consenting online via “LendAmend” or such Lender’s delivery to the Administrative Agent of its properly executed signature page hereto, in each case no later than 5:00 p.m. New York time on May 23, 2018 (as such delivery or consent via “LendAmend”...
Exhibit 10.1 Execution Copy AMENDMENT NO. 2 TO TERM LOAN CREDIT AGREEMENT THIS AMENDMENT NO. 2 TO TERM LOAN CREDIT AGREEMENT (this “Amendment”) is being executed and delivered as of May 29, 2018 by and among Global Brass and Copper, Inc. (the “Borrower”), Global Brass and Copper Holdings, Inc. (“Holdings”), the other Loan Parties party hereto, JPMorgan Chase Bank, N.A. (“JPMCB”), as administrative agent (in such capacity, the “Administrative Agent”) under the below-defined Credit Agreement, and the Lenders party to the Credit Agreement. All capitalized terms used herein without definition shall have the same meanings as set forth in the below-defined Credit Agreement. W I T N E S S E T H: WHEREAS, the Borrower, Holdings, certain of the Loan Parties, the Lenders, and the Administrative Agent are party to that certain Term Loan Credit Agreement, dated as of July 18, 2016 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”, and as amended hereby, the “Credit Agreement”); WHEREAS, the Loan Parties have requested that the Lenders and the Administrative Agent amend the Existing Credit Agreement in certain respects; and WHEREAS, the Lenders and the Administrative Agent have agreed to amend the Existing Credit Agreement on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing premises, the terms and conditions stated herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties hereby agree as follows: 1. Amendment. Subject to the satisfaction of the conditions precedent set forth in Section 2 below, the Existing Credit Agreement is hereby amended to read as set forth in Exhibit A hereto. 2. Condition of Effectiveness. The effectiveness of this Amendment is subject to the following conditions precedent: (a) the Administrative Agent shall have received counterparts of this Amendment duly executed by the Loan Parties and the Lenders required to execute and deliver this Amendment in order to give effect hereto; (b) the Administrative Agent shall have received those agreements, documents, instruments and other deliverables appearing in Exhibit B hereto; (c) the Administrative Agent shall have received for the benefit of each Lender approving this Amendment No. 2 all fees due and payable to such Lender described in that certain Amendment No. 2 Fee Letter (Term Loan B Facility), dated as of May 29, 2018, between the Borrower and JPMCB, with such approval being evidenced by such Lender by
consenting online via “LendAmend” or such Lender’s delivery to the Administrative Agent of its properly executed signature page hereto, in each case no later than 5:00 p.m. New York time on May 23, 2018 (as such delivery or consent via “LendAmend” shall be determined by the Administrative Agent in its sole discretion); and (d) all of JPMCB’s and the Administrative Agent’s reasonable and documented accrued costs, fees and out-of-pocket expenses through the date hereof, in each case owing by any Loan Party to the Administrative Agent or JPMCB, shall have been fully paid. 3. Representation and Warranties. Each Loan Party hereby represents and warrants that (i) this Amendment and the Existing Credit Agreement as amended hereby constitute its legal, valid and binding obligation and are enforceable against it in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; (ii) all of the representations and warranties of such Loan Party set forth in the Credit Agreement are true and correct in all material respects on and as of the date hereof (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects) and (iii) no Default has occurred and is continuing on and as of the date hereof. 4. Effect on the Credit Agreement and Other Loan Documents; Reaffirmation. (a) Upon the effectiveness of this Amendment, on and after the date hereof, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to the Credit Agreement, as amended and modified hereby. (b) Except as expressly set forth herein, (i) the execution, delivery and effectiveness of this Amendment shall neither operate as a waiver of any rights, power or remedy of the Administrative Agent or the Lenders under the Credit Agreement or any other documents executed in connection with the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement nor any other document executed in connection therewith and (ii) the Credit Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith and are hereby ratified and confirmed. (c) Each Loan Party affirms its duties and obligations under each Loan Document to which it is a party (including, without limitation, the Guaranty set forth in Article X of the Credit Agreement). 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. 2
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ABS Loans 2007 Limited, a subsidiary of Xxxxxxx Xxxxx Institutional Funds II PLC (Print name of der above) B Y ~~ Name: Title: ~C-~f/ ~~~^~ Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxxx Sachs Trust on behalf ofthe Xxxxxxx Xxxxx High Yield Floating Rate Fund Bv: Xxxxxxx Sachs Asset Manaeement. L.P. as investment advisor and not as nrincinal (Print name of Lender above) By Name: '~ Title: J ~ -~ ~~ ~''~"``'~ ~~naS~nS ~~/~G~i~ Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxxx Xxxxx Lux Inveshnent Funds for the benefit of Xxxxxxx Sachs High Yield Floating Rate Portfolio (Lux) by Xxxxxxx Xxxxx Asset Management, L.P. solely as its inveshnent advisor and not as principal (Print name of~I,.,ender above) Name:" l Title: eTe~ G~" t~ ~r~~ ~~ Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ACE American Insurance Company BY: X. Xxxx Price Associates, Inc. as investment advisor By: Name: Xxxxxxx Xxxxxx Title: Bank Loan Trader By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) AGF Floating Rate Income Fund By: Xxxxx Xxxxx Management as Portfolio Manager