to this Agreement or any other Loan Document or (d) to inquire into the validity, effectiveness or genuineness of this Agreement or other Loan Document.
SECTION 13.9 Notice of Default. The Agent shall not be deemed to have knowledge of any Incipient Default or Event of Default unless and until it shall have received a written notice describing it and citing the relevant provision of this Agreement or any other Loan Document. The Agent shall give each Lender reasonably prompt notice of any such written notice except to any Lender that shall have given the written notice.
SECTION 13.10 Agent’s Liability. Neither the Agent nor any of its directors, officers, employees, attorneys, and other agents shall be liable for any action or omission on their respective parts except for gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Agent: (i) may treat the payee of any Revolving Credit Note as the holder thereof until the Agent receives a fully executed copy of the assignment agreement required by Section 14.1(b) signed by such payee and in form satisfactory to the Agent and the fee required by Section 14.1(c); (ii) may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice or such counsel, accountants or experts which have been selected by the Agent with reasonable care; (iii) makes no warranty or representation to any Lender and shall not be responsible to any Lender for any statements, warranties or representations made in or in connection with this Agreement or any other Loan Document, including, without limitation, the truth of the statements made in any certificate
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delivered by or on behalf of the Borrowers under Article 6 or any Notice of Borrowing, Rate Continuation/Conversion Request, Reimbursement Agreement or any other similar notice or delivery, the Agent being entitled for the purposes of determining fulfillment of the conditions set forth therein to rely conclusively upon such certificates; (iv) except as expressly set forth in the Loan Documents, shall not have any duty to disclose, or shall be liable for any failure to disclose, any information relating to the Borrowers or any of their Subsidiaries that is communicated to or obtained by the Agent or any of its Affiliates in any capacity; (v) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement, the Notes or any other Loan Document or to inspect the property (including the books and records) of Holdings or any Subsidiaries; (vi) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any collateral covered by any agreement or any other Loan Document and (vii) shall incur no liability under or in respect of this Agreement, the Notes or any other Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, telecopy, cable, telex or email) believed by it in good faith to be genuine and correct and signed or sent by the proper party or parties.
Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Borrowers on account of the failure of or delay in performance or breach by any Lender of any of its obligations hereunder or to any Lender on account of the failure of or delay in performance or breach by any other Lender or the Borrowers of any of their respective obligations hereunder or under any other Loan Document or in connection herewith or therewith.
The Lenders each hereby acknowledge that the Agent shall be under no duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement, the Notes or any other Loan Document unless it shall be requested in writing to do so by the Majority Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 15.1).
SECTION 13.11 Compensation. The Agent shall receive no compensation for its services as agent of the Lenders in respect of this Agreement and the other Loan Document, except as otherwise expressly agreed between the Borrowers and the Agent, but the Borrowers shall reimburse the Agent periodically on its demand for out-of-pocket expenses, if any, reasonably incurred by it as such and as to which Agent has delivered to the Borrowers’ reasonable substantiation.
SECTION 13.12 Agent’s Indemnity. The Lenders shall indemnify the Agent (to the extent the Agent is not reimbursed by the Borrowers) from and against (a) any loss or liability (other than any caused by the Agent’s gross negligence or willful misconduct and other than any loss to the Agent resulting from the Borrowers’ non-payment of administrative fees owed solely to the Agent) incurred by the Agent as such in respect of this Agreement, the Notes, the Letters of Credit, or other Loan Document (as the Agent) and (b) any out-of-pocket expenses incurred in defending itself or otherwise related to this Agreement, the Notes, any Letter of Credit, or other Loan Documents (other than any caused by the Agent’s gross negligence or willful misconduct) including, without limitation, reasonable fees and disbursements of legal counsel of its own selection (including, without limitation, the reasonable interdepartmental charges of its salaried attorneys) in the defense of any claim against it or in the prosecution of its rights and remedies as
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the Agent (other than the loss, liability or costs incurred by the Agent in the defense of any claim against it by the Lenders arising in connection with its actions in its capacity as Agent); provided, however, that each Lender shall be liable for only its Ratable Portion of the whole loss or liability.