By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) AMMC CLO 15, LIMITED BY: American Money Management Corp., as Collateral Manager By: Name: Xxxxx X. Xxxxx Title: Senior Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) AMMC CLO 18, LIMITED By: American Money Management Corp., as Collateral Manager By: Name: Xxxxx Xxxxx Title: Senior Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) AMMC CLO 22, LIMITED By: American Money Management Corp., as Collateral Manager By: Name: Xxxxx Xxxxx Title: Senior Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Apex Credit CLO 2015-II Ltd. By: Apex Credit Partners, its Asset Manager By: Name: Xxxxxx Xxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Apex Credit CLO 2016 Ltd. By: Apex Credit Partners, its Asset Manager By: Name: Xxxxxx Xxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Apex Credit CLO 2017-II Ltd. By: Apex Credit Partners LLC By: Name: Xxxxxx Xxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Ascension Alpha Fund, LLC By: Amundi Pioneer Institutional Asset Management, Inc. By: Name: Xxxxxxxx X. Xxxxxx Title: Secretary and Associate General Counsel By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Ascension Health Master Pension Trust By: Amundi Pioneer Institutional Asset Management, Inc. By: Name: Xxxxxxxx X. Xxxxxx Title: Secretary and Associate General Counsel By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Assurant CLO I, Ltd. By: Assurant Investment Management LLC as Service Provider to Assurant CLO Management, LLC as its Collateral Manager By: Name: Xxxxxxx Xxxxxx Title: Senior Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ATLAS SENIOR LOAN FUND III, Ltd. By: Crescent Capital Group LP, its adviser By: Name: Xxxxx XxXxxx Title: Vice President By: Name: Xxxxx Xxxxxx Title: Managing Director Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ATLAS SENIOR LOAN FUND IX, LTD. By: Crescent Capital Group LP, its adviser By: Name: Xxxxx XxXxxx Title: Vice President By: Name: Xxxxx Xxxxxx Title: Managing Director Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ATLAS SENIOR LOAN FUND V, LTD. By: Crescent Capital Group LP, its adviser By: Name: Xxxxx XxXxxx Title: Vice President By: Name: Xxxxx Xxxxxx Title: Managing Director Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ATLAS SENIOR LOAN FUND VII, LTD. By: Crescent Capital Group LP, its adviser By: Name: Xxxxx XxXxxx Title: Vice President By: Name: Xxxxx Xxxxxx Title: Managing Director Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ATLAS SENIOR LOAN FUND X, LTD. By: Crescent Capital Group LP, its adviser By: Name: Xxxxx XxXxxx Title: Vice President By: Name: Xxxxx Xxxxxx Title: Managing Director Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Atlas Senior Secured Loan Fund VIII, Ltd. By: Crescent Capital Group LP, its adviser By: Name: Xxxxx XxXxxx Title: Vice President By: Name: Xxxxx Xxxxxx Title: Managing Director Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ATRIUM IX By: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Atrium X BY: By: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ATRIUM XI BY: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Atrium XII By: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) BA/CSCREDIT 1 LLC By: Credit Suisse Asset Management, LLC, as investment manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Baloise Senior Secured Loan Fund III By: Octagon Credit Investors, LLC as Sub Investment Manager By: Name: Xxxxxxxx X. Xxxxxx Title: Managing Director of Portfolio Administration By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Black Diamond CLO 2014-1 Ltd. By: Black Diamond CLO 2014-1 Adviser, L.L.C. As its Collateral Manager By: Name: Xxxxxxx X. Xxxxxxx Title: Managing Principal By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Black Diamond CLO 2016-1 Ltd. By: Black Diamond CLO 2016-1 Adviser, L.L.C. As its Collateral Manager By: Name: Xxxxxxx X. Xxxxxxx Title: Managing Principal By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
Re: Global Brass and Copper, Inc. Amendment No. 2 to the Term Loan Credit Agreement We have posted for your review (i) draft of Amendment No. 2 to the Global Brass and Copper, Inc. Term Loan Credit Agreement (“Amendment No. 2”) and (ii) a conformed copy of the Term Loan Credit Agreement which will be attached as Exhibit A to the Amendment, along with a redline against the executed Term Loan Credit Agreement (as amended by Amendment No. 1 to the Term Loan Credit Agreement). We request that all Lender comments and executed signature pages to the Amendment be delivered no later than 5:00 PM New York City time on May 23, 2018. Please note that following the lender presentation, an additional change was made to the Amendment No. 2 regarding the ability of Global Brass and Copper Holdings, Inc. (“Holdings”) to make quarterly dividend payments pursuant to Section 6.08(a)(vi) of the Term Loan Credit Agreement. The permitted quarterly dividend allowed to be made by Holdings from Restricted Payments has increased from $0.15 per issued share of common stock of Holdings to $0.21 per issued share of common stock of Holdings (with the covenant now being the greater of $10 million and $0.21 per share). Please indicate your consent to the amendment by consenting online via LendAmend or by submitting an executed signature page, a form of which is attached hereto as Exhibit A to XxxxxxXxxxxXxx00@Xxxxxxxxx.xxx no later than 5:00 PM New York City time on May 23, 2018. For questions about signature pages or execution matters please contact LendAmend at x0 (000) 000-0000. Please address all legal comments to our counsel, Sidley Austin LLP, to the attention of Xxxx Xxxxxxx (phone: 000-000-0000 or xxxxxxxx@xxxxxx.xxx) and Xxx Xxxxx (phone: 312-853- 2031 or xxxxxx@xxxxxx.xxx). Please address all credit and business comments to Xxxx Xxxxxxx (phone: 000-000-0000 or xxxx.x.xxxxxxx@xxxxxxxx.xxx) or Rob Pim (phone: (000) 000-0000 or xxxxxx.x.xxx@xxxxxxxx.xxx). Thank you for your assistance in this matter.
Exhibit A Lender Signature Page (attached)
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) _BMO Floating Rate Income Fund___ (Print name of Lender above) By__________________________________ Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Brighthouse Funds Trust I - Brighthouse/Xxxxx Xxxxx Floating Rate Portfolio BY: Xxxxx Xxxxx Management as Investment Sub- Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) CALIFORNIA STATE TEACHERS' RETIREMENT SYSTEM By: Credit Suisse Asset Management, LLC, as investment manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Canyon Capital CLO 2014-1, Ltd. BY: Canyon Capital Advisors LLC, its Collateral Manager By: Name: Xxxxxxxx X. Xxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Canyon Capital CLO 2014-2, Ltd. BY: Canyon Capital Advisors LLC, its Collateral Manager By: Name: Xxxxxxxx X. Xxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Canyon CLO 2016-1, Ltd. By: Canyon CLO Advisors LLC, its Collateral Manager By: Name: Xxxxxxxx X. Xxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Canyon CLO 2016-2, Ltd. BY: Canyon CLO Advisors LLC, its Collateral Manager By: Name: Xxxxxxxx X. Xxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Canyon CLO 2017-1, Ltd. By: Canyon CLO Advisors LLC, its Collateral Manager By: Name: Xxxxxxxx Xxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Catamaran CLO 2014-1 Ltd. By: Trimaran Advisors, L.L.C. By: Name: Xxxxxx Xxxxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Catamaran CLO 2014-2 Ltd. By: Name: Xxxxxx Xxxxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Catamaran CLO 2015-1 Ltd. By: Name: Xxxxxx Xxxxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Catamaran CLO 2016-1 LTD. By: Name: Xxxxxx Xxxxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Collective Trust High Yield Fund By: Alcentra NY, LLC, as investment advisor By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) CREDIT SUISSE FLOATING RATE HIGH INCOME FUND By: Credit Suisse Asset Management, LLC, as investment advisor By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Credit Suisse Nova (LUX) Global Senior Loan Fund By: Credit Suisse Asset Management, LLC or Credit Suisse Asset Management Limited, each acting in their capacity as Co-Portfolio Managers to Credit Suisse Fund Management S.A., management company for Credit Suisse Nova (Lux) By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Delaware Public Employees' Retirement System By: X. Xxxx Price Associates, Inc., as investment manager By: Name: Xxxxxxx Xxxxxx Title: Bank Loan Trader By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 30 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 33 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 34 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 36 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 37 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 40 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 41 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 42 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 43 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 45 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 49 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 50 Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx 53 CLO, Ltd. By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) XXXXXX 64 CLO FUNDING, LTD. By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx XXVI Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx XXVIII Senior Loan Fund By: PGIM, Inc., as Collateral Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx CLO 2013-1 LTD. BY: Xxxxx Xxxxx Management Portfolio Manager By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx CLO 2014-1, Ltd. BY: Xxxxx Xxxxx Management Portfolio Manager By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx CLO 2015-1 Ltd. By: Xxxxx Xxxxx Management Portfolio Manager By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx Floating-Rate Income Plus Fund BY: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx Floating-Rate Income Trust BY: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx Institutional Senior Loan Fund BY: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx International (Cayman Islands) Floating-Rate Income Portfolio BY: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx Limited Duration Income Fund BY: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx Senior Floating-Rate Trust BY: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx Senior Income Trust BY: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx Short Duration Diversified Income Fund BY: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxx Xxxxx VT Floating-Rate Income Fund BY: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ERIE INSURANCE EXCHANGE By: Credit Suisse Asset Management, LLC., as its investment manager for Erie Indemnity Company, as Attorney-in-Fact for Erie Insurance Exchange By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Florida Power & Light Company By: Xxxxx Xxxxx Management as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Global-Loan SV S.a x.x. Executed by Alcentra Limited as Portfolio Manager, and Alcentra NY, LLC as Sub-Manager, for and on behalf of Global-Loan SV Sarl By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ICG US CLO 2015-1, Ltd By: Name: Xxxx Xxxxxxxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ICG US CLO 2015-2, Ltd. By: Name: Xxxx Xxxxxxxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) ICG US CLO 2016-1, Ltd. By: Name: Xxxx Xxxxxxxxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) IRONSHORE INC. By: Liberty Mutual Group Asset Management Inc., its Adviser By: Name: Xxxxx Russian Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) JFIN CLO 2014-II LTD. By: Apex Credit Partners LLC, as Portfolio Manager By: Name: Xxxxxx Xxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) JFIN CLO 2015 LTD. By: Apex Credit Partners LLC, as Portfolio Manager By: Name: Xxxxxx Xxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxx Xxxxxxx Funds II - Spectrum Income Fund BY: X. Xxxx Price Associates, Inc. as investment sub-advisor By: Name: Xxxxxxx Xxxxxx Title: Bank Loan Trader By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) LCM XIII Limited Partnership By: LCM Asset Management LLC As Collateral Manager By: Name: Xxxxxxxxx X. Xxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) LCM XIX Limited Partnership By: LCM Asset Management LLC As Collateral Manager By: Name: Xxxxxxxxx X. Xxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) LCM XV Limited Partnership By: LCM Asset Management LLC As Collateral Manager By: Name: Xxxxxxxxx X. Xxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) LCM XVIII Limited Partnership By: LCM Asset Management LLC As Collateral Manager By: Name: Xxxxxxxxx X. Xxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) LCM XXI Limited Partnership By: LCM Asset Management LLC As Collateral Manager By: Name: Xxxxxxxxx X. Xxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) LCM XXII Ltd. By: LCM Asset Management LLC As Collateral Manager By: Name: Xxxxxxxxx X. Xxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) LCM XXIV Ltd. By: LCM Asset Management LLC As Collateral Manager By: Name: Xxxxxxxxx X. Xxxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Liberty Mutual Retirement Plan Master Trust, as Assignee By: LIBERTY MUTUAL GROUP ASSET MANAGEMENT INC. ACTING FOR AND ON BEHALF OF LIBERTY MUTUAL RETIREMENT PLAN MASTER TRUST By: Name: Xxxxx Russian Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) MADISON PARK FUNDING X, LTD. BY: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Madison Park Funding XII, Ltd. By: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Madison Park Funding XIII, Ltd. BY: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) MADISON PARK FUNDING XIV, LTD. BY: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Madison Park Funding XIX, Ltd. By: Credit Suisse Asset Management, LLC, as collateral manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Madison Park Funding XV, Ltd. BY: Credit Suisse Asset Management, LLC, as Portfolio Manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Madison Park Funding XVI, Ltd. BY: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) MADISON PARK FUNDING XVII, LTD. BY: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Madison Park Funding XVIII, Ltd. By: Credit Suisse Asset Management, LLC as Collateral Manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Madison Park Funding XX, Ltd. By: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Madison Park Funding XXI, Ltd. By: Credit Suisse Asset Management, LLC, as portfolio manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Multi Sector Value Bond Fund By: Amundi Pioneer Institutional Asset Management, Inc. By: Name: Xxxxxxxx X. Xxxxxx Title: Secretary and Associate General Counsel By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Northwoods Capital XV, Limited By: Xxxxxx, Xxxxxx & Co., LP As Collateral Manager By: Name: Xxxxx Xxxxxxx Title: Director of Trading By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Northwoods Capital XVI, Limited By: Xxxxxx, Xxxxxx & Co., LP As Collateral Manager By: Name: Xxxxx Xxxxxxx Title: Director of Trading By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Oaktree EIF III Series II, Ltd. By: Oaktree Capital Management, L.P. its: Collateral Manager By: Name: Xxxxxx Xxxxxx Title: Managing Director By: Name: Xxxxx Xxxxxxxxx Title: Managing Director Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Ocean Trails CLO VI By: Five Arrows Managers North America LLC as Asset Manager By: Name: Xxxx Xxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Octagon Investment Partners 25, Ltd. By: Octagon Credit Investors, LLC as Collateral Manager By: Name: Xxxxxxxx X. Xxxxxx Title: Managing Director of Portfolio Administration By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Octagon Investment Partners 28, Ltd. By: Name: Xxxxxxxx X. Xxxxxx Title: Managing Director of Portfolio Administration By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Octagon Xxxx Credit Fund Series I, Ltd. BY: Octagon Credit Investors, LLC as Portfolio Manager By: Name: Xxxxxxxx Xxxxxx Title: Managing Director of Portfolio Administration By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OHA LOAN FUNDING 2013-1, LTD. By: Oak Hill Advisors, L.P. as Portfolio Manager By: Name: Xxxxx August Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OHA LOAN FUNDING 2015-1 LTD. BY: Oak Hill Advisors, L.P. as Portfolio Manager By: Name: Xxxxx August Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OHA Loan Funding 2016-1, Ltd. By: Oak Hill Advisors, L.P. As Portfolio Manager By: Name: Xxxxx August Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM FUNDING II, LTD. By: Och-Ziff Loan Management LP, its portfolio manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM FUNDING III, LTD. By: Och-Ziff Loan Management LP, its portfolio manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM FUNDING IV, LTD. By: Och-Ziff Loan Management LP, its portfolio manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM FUNDING, LTD. By: OZ CLO Management LLC, its portfolio manager By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM IX, LTD. By: Och-Ziff Loan Management LP, its collateral manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM VI, LTD. By: Och-Ziff Loan Management LP, its asset manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM VII, LTD. By: Och-Ziff Loan Management LP, its collateral manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM VIII, LTD. By: Och-Ziff Loan Management LP, its collateral manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM XI, LTD. By: Och-Ziff Loan Management LP, its collateral manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM XII, LTD. By: Och-Ziff Loan Management LP, its collateral manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM XIII, Ltd. By: Och-Ziff Loan Management LP, its collateral manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM XIV, LTD. By: Och-Ziff Loan Management LP, its collateral manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM XIX, Ltd. By: OZ CLO Management LLC, its collateral manager By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM XV, LTD. By: Och-Ziff Loan Management LP, its collateral manager By: Och-Ziff Loan Management LLC, its general partner By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM XVI, Ltd. By: OZ CLO Management LLC, its successor portfolio manager By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) OZLM XVII, Ltd. By: OZ CLO Management LLC, its collateral manager By: Name: Xxxxxx X. Xxxx Title: CFO By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Pacific Select Fund Floating Rate Loan Portfolio BY: Xxxxx Xxxxx Management as Investment Sub- Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Peerless Insurance Company By: Name: Xxxxx Russian Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Pioneer Diversified High Income Trust By: Amundi Pioneer Asset Management, Inc. By: Name: Xxxxxxxx X. Xxxxxx Title: Secretary and Associate General Counsel By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Pioneer Floating Rate Fund By: Amundi Pioneer Asset Management, Inc. By: Name: Xxxxxxxx X. Xxxxxx Title: Secretary and Associate General Counsel By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Pioneer Floating Rate Trust By: Amundi Pioneer Asset Management, Inc. By: Name: Xxxxxxxx X. Xxxxxx Title: Secretary and Associate General Counsel By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Pioneer Investments Diversified Loans Fund By: Amundi Pioneer Asset Management, Inc. By: Name: Xxxxxxxx X. Xxxxxx Title: Secretary and Associate General Counsel By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Pioneer Multi-Asset Income Fund By: Amundi Pioneer Asset Management, Inc. By: Name: Xxxxxxxx X. Xxxxxx Title: Secretary and Associate General Counsel By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Pioneer Multi-Asset Ultrashort Income Fund By: Amundi Pioneer Asset Management, Inc. By: Name: Xxxxxxxx X. Xxxxxx Title: Secretary and Associate General Counsel By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Pramerica Global Loan Opportunities Limited By: PGIM, Inc., as Investment Manager By: Name: Xxxxxx Xxxxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Rockford Tower CLO 2017-2, Ltd. By: King Street Capital Management, L.P. Its Authorized Signatory By: Name: Xxxxxx Xxxx Title: Authorized Signatory By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Senior Debt Portfolio BY: Boston Management and Research as Investment Advisor By: Name: Xxxxxxx Brotthof Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Shackleton 2013-III CLO, Ltd. BY: Alcentra NY, LLC, as investment advisor By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Shackleton 2013-IV CLO, LTD by Alcentra NY, LLC as its Collateral Manager By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Shackleton 2014-V CLO, Ltd. By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Shackleton 2014-VI CLO, Ltd. BY: Alcentra NY, LLC as its Collateral Manager By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Shackleton 2015-VII CLO, Ltd BY: Alcentra NY, LLC as its Collateral Manager By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Shackleton 2015-VIII CLO, Ltd. By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Shackleton 2016-IX CLO, Ltd by Alcentra NY, LLC as its Collateral Manager By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Shackleton 2017-X CLO, Ltd by Alcentra NY, LLC as its Collateral Manager By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Shackleton 2017-XI CLO, LTD. by Alcentra NY, LLC as its Collateral Manager By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) SHACKLETON 2017-XII CLO, LTD. by Alcentra NY, LLC as its Collateral Manager By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) STATE OF NEW MEXICO STATE INVESTMENT COUNCIL By: authority delegated to the New Mexico State Investment Office By: Credit Suisse Asset Management, LLC, its investment manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Xxxxxx Creek CLO 2016-1, Ltd. By: Name: Xxxx Xxxxxxxxx Title: Research Analyst By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) X. Xxxx Price Floating Rate Fund, Inc. By: Name: Xxxxxxx Xxxxxx Title: Bank Loan Trader By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) X. Xxxx Price Institutional Floating Rate Fund By: Name: Xxxxxxx Xxxxxx Title: Bank Loan Trader By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) THE CITY OF NEW YORK GROUP TRUST BY: Credit Suisse Asset Management, LLC, as its manager By: Name: Xxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) The Dreyfus/Laurel Funds, Inc. - Dreyfus Floating Rate Income Fund By: Alcentra NY, LLC, as investment advisor By: Name: Young Kwon Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) THL Credit Wind River 2016-1 CLO Ltd. By THL Credit Senior Loan Strategies LLC, its Manager By: Name: Xxxxx X. Xxxxxxx Title: Managing Director/Co-Head By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Trestles CLO 2017-1, Ltd. By: Pacific Asset Management, as collateral manager By: Name: Xxxx Xxxxxxxx Title: Authorized Signatory By: Name: Xxxxxx Xxxx Title: Authorized Sgnatory Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2012-4, Ltd. BY: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2013-1, Ltd. BY: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2013-2, Ltd. BY: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2013-3, Ltd. BY: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2014-1, Ltd. BY: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2014-2, Ltd. BY: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2014-3, Ltd. BY: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2014-4, Ltd. BY: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2015-1, Ltd. By: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2015-2, Ltd. By: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2015-3, Ltd. By: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2016-1, Ltd. By: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2016-2, Ltd. By: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2016-3, Ltd. By: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2016-4, Ltd. By: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya CLO 2017-4, Ltd. By: Voya Alternative Asset Management LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya Floating Rate Fund BY: Voya Investment Management Co. LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya Prime Rate Trust BY: Voya Investment Management Co. LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya Senior Income Fund BY: Voya Investment Management Co. LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) Voya Strategic Income Opportunities Fund By: Voya Investment Management Co. LLC, as its investment manager By: Name: Xxxxxxx Xxxxxxxx Title: Vice President By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) XXXX CLO 3, Limited XXXX CLO 3, Limited By: Name: Xxxxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
By its execution below, the undersigned Lender agrees to the terms of this Amendment (including, without limitation, the roll over of all of its outstanding Loans pursuant to a cashless settlement mechanism as set forth in Section 10 of the Amendment) XXXX CLO 5, Limited By Xxxx Leveraged Loan Master Manager, LLC its collateral manager By: Xxxx Group, LLC, its sole member By: Name: Xxxxxxx Xxxxxx Title: Managing Director By: Name: Title: Signature Page to Amendment No. 2 to Term Loan Credit Agreement
EXHIBIT A Conformed Credit Agreement Attached
Exhibit A TERM LOAN CREDIT AGREEMENT dated as of July 18, 2016 and amended as of July 18, 2017 and May 29, 2018 among GLOBAL BRASS AND COPPER, INC., as the Borrower GLOBAL BRASS AND COPPER HOLDINGS, INC., as Holdings The Loan Guarantors Party Hereto The Lenders Party Hereto BANK OF AMERICA, N.A., XXXXX FARGO BANK, NATIONAL ASSOCIATION and DEUTSCHE BANK SECURITIES INC., as Co-Syndication Agents BRANCH BANKING AND TRUST COMPANY, KEYBANK NATIONAL ASSOCIATION and XXXXXXX XXXXX & COMPANY, L.L.C., as Co-Documentation Agents and JPMORGAN CHASE BANK, N.A., as Administrative Agent ___________________________ JPMORGAN CHASE BANK, N.A., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, XXXXX FARGO SECURITIES, LLC and DEUTSCHE BANK SECURITIES INC. as Joint Bookrunners and Joint Lead Arrangers ACTIVE 231922421
“Account” has the meaning assigned to such term in the Security Agreement. “Account Debtor” means any Person obligated on an Account. “Acquisition” means any transaction, or any series of related transactions, consummated on or after the Effective Date, by which any Loan Party or any Subsidiary (a) acquires any going business or all or substantially all of the assets of any Person, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the Equity Interests of a Person which has ordinary voting power for the election of directors or other similar management personnel of a Person (other than Equity Interests having such power only by reason of the happening of a contingency) or a majority of the outstanding Equity Interests of a Person. “Additional Term Lender” mean any Lender with an Additional Term Loan Commitment or an outstanding Additional Term Loan. “Additional Term Loan Commitments” means any term commitment added pursuant to Section 2.23, 2.24 and/or 9.02(f). “Additional Term Loans” means any term loan added pursuant to Section 2.23, 2.24 and/or 9.02(f). “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period or for any ABR Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate. “Administrative Agent” means JPMorgan Chase Bank, N.A. (including its branches and Affiliates), in its capacity as administrative agent for the Lenders hereunder. “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent. “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the specified Person. “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1%, and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of 2
interest pursuant to Section 2.14 hereof, then the Alternate Base Rate shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “Amendment No. 1” means Amendment No. 1 to Term Loan Credit Agreement, dated as of July 18, 2017, by and among the Borrower, Holdings, the other Loan Parties party thereto, the Lenders party thereto, and the Administrative Agent. “Amendment No. 1 Effective Date” means July 18, 2017. “Amendment No. 2 Effective Date” means May 29, 2018. “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to Holdings or any of its Affiliates from time to time concerning or relating to bribery or corruption. “Applicable Percentage” means, with respect to any Lender of any Class, a percentage equal to a fraction the numerator of which is the aggregate outstanding principal amount of the Loans and unused Additional Term Loan Commitments of such Term Lender under the applicable Class and the denominator of which is the aggregate outstanding principal amount of the Loans and unused Term Commitments of all Term Lenders under the applicable Class. “Applicable Rate” means, for any day occurring on or after the Amendment No. 2 Effective Date, (x) with respect to any Eurodollar Loan, 2.50% per annum, and (y) with respect to any ABR Loan, 1.50% per annum. “Approved Fund” has the meaning assigned to such term in Section 9.04. “Assignment and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent. “Available Amount” means, at any time, an amount equal to, without duplication: (a) the sum, without duplication, of: (i) $75,000,000; plus (ii) 50% of the Net Income of the Loan Parties for the period (taken as one accounting period) from the Effective Date to the end of Holdings’ most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, in the case such Net Income for such period is a deficit, minus 100% of such deficit) at such time; plus (iii) the cumulative amount of cash and cash equivalent proceeds from (a) the sale of Qualified Equity Interests of Holdings after the Effective Date and on 3
or prior to such time (including upon exercise of warrants or options) which proceeds have been contributed as equity to the capital of the Borrower and (b) the Qualified Equity Interests of Holdings issued upon conversion of Indebtedness of the Borrower or the Subsidiary Guarantors owed to a Person other than a Loan Party incurred after the Effective Date (in each case excluding any such contribution by Borrower or any of the Subsidiary Guarantors); plus (iv) the aggregate amount of Declined Proceeds; plus (v) to the extent not included pursuant to clause (iii) above, an amount equal to the aggregate amount of cash and the fair market value, as determined in good faith by the Borrower, of marketable securities or other property contributed to the capital of the Borrower after the Effective Date (excluding any such contribution by any of the Loan Parties (other than Holdings)); minus (b) the sum, without duplication, of: (i) any amount of the Available Amount used to make Restricted Payments pursuant to Section 6.08(a)(vii) and Restricted Debt Payments pursuant to Section 6.08(b)(v) after the Effective Date and on or prior to such time; plus (ii) any amount of the Available Amount used to make investments pursuant to Section 6.04(r) after the Effective Date and on or prior to such time. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution. “Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. “Banking Services” means each and any of the following bank services provided to any Loan Party or its Subsidiaries by any Lender or any of its Affiliates: (a) credit cards for commercial customers (including, without limitation, “commercial credit cards” and purchasing cards), (b) stored value cards, (c) merchant processing services, and (d) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, any direct debit scheme or arrangement, overdrafts and interstate depository network services). “Banking Services Obligations” means any and all obligations of the Loan Parties or their Subsidiaries, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services. “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto, as hereafter amended. 4