SECTION 13.13 Resignation. The Agent (or any successor) may at any time resign as such by giving thirty (30) days’ prior written notice to the Borrowers and to each Lender; and the Majority Lenders may remove the Agent at any time with or without cause by giving written notice to the Agent and the Borrowers. In either case, resignation or removal, the institution then serving as Agent shall also resign as Letter of Credit Issuer in the manner provided in Section 5.3, above, unless Holdings, on behalf of the Borrowers, has waived in writing the requirements of this sentence. In any such case, the Majority Lenders shall appoint a successor to the resigned or removed agent (the “Former Agent”), which shall also serve as successor Letter of Credit Issuer, provided that the Majority Lenders obtain the Borrowers’ prior written consent to the successor (which consent shall not be unreasonably withheld), by giving written notice to the Borrowers, the Former Agent and each Lender not participating in the appointment; provided, however, that, if at the time of the proposed resignation or removal of an Agent, any Borrower is the subject of an action referred to in Section 11.7 or any other Event of Default shall have occurred and be continuing, the Borrowers’ consent shall not be required. In the absence of a timely appointment, the Former Agent shall have the right (but not the duty) to make a temporary appointment of any Lender (but only with that Xxxxxx’s consent) to act as its successor (and as successor Letter of Credit Issuer) pending an appointment pursuant to the immediately preceding sentence. In either case, the successor Agent and Letter of Credit Issuer shall deliver its written acceptance of appointment to the Borrowers, to each Lender and to the Former Agent, whereupon (a) the Former Agent shall execute and deliver such assignments and other writings as the successor Agent may reasonably require to facilitate its being and acting as the Agent and Letter of Credit Issuer, (b) the successor Agent (and successor Letter of Credit Issuer) shall in any event automatically acquire and assume all the rights and duties as those prescribed for the Agent by this Article 13 and, subject to the provisions of Section 5.3, above, for the Letter of Credit Issuer by Article 5, above, and (c) the Former Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents.
SECTION 13.14 Lender Purpose. Each Lender represents and warrants to the Agent, the other Lenders and the Borrowers that such Lender is familiar with the Securities Act of 1933, as amended, and the rules and regulations thereunder and is not entering into this Agreement with any intention to violate such Act or any rule or regulation thereunder. Subject to the provisions of Sections 14.1, 14.2 and 14.3, each Lender shall at all times retain full control over the disposition of its assets subject only to this Agreement and to all applicable Law.
SECTION 13.15 No Reliance on Agent’s Customer Identification Program. Each of the Lenders and the Letter of Credit Issuer acknowledges and agrees that neither such Lender nor the Letter of Credit Issuer, nor any of their Affiliates, participants or assignees, may rely on the Agent to carry out such Xxxxxx’s, Letter of Credit Issuer’s, Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder, including the regulations contained in 31 CFR
103.121 (as hereafter amended or replaced, the “CIP Regulations”), or any other Anti-Corruption Law, Sanctions Law or Anti-Money Laundering Law, including any programs involving any of
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the following items relating to or in connection with any of the Borrowers, their Affiliates or their agents, this Agreement, the other Loan Documents or the transactions hereunder or contemplated hereby: (i) any identity verification procedures, (ii) any record keeping, (iii) comparisons with government lists, (iv) customer notices or (5) other procedures required under the CIP Regulations or such other laws.
SECTION 13.16 Erroneous Payments.
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portion thereof) acquired pursuant to an Erroneous Payment Deficiency Assignment, and irrespective of whether the Agent may be equitably subrogated, the Agent shall be contractually subrogated to all the rights and interests of the applicable Lender or Letter of Credit Issuer under the Loan Documents with respect to each Erroneous Payment Return Deficiency (the “Erroneous Payment Subrogation Rights”).
ARTICLE 14 ASSIGNMENTS AND PARTICIPATIONS
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including, without limitation, an Administrative Questionnaire as a supplement thereto in the form of Exhibit G hereto. Upon execution and delivery by the assignor and the assignee to the Borrowers and the Agent of an instrument in writing pursuant to which such assignee agrees to become a “Lender” hereunder (if not already a Lender) having the share of the Total Commitment Amount, Loans and Letters of Credit specified in such instrument, and upon consent thereto by the Agent, the Letter of Credit Issuer and Holdings (to the extent, if any, required), the assignee shall have, to the extent of such assignment (unless otherwise provided in such assignment with the consent of the Agent and the Letter of Credit Issuer), the obligations, rights and benefits of a Lender hereunder holding the share of the Total Commitment Amount, Loans and Letters of Credit (or portions thereof) assigned to it (in addition to the share of the Total Commitment Amount, Loans and Letters of Credit, if any, theretofore held by such assignee); and the assigning Lender shall, to the extent of such assignment, be released from the share of the Total Commitment Amount, Loans and Letters of Credit and the obligations hereunder so assigned.