“Bankruptcy Event” means, with respect to any Person, when such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business, appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such Person with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment on its assets or permits such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person. “Beneficial Owner” means, with respect to any U.S. Federal withholding Tax, the beneficial owner, for U.S. Federal income tax purposes, to whom such Tax relates. “Board” means the Board of Governors of the Federal Reserve System of the U.S. “Borrower” means Global Brass and Copper, Inc., a Delaware corporation. “Borrowing” means Loans of the same Type and Class, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect. “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03. “Burdensome Restrictions” means any consensual encumbrance or restriction of the type described in clause (a) or (b) of Section 6.10. “Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for general business in London. “Capital Expenditures” means, without duplication, any expenditure or commitment to expend money for any purchase or other acquisition of any asset which would be classified as a capital expenditure on a consolidated statement of cash flows of Holdings and its Subsidiaries prepared in accordance with GAAP. “Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP. “cash equivalents” means, as at any date of determination, (a) securities (i) issued or 5
directly and unconditionally guaranteed or insured as to interest and principal by the U.S. government or (ii) issued by any agency or instrumentality of the U.S., the obligations of which are backed by the full faith and credit of the U.S., in each case maturing within one year after such date and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (b) direct obligations issued by any state of the U.S., or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating organization) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments) maturing within one year after such date and issued or accepted by any Lender or by any bank or trust company organized under, or authorized to operate as a bank or trust company under, the laws of the U.S., any state thereof or the District of Columbia or any political subdivision thereof and that has capital and surplus of not less than $500,000,000 and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; and (e) shares of any money market mutual fund that has (i) substantially all of its assets invested in the types of investments referred to in clauses (a) through (d) above, (ii) net assets of not less than $500,000,000 and (iii) a rating of at least A-2 from S&P or at least P-2 from Xxxxx’x. “Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding voting Equity Interests of Holdings; (b) Holdings shall cease to beneficially own, directly or indirectly, free and clear of all Liens or other encumbrances (other than Liens granted under the Loan Documents or the ABL Loan Documents) 100% of the issued and outstanding Equity Interests of the Borrower; or (c) other than in connection with a merger, amalgamation or consolidation permitted by this Agreement (including Section 6.03), the Borrower shall cease to beneficially own, directly or indirectly, free and clear of all Liens or other encumbrances (other than Liens granted under the Loan Documents or the ABL Loan Documents) 100% of the issued and outstanding voting Equity Interests of each Loan Party (other than Holdings). “Change in Law” means the occurrence after the date of this Agreement (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) of any of the following: (a) the adoption of or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority; or (c) compliance by any Lender (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline, requirement or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder 6
or issued in connection therewith or in the implementation thereof, and (y) 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. “Charges” has the meaning assigned to such term in Section 9.17. “CFC” means any existing or future direct or indirect subsidiary of the Borrower that is a controlled foreign corporation for purposes of section 957 of the Code. “Class”, when used with respect to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial Term Loans, Additional Term Loans of any series established as a separate “Class” pursuant to Section 2.23, 2.24 and/or 9.02(f) (b) any Commitment, refers to whether such Commitment is an Initial Term Commitment, an Additional Term Loan Commitment of any series established as a separate “Class” pursuant to Section 2.23, 2.24 and/or 9.02(f), and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class. “Code” means the Internal Revenue Code of 1986, as amended from time to time. “Collateral” means any and all property owned, leased or operated by a Person covered by the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be, become or be intended to be, subject to a security interest or Lien in favor of the Administrative Agent, on behalf of itself and the Lenders and other Secured Parties, to secure the Secured Obligations; provided, that Excluded Property shall be excluded from the definition of Collateral. “Collateral Access Agreement” has the meaning assigned to such term in the Security Agreement. “Collateral Documents” means, collectively, the Security Agreement and any other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Secured Obligations, including, without limitation, all other security agreements, pledge agreements, loan agreements, notes, guarantees, subordination agreements, pledges, powers of attorney, consents, assignments, contracts, fee letters, notices, leases, financing statements and all other written matter whether theretofore, now or hereafter executed by any Loan Party and delivered to the Administrative Agent in connection with this Agreement or any other Loan Document. “Commitment” means, with respect to each Lender, such Lender’s Initial Term Loan Commitment and Additional Term Loan Commitment, as applicable, in effect as of such time. “Commitment Schedule” means the Schedule attached hereto identified as such. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute. 7
“Commodity Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving or related to the conduct of the Borrower’s operations, or settled by reference to one or more metal commodities, energy commodities, interest rate derivatives, or foreign currency arrangements, in each case, entered in the ordinary course of business consistent with past practice and not for any speculative purposes. “Communications” has the meaning assigned to such term in Section 9.01(d). “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. “Consolidated Adjusted EBITDA” means, for any period, Net Income for such period plus, the sum, without duplication, during such period of: (i) Net Interest Expense (Income); (ii) plus income tax expense as recorded in Holdings’ statement of consolidated operations; (iii) plus all amounts attributable to depreciation and amortization expense; (iv) (a) minus any extraordinary income or (b) plus any extraordinary expense; (v) plus any other net expenses or charges that do not constitute reserves, whether or not otherwise includable as a separate item in the statement of such Net Income, including the following: (1) (a) minus any gains or (b) plus any losses, in each case, due to the depletion of a last-in-first-out layer of Inventory; (2) (a) minus any gains or (b) plus any losses, in each case, due to recording lower of cost or market adjustments to Inventory; (3) (a) minus any gains or (b) plus any losses, in each case, incurred due to restructuring and other business transformation charges, including severance, and net losses from disposed, abandoned, transferred, closed, or discontinued operations; provided that the amounts added back to Net Income pursuant to this clause (v)(3) shall not exceed $10,000,000 in the aggregate during any trailing twelve calendar month period; and (4) plus non-cash share-based compensation activity from stock compensation awards to employees and board of director members permitted under this Agreement; (vi) (a) minus any unrealized profits or (b) plus any unrealized losses, in each case, arising from Swap Agreements (including Commodity Swap Agreements) of the Borrower and its Subsidiaries; (vii) (a) minus any income or gain or (b) plus any expenses or charges incurred, in each case, as a result of the early extinguishment of Indebtedness to the extent included within the Borrower’s statement of operations (excluding Swap Agreements, Commodity Swap Agreements or other derivative instruments); (viii) plus charges or expenses related to the Transactions; 8
(ix) plus expenses incurred in connection with the prepayment, amendment, modification or refinancing of Indebtedness during such period; (x) plus any transaction costs or charges incurred during such period in connection with an actual or proposed incurrence of Indebtedness, including a refinancing, prepayment or amendment thereof, or any issuance of Equity Interests, investment, Acquisition (whether or not consummated), disposition, abandonment, divestiture or recapitalization (in each case whether or not consummated) outside the ordinary course of business; and (xi) plus for each period ending on or prior to December 31, 2017, excessive audit, consulting, board of director and other expenses incurred to operate Holdings as a public company in an aggregate amount not to exceed $1,500,000 during the trailing twelve calendar month period then ended; all calculated for Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP. “Consolidated Total Assets” means, as of the date of any determination thereof, total assets of Holdings and its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date. “Consolidated Total Indebtedness” means at any date the sum, without duplication, of (a) the aggregate Indebtedness of Holdings and its Subsidiaries calculated on a consolidated basis as of such date in accordance with GAAP, (b) the aggregate amount of Indebtedness of Holdings and its Subsidiaries relating to the maximum drawing amount of all letters of credit outstanding and bankers acceptances and (c) Indebtedness of the type referred to in clauses (a) or (b) hereof of another Person guaranteed by Holdings or any of its Subsidiaries; provided that no Indebtedness under any Commodity Swap Agreement shall be included in the determination of Consolidated Total Indebtedness. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Control Investment Affiliate” means, as to any Person, any other Person that (a) directly or indirectly, is in control of, is controlled by, or is under common control with, such Person and (b) is organized by such Person primarily for the purpose of making equity or debt investments in one or more companies. “Credit Party” means the Administrative Agent or any other Lender. “Declined Proceeds” has the meaning assigned to such term in Section 2.11(b). “Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default. “Defaulting Lender” means any Lender that has become the subject of (i) a Bankruptcy 9
all of the assets of which consist of Equity Interests and/or debt interests of one or more CFCs, so long as such Domestic Subsidiary does not conduct any business or activity other than the ownership of such Equity Interests and/or debt interests and does not incur, and is not otherwise liable for, any indebtedness or other liabilities or (ii) any Disregarded Domestic Subsidiary; provided that no Person that is a Subsidiary of Holdings on the Effective Date shall be a Domestic Subsidiary Holding Company. “Dutch Auction” means an auction (an “Auction”) conducted by the Borrower or one (1) of its Subsidiaries in order to purchase Loans in accordance with the following procedures: (a) Notice Procedures. In connection with an Auction, the Borrower will provide notification to the Administrative Agent (for distribution to the relevant Term Lenders) of the Loans that will be subject to the Auction (an “Auction Notice”). Each Auction Notice shall be in a form reasonably acceptable to the Administrative Agent and shall contain (i) the total cash value of the bid, in a minimum amount of $5,000,000 with minimum increments of $1,000,000 (the “Auction Amount”), (ii) the discount to par, which shall be a range (the “Discount Range”) of percentages of the par principal amount of the Loans at issue that represents the range of purchase prices that could be paid in the Auction and (iii) be extended, at the sole discretion of the Borrower, to (x) each Term Lender with respect to any Loan of any Class. (b) Reply Procedures. In connection with any Auction, each relevant Term Lender may, in its sole discretion, participate in such Auction and may provide the Administrative Agent with a notice of participation (the “Return Bid”) which shall be in a form reasonably acceptable to the Administrative Agent and shall specify (i) a discount to par that must be expressed as a percentage (the “Reply Discount”), which must be within the Discount Range, and (ii) a principal amount of such Loans which must be in increments of $500,000 (the “Reply Amount”). A Term Lender may avoid the minimum amount condition solely when submitting a Reply Amount equal to the Term Lender’s entire remaining amount of such Class of Loans. Term Lenders may only submit one (1) Return Bid per Auction but each Return Bid may contain up to three (3) bids only one (1) of which can result in a Qualifying Bid (as defined below). In addition to the Return Bid, the participating Term Lender must execute and deliver, to be held in escrow by the Administrative Agent, an Assignment and Assumption with the dollar amount of the Loan to be left in blank, which amount shall be completed by the Administrative Agent in accordance with the final determination of such Term Lender’s Qualifying Bid pursuant to subclause (c) below. (c) Acceptance Procedures. Based on the Reply Discounts and Reply Amounts received by the Administrative Agent, the Administrative Agent, in consultation with the Borrower, will determine the applicable discount (the “Applicable Discount”) for the Auction, which will be the lowest Reply Discount for which the Borrower can complete the Auction at the Auction Amount; provided that, in the event that the Reply Amounts are insufficient to allow the Borrower to complete a purchase of the entire Auction Amount (any such Auction, a “Failed Auction”), the Borrower shall either, at its election, (i) withdraw the Auction or (ii) complete the Auction at an Applicable Discount equal to the highest Reply Discount. The Borrower shall purchase the applicable Loans (or the respective portions thereof) from each such Term Lender with a Reply Discount that is 11
equal to or greater than the Applicable Discount (“Qualifying Bids”) at the Applicable Discount; provided that, if the aggregate proceeds required to purchase all such Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction, the Borrower shall purchase such Loans at the Applicable Discount ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Administrative Agent). If a Term Lender has submitted a Return Bid containing multiple bids at different Reply Discounts, only the bid with the highest Reply Discount that is equal to or greater than the Applicable Discount will be deemed the Qualifying Bid of such Term Lender. Each participating Term Lender will receive notice of a Qualifying Bid as soon as reasonably practicable but in no case later than five (5) Business Days from the date the Return Bid was due. (d) Additional Procedures. Furthermore, in connection with any Auction, upon submission by a Term Lender of a Qualifying Bid, such Term Lender will be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Discount. “ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC. “EEA Financial Institution” means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02). “Effective Date Debt Repayments” means, collectively, the repayment in full on the Effective Date of all of the existing Indebtedness outstanding and the termination of any remaining commitments and obligations with respect thereto as of the Effective Date under the Borrower’s (a) existing amended and restated asset based revolving credit facility, dated as of August 15, 2010, and (b) existing 9.50% Senior Secured Notes due 2019 (the “Senior Secured Notes”), issued under that certain Indenture, dated as June 1, 2012, in each case as amended, supplemented or otherwise modified from time to time prior to the date hereof. “Effective Yield” means, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation with the Borrower in a manner consistent 12