| (f) | Defaulting Lenders. Notwithstanding anything to the contrary in the foregoing, |
(i) except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender; and (ii) no assignment hereunder shall be made to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this sentence. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set
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forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Holdings and the Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (i) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, each Letter of Credit Issuer, and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full proportionate share of all Loans and participations in Letters of Credit in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
SECTION 14.2 Participations. A Lender may sell or agree to sell to one or more other Persons (each a “Participant”) a participation in all or any part of any Revolving Credit Loans held by it, or in its Commitment or its participation in the Letters of Credit. Except as otherwise provided in the last sentence of this Section 14.2, no Participant shall have any rights or benefits under this Agreement or any Note or any other Loan Documents (the Participant’s rights against such Lender in respect of such participation to be those set forth in the agreements executed by such Xxxxxx in favor of the Participant). All amounts payable by the Borrowers to any Lender under this Agreement, and in respect of its Commitment, shall be determined as if such Lender had not sold or agreed to sell any participations in such Revolving Credit Loans and share of Commitment, and as if such Lender were funding each of such Revolving Credit Loans and its share of such Commitment in the same way that it is funding the portion of such Revolving Credit Loans and its Commitment in which no participations have been sold. In no event shall a Lender that sells a participation agree with the Participant (other than an Affiliate of such Lender) to take or refrain from taking any action hereunder or under any other Loan Document, except that such Lender may agree with the Participant that it will not, without the consent of the Participant, agree to any modification, supplement or waiver hereof or of any of the Loan Documents to the extent that the same, under Section 15.1 hereof, requires the consent of each Lender. The Borrowers agree that each Participant shall be entitled to the benefits of Sections
3.7 through 3.9, inclusive, and Section 12.3 (but, (i) only to the extent that the selling Lender is entitled to such benefits and (ii) as to any sums realized thereunder, subject to Section 12.4) with respect to its participating interest.
SECTION 14.3 Permitted Pledges. In addition to the assignments and participations permitted under the foregoing provisions of this Article 13, any Lender may assign and pledge all or any portion of its Revolving Credit Loans and its Note to any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank. No such assignment shall release the assigning Lender from its obligations hereunder.
SECTION 14.4 Furnishing of Borrower Information. A Lender may furnish any information concerning Holdings and its Subsidiaries in the possession of such Lender from time to time to assignees and participants (including, with the prior written consent of Holdings,
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which consent shall not be unreasonably withheld or delayed, prospective assignees and participants, provided that no such consent shall be required upon and during the continuance of an Event of Default).
SECTION 15.1 Amendments, Consents. No amendment, modification, termination, or waiver of any provision of this Agreement or of the Notes, nor consent to any variance therefrom, shall be effective unless the same shall be in writing and signed by the Majority Lenders (and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given); provided, however, that the consent of each Lender affected directly thereby shall be required with respect to any amendment, modification, termination, or waiver which would effect:
| (iv) | any change in any percentage voting requirement in this Agreement, or |
By way of clarification and not limitation, all of the Lenders shall be deemed to be affected directly by the matters described in each of clauses (iii), (iv), (vii), (viii) and (ix), above.
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Notice of amendments or consents ratified by the Lenders hereunder shall immediately be forwarded by the Borrowers to all Lenders. Each Lender or other holder of a Note shall be bound by any amendment, waiver or consent obtained as authorized by this section, regardless of its failure to agree thereto.
Notwithstanding the foregoing, (i) if the Majority Lenders enter into or consent to any waiver, amendment or modification pursuant to this Section 15.1, no consent of any other Lender will be required if, when such waiver, amendment or modification becomes effective, (A) the Commitment of each Lender not consenting thereto terminates and (B) all amounts owing to it or accrued for its account hereunder are paid in full; (ii) no such waiver, amendment or modification shall amend, modify or otherwise affect the rights or duties of any of the Agent or the Letter of Credit Issuer without its prior written consent; and (iii) if any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of such Lender and that has been approved by the Majority Lenders, the Borrowers may replace such non-consenting Lender in accordance with Section
15.15; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrowers to be made pursuant to this paragraph).
SECTION 15.2 No Waiver; Cumulative Remedies. No omission or course of dealing on the part of Agent, any Lender or the holder of any Note in exercising any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies herein provided are cumulative and in addition to any other rights, powers or privileges held by operation of Law, by contract or otherwise.
SECTION 15.3 Notices. All notices, requests, demands and other communications provided for hereunder to a party hereto shall be in writing and shall be mailed or delivered to such party (including, without limitation, delivery by facsimile transmission), addressed to such party at its address specified on Schedule 1 hereto or at such other address as such party may from time to time specify in writing to the other parties hereto. All notices, statements, requests, demands and other communications provided for hereunder shall be deemed to be given or made when delivered or forty-eight (48) hours after being deposited in the mails with postage prepaid by registered or certified mail or delivered to a telegraph company, addressed as aforesaid, except that notices from the Borrowers to Agent or the Lenders pursuant to any of the provisions hereof, including, without limitation, Articles 3, 4, 5 and 6 hereof, shall not be effective until received by Agent or the Lenders.
SECTION 15.4 Costs and Expenses. (a) The Borrowers agree to pay on demand all reasonable costs and expenses of the Agent in connection with the preparation, execution, delivery, filing for record, modification, administration and amendment of this Agreement (including, without limitation, any amendment), the Notes, the Letters of Credit, and the other Loan Documents and the other documents to be delivered hereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Agent with respect thereto and with respect to advising the Agent as to its rights and responsibilities under this Agreement. Without limiting the generality of the foregoing, such costs and expenses shall include: (i) reasonable attorneys’ and paralegals’ costs, expenses and disbursements of counsel to
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the Agent; (ii) extraordinary expenses of Agent in connection with the administration of this Agreement, the Notes, Letters of Credit, any other Loan Document and the other instruments and documents to be delivered hereunder; (iii) the reasonable fees and out-of-pocket expenses of special counsel for the Agent or the Agent for the benefit of the Lenders, with respect thereto and of local counsel, if any, who may be retained by said special counsel with respect thereto; (iv) costs and expenses of the Agent (including reasonable attorneys and paralegal costs, expenses and disbursements) for any amendment, supplement, waiver, consent, or subsequent closing in connection with this Agreement, the Notes, any Letters of Credit or any other Loan Document and the transactions contemplated thereby; (v) sums paid or incurred by the Agent to pay any amount or take any action required of the Borrowers under this Agreement, the Notes or any Loan Document that the Borrowers fail to pay or take; (vi) the cost of any appraisal, survey, environmental audit or the retention of any other professional service or consultant commenced after the occurrence and continuation of an Event of Default and deemed reasonably necessary by the Agent; (vii) costs of inspections and periodic review of the records of Holdings or any of its Subsidiaries, including, without limitation, travel, lodging, and meals for inspections of Holdings’ and its Subsidiaries’ operations by the Agent at any time after the occurrence and during the continuation of an Event of Default; (viii) as specified in the Fee Letter, costs and expenses of forwarding loan proceeds, fees, interest and other payments to the Lenders; and (ix) costs and expenses (including, without limitation, attorneys’ fees) paid or incurred to obtain payment of the Obligations (including the Obligations arising under this Section 15.4), enforce the provisions of the Credit Agreement, the Notes, or any other Loan Document, or to defend any claims made or threatened against the Agent arising out of the transactions contemplated hereby (including without limitation, preparations for and consultations concerning any such matters). The Borrowers further agree to pay on demand all costs and expenses of each Lender, if any (including reasonable counsel fees and expenses), in connection with the restructuring or the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the Notes, any other Loan Document and the other documents to be delivered hereunder, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 15.4. The foregoing shall not be construed to limit any other provisions of this Agreement, the Notes, or any other Loan Documents regarding costs and expenses to be paid by the Borrowers. All of the foregoing costs and expenses may be charged, in the Agent’s sole discretion, to the Borrowers’ loan accounts as Revolving Credit Loans (notwithstanding existence of any Incipient Default or Event of Default or the failure of the conditions of Article 7 to have been satisfied).
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demand do not comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly owned or operated by any Borrower or any Subsidiary, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that (I) such indemnity shall not be available to any Indemnitee to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from such Indemnitee’s gross negligence or willful misconduct; (II) such indemnity shall not be available to any Indemnitee for losses, claims, damages, liabilities or related expenses arising out of a proceeding in which such Indemnitee and any Borrower are adverse parties to the extent that any Borrower prevails on the merits, as determined by a court of competent jurisdiction (it being understood that nothing in this Agreement shall preclude a claim or suit by such Borrower against any Indemnitee for such Indemnitee’s failure to perform any of its obligations to such Borrower under the Loan Documents); (III) the Borrowers shall not, in connection with any such proceeding or related proceedings in the same jurisdiction and in the absence of conflicts of interest or differing interests among the Indemnitees, be liable for the fees and expenses of more than one law firm at any one time for the Indemnitees (which law firm (or, if applicable, law firms) shall be selected
(A) by mutual agreement of the Majority Lenders (or, if applicable, such respective interested Indemnitees) and the Borrowers or (B) if no such agreement has been reached following the Lenders’ (or, if applicable, such interested Indemnitees) good faith consultation with the Borrowers with respect thereto, by the Majority Lenders (or, if applicable, such respective interested Indemnitees) in their sole discretion); (IV) each Indemnitee shall give such Borrower
(A) prompt notice of any such action brought against such Indemnitee in connection with a claim for which it is entitled to indemnity under this Section and (B) an opportunity to consult from time to time with such Indemnitee regarding defensive measures and potential settlement; and
(V) the Borrowers shall not be obligated to pay the amount of any settlement entered into without their written consent (which consent shall not be unreasonably withheld).
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SECTION 15.5 Obligations Several. The obligations of the Lenders hereunder are several and not joint. Nothing contained in this Agreement and no action taken by Agent or the Lenders pursuant hereto shall be deemed to constitute the Lenders to be a partnership, association, joint venture or other entity. No default by any Lender hereunder shall excuse the other Lenders from any obligation under this Agreement; but no Lender shall have or acquire any additional obligation of any kind by reason of such default.
SECTION 15.6 Execution in Counterparts. (a) This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.
(b) Delivery of an executed counterpart of a signature page of (i) this Agreement, (ii) any other Loan Document and/or (iii) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 15.3), certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (x) to the extent the Agent has agreed to accept any Electronic Signature, the Agent and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrowers or the Guarantors, as applicable, without further verification thereof and without any obligation to review the appearance or form of any such Electronic signature and (y) upon the request of the Agent or any Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the Borrowers and the Guarantors hereby (A) agree that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Agent, the Lenders, and the Borrowers and the Guarantors, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (B) the Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and
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shall have the same legal effect, validity and enforceability as a paper record), (C) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (D) waives any claim against any Affiliate of Agent or any Lender for any liabilities arising solely from the Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any liabilities arising as a result of the failure of the Borrowers and/or any Guarantor to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
SECTION 15.7 Binding Effect; Assignment. This Agreement shall become effective when it shall have been executed by the Borrowers, Agent and by each Lender and thereafter shall be binding upon and inure to the benefit of the Borrowers and each of the Lenders and their respective successors and permitted assigns, except that the Borrowers shall not have the right to assign their rights hereunder or any interest herein without the prior written consent of all of the Lenders. No person, other than the Lenders, shall have or acquire any obligation to grant the Borrowers any Loans hereunder. Any Lender may at any time sell, assign, transfer, grant a participation pursuant to Article 14 hereof.
SECTION 15.8 Governing Law. This Agreement, each of the Notes and any other Loan Documents shall be governed by and construed in accordance with the Laws of the State of Ohio and the respective rights and obligations of the Borrowers and the Lenders shall be governed by Ohio Law.
SECTION 15.9 Severability of Provisions; Captions; Survival. Any provision of this Agreement which 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 or affecting the validity or enforceability of such provision in any other jurisdiction. The several captions to sections and subsections herein are inserted for convenience only and shall be ignored in interpreting the provisions of this Agreement. Each party’s obligations under Sections 3.7(a), (b) and (d), Section 3.8, Section 3.9, Section 3.10 and Section 15.4 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
SECTION 15.10 Entire Agreement. This Agreement and the other Loan Documents referred to in or otherwise contemplated by this Agreement set forth the entire agreement of the parties as to the transactions contemplated by this Agreement.
SECTION 15.11 Confidentiality. The Agent and the Lenders hereby acknowledge that Holdings and its Subsidiaries have financial and other data and information the confidentiality of which is important to their business. The Agent and the Lenders agree to use all reasonable efforts to keep confidential any such confidential information conveyed to them and appropriately designated in writing by Holdings on behalf of the Borrowers as being confidential information, except that this Section shall not be binding on the Agent or the Lenders after the
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expiration of three (3) years after the termination of this Agreement and shall not preclude the Agent and the Lenders from furnishing any such confidential information: (i) subject to Holdings’ receipt of prior notice from the Agent or a Lender, if permitted under applicable law and such legal proceedings, to the extent which may be required by subpoena or similar order of any court of competent jurisdiction (which notice, if so permitted under applicable law and such legal proceedings, shall advise Holdings of the information required by such subpoena or order, the party to whom such subpoena or order requires such information to be delivered and the court of other tribunal that issued such subpoena or order), (ii) to the extent such information is required to be disclosed to any authority over the Agent or a Lender or its securities, (iii) to any other party to this Agreement, (iv) to any Affiliate of the Agent or a Lender (provided that such Affiliate is informed of the confidential nature of the information and instructed to keep it confidential as herein provided, and provided, further, that each of the Agent or such Lender, as applicable, shall remain liable for any breach of the confidentiality obligations hereunder by its Affiliate), (v) to any actual or prospective successor Agent and to any actual or prospective transferee, participant or subparticipant of all or part of a Lender’s rights arising out of or in connection with this Agreement or any thereof so long as such prospective transferee, participant or subparticipant to whom disclosure is made agrees in writing to Holdings to be bound by the provisions of this Section 15.11, (vi) to anyone if it shall have been already publicly disclosed (other than by the Agent or a Lender in contravention of this Section 15.11), (vii) to the extent reasonably required in connection with the exercise of any right or remedy under this Agreement or any other Loan Document, (viii) to the Agent’s or a Xxxxxx’s legal counsel, auditors, professional advisors and consultants, and accountants and (ix) in connection with any legal proceedings instituted by or against the Agent or a Lender in its capacity as the Agent or a Lender under this Agreement.
SECTION 15.12 JURY TRIAL WAIVER. EACH BORROWER, EACH LENDER, THE AGENT AND THE LETTER OF CREDIT ISSUER HEREBY IRREVOCABLY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT AND THE RELATIONSHIPS THEREBY ESTABLISHED. The
scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including, without limitation, contract claims, tort claims, breach of duty claims, and all other statutory and common law claims. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS AGREEMENT. In the event
of litigation, this provision may be filed as a written consent to a trial by the court.
SECTION 15.13 Jurisdiction; Venue; Inconvenient Forum.
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OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH OHIO STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT IN THE COURTS OF ANY JURISDICTION.
SECTION 15.14 USA Patriot Act.
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applicable “know your customer” and Anti-Money Laundering Laws, including the USA Patriot Act.
SECTION 15.15 Replacement of Lenders. If any Lender is a Defaulting Lender, or if any Lender requests compensation under Section 3.7, 3.8 or 3.9, or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.7, 3.8 or 3.9, or if any circumstance exists under Section 15.1 that gives the Borrowers the right to replace a Lender as a party hereto, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 14.1, other than the consent of the Lender being replaced), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
| (d) | such assignment does not conflict with applicable Laws. |
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
SECTION 15.16 Acknowledgement and Consent to Bail-In of Affected 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 Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
| (b) | the effects of any Bail-in Action on any such liability, including, if applicable: |
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| (i) | a reduction in full or in part or cancellation of any such liability; |
SECTION 15.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding this Agreement provided by the Lenders are arm’s-length commercial transactions between such Borrower and its Affiliates, on the one hand, and the Lenders and their Affiliates, on the other hand, (B) such Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) such Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Lenders and their Affiliates is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for such Borrower or any of its Affiliates, or any other Person and (B) no Lender or any of its Affiliates has any obligation to such Borrower or any of its Affiliates with respect to the transactions contemplated hereby except, in the case of a Lender, those obligations expressly set forth herein and in the other Loan Documents; and (iii) each of the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of such Borrower and its Affiliates, and no Lender or any of its Affiliates has any obligation to disclose any of such interests to such Borrower or its Affiliates. To the fullest extent permitted by law, each Borrower hereby waives and releases any claims that it may have against each of the Lenders and their Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
SECTION 15.18 Acknowledgement Regarding any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any hedge agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of Ohio and/or of the United States or any other state of the United States):
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| (b) | As used in this Section 15.18, the following terms have the following meanings: “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined |
under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
SECTION 16.1 Joint and Several. The Borrowers agree and acknowledge that their liability to pay all Loans and to perform all other Obligations under this Agreement and each other Loan Document to which they are a party is and shall be joint and several. No Borrower shall have any right of subrogation, reimbursement or similar right in respect of its payment of any sum or its performance of any other obligation hereunder unless and until all Obligations have been paid in full and the Lenders, the Letter of Credit Issuer and the Agent have no further obligation hereunder. In addition, each Borrower confirms that upon each Credit Event, it will have received adequate consideration and reasonably equivalent value for the Indebtedness
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incurred and other agreements made in the Loan Documents. No Borrower could reasonably expect to obtain financing separately on terms as favorable as those provided for herein.
SECTION 16.2 Obligations Absolute. The Obligations of each Borrower hereunder shall be valid and enforceable and, except as expressly provided herein, shall not be subject to limitation, impairment or discharge for any reason (other than the payment in full of the Obligations), including, without limitation, the occurrence of any failure to assert or enforce or agreement not to assert or enforce any claim or demand of any right power or remedy with respect to the Obligations or any agreement relating thereto, or with respect to any guaranty thereof or security therefor or any other act or thing or omission which may or might in any manner or to any extent vary the risk of such Borrower as an obligor in respect of the Obligations; and each Borrower hereby waives (i) any defense based upon any statute or rule of law or equity to the effect that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal, and (ii) to the fullest extent permitted by law, any defenses or benefits which may be derived from or afforded by law or equity which limit the liability of or exonerate guarantors or sureties, or which may conflict with terms of this Agreement or the other Loan Documents.
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contingent and fixed liabilities of such Borrower that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of the other Borrowers and any other obligor, result in the Obligations not constituting a fraudulent transfer or conveyance.
[No additional provisions are on this page; this page is followed by signature pages]
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the date first above written.
BORROWERS
LINCOLN ELECTRIC HOLDINGS, INC.
By Xxxxxxxxxxx X. Xxxxx, Chairman, President and Chief Executive Officer
And Xxxxxxx Xxxxx, Executive Vice President, Chief Financial Officer and Treasurer
THE LINCOLN ELECTRIC COMPANY
By Xxxxxxxxxxx X. Xxxxx, Chief Executive Officer
And Xxxxxxx Xxxxx, Treasurer
LINCOLN ELECTRIC INTERNATIONAL HOLDING COMPANY
By Xxxxxxx Xxxxx, Treasurer
X.X. XXXXXX CO., INC.
By
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Xxx Xxxxxxxx, Treasurer
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LINCOLN GLOBAL, INC.
By Xxxxxx XxXxxxxx, Treasurer
LINCOLN ELECTRIC AUTOMATION, INC.
By Xxxxxxx X. Xxxxxxx, Treasurer
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AGENT
KEYBANK NATIONAL ASSOCIATION,
AS AGENT
By Xxxxx Xxx, Senior Vice President
LETTER OF CREDIT ISSUER
KEYBANK NATIONAL ASSOCIATION,
AS LETTER OF CREDIT ISSUER
By Xxxxx Xxx, Senior Vice President
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LENDERS
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH
By
,
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BANK OF AMERICA, N.A.
By
,
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BNP PARIBAS
By
,
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0000000000\6\AMERICAS
CANADIAN IMPERIAL BANK OF COMMERCE
By
,
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0000000000\6\AMERICAS
HSBC BANK USA, NATIONAL ASSOCIATION
By
,
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JPMORGAN CHASE BANK, N.A.
By
,
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KEYBANK NATIONAL ASSOCIATION
By Xxxxx Xxx, Senior Vice President
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MUFG BANK, LTD.
By
,
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PNC BANK, NATIONAL ASSOCIATION
By
,
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XXXXX FARGO BANK, N.A.
By
,
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ANNEX A
To Second Amended and Restated Credit Agreement dated April 23, 2021 among Lincoln Electric Holdings, Inc., et al.
Lender | Amount of Commitment |
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch | $50,000,000 |
Bank of America, N.A. | $50,000,000 |
BNP Paribas | $50,000,000 |
Canadian Imperial Bank of Commerce | $50,000,000 |
HSBC Bank USA, National Association | $50,000,000 |
JPMorgan Chase Bank, N.A. | $50,000,000 |
KeyBank National Association | $50,000,000 |
MUFG Bank, Ltd. | $50,000,000 |
PNC Bank, National Association | $50,000,000 |
Xxxxx Fargo Bank, N.A. | $50,000,000 |
TOTAL | $500,000,000 |
-Annex A -
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