with generally accepted financial practices, taking into account (a) interest rate margins, (b) interest rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest rate floors prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an assumed four-year average life to maturity or lesser remaining average life to maturity), but excluding (i) any arrangement, commitment, structuring, underwriting and/or amendment fees (regardless of whether any such fees are paid to or shared in whole or in part with any lender) and (ii) any other fee that is not payable to all relevant lenders generally; provided, however, that (A) to the extent that the Adjusted LIBO Rate or Alternate Base Rate (without giving effect to any floor specified in the definition thereof) is less than any floor applicable to the loans in respect of which the Effective Yield is being calculated on the date on which the Effective Yield is determined, the amount of the resulting difference will be deemed added to the interest rate margin applicable to the relevant Indebtedness for purposes of calculating the Effective Yield and (B) to the extent that the Adjusted LIBO Rate (for a period of three months) or Alternate Base Rate (without giving effect to any floor specified in the definition thereof) is greater than any applicable floor on the date on which the Effective Yield is determined, the floor will be disregarded in calculating the Effective Yield. Any determination by the Administrative Agent of the Effective Yield shall be conclusive and binding on all Lenders absent demonstrable error and the Administrative Agent shall have no liability to any Person with respect to such determination absent bad faith, gross negligence or willful misconduct. “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record. “Electronic System” means any electronic system, including e-mail, e-fax, web portal access for the Borrower, Intralinks®, ClearPar®, Debt Domain, Syndtrak and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security system. “Eligible Assignee” means (a) any Lender, (b) any commercial bank, insurance company, or finance company, financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate of any Lender and (d) any Approved Fund of any Lender; provided that in no event shall an Ineligible Institution constitute an Eligible Assignee. “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters. “Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Holdings or any Subsidiary directly or indirectly resulting from or based upon (a) any violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) any exposure to any Hazardous Materials, (d) the Release 13
or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. “Equipment” has the meaning assigned to such term in the Security Agreement. “Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any of the foregoing. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Loan Party, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code. “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure to satisfy the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Loan Party or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by any Loan Party or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal of any Loan Party or any ERISA Affiliate from any Multiemployer Plan; or (g) the receipt by any Loan Party or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the imposition upon any Loan Party or any ERISA Affiliate of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA. “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. “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Adjusted LIBO Rate. “Event of Default” has the meaning assigned to such term in Article VII. “Excess Cash Flow” means, for any fiscal year period of Holdings beginning with the fiscal year ending December 31, 2017, the excess, if any, of the sum, without duplication, of (a) less (b) 14
less (c) where each are defined and shown within Holding’s consolidated statement of cash flows for such period as follows: (a) cash flow from operations; (b) cash flow from investing activities; and (c) the sum, without duplication, of all of the following as included within net cash flows from financing activities: (i) payments of principal on Indebtedness for borrowed money (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder); plus (ii) premiums paid to retire or repurchase Indebtedness for borrowed money; plus (iii) principal payments under Capital Lease Obligations; plus (iv) dividends paid pursuant to Sections 6.08(a)(vi), 6.08(a)(vii) and 6.08(a)(viii); plus (v) share repurchases pursuant to Section 6.08(a)(iii) (excluding those related to stock compensation awards); provided that if the sum of the foregoing shall be less than zero, such amount shall be deemed to be zero for purposes of this Agreement. “Excluded Domestic Subsidiary” means (a) any Domestic Subsidiary Holding Company and (b) any Domestic Subsidiary that is a direct or indirect subsidiary of a Foreign Subsidiary. “Excluded Property” has the meaning assigned to such term in the Security Agreement. “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, 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 Guarantor’s failure for any reason to constitute an ECP at the time the Guarantee of such Guarantor or the grant of such security interest becomes or would become 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 or security interest is or becomes illegal. “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case 15
to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it changed its lending office; (c) Taxes attributable to such Recipient’s failure to comply with Section 2.17(f); and (d) any U.S. Federal withholding Taxes imposed under FATCA. “Extended Term Loans” has the meaning assigned to such term in Section 2.24(a). “Extension” has the meaning assigned to such term in Section 2.24(a). “Extension Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (for purposes of giving effect to Section 2.24) and the Borrower executed by each of (a) Holdings, the Borrower and the Subsidiary Guarantors, (b) the Administrative Agent and (c) each Lender that has accepted the applicable Extension Offer pursuant hereto and in accordance with Section 2.24. “Extension Offer” has the meaning assigned to such term in Section 2.24(a). “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreements implementing any of the foregoing, and any laws with respect to such intergovernmental agreements. “Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate. For the avoidance of doubt, if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower or Holdings. “Fixed Charge Coverage Ratio” means, at any date, the ratio of (a) Consolidated Adjusted EBITDA minus Unfinanced Capital Expenditures (excluding capitalized interest) minus expenses for Taxes paid in cash to (b) Fixed Charges, all calculated for the Test Period ended on such date (or, if such date is not the last day of a fiscal quarter, ended on the last day of the fiscal quarter most recently ended prior to such date). “Fixed Charges” means, for any period, without duplication, Interest Expense paid in cash, plus scheduled principal payments on Indebtedness paid or payable in cash minus interest income received in cash, all calculated for Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP. “Fixed Incremental Amount” means (a) $75,000,000 minus (b) the aggregate outstanding 16
principal amount of all loans made under any Incremental Facilities and/or Incremental Equivalent Debt incurred or extended in reliance on the Fixed Incremental Amount. “Fixtures” has the meaning assigned to such term in the Security Agreement. “Flood Laws” has the meaning assigned to such term in Section 8.10. “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for Tax purposes. “Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary. “Funded Debt” means as to any Person, all Indebtedness of such Person that matures more than one year from the date of its creation or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all current maturities and current sinking fund payments in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Loan Parties, Indebtedness in respect of the Loans. “Funding Account” has the meaning assigned to such term in Section 4.01(i). “GAAP” means generally accepted accounting principles in the U.S. “Governmental Authority” means the government of the U.S., 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. “Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. “Guaranteed Obligations” has the meaning assigned to such term in Section 10.01. 17
“Guarantors” means all Loan Guarantors and all non-Loan Parties who have delivered an Obligation Guaranty, and the term “Guarantor” means each or any one of them individually. For the avoidance of doubt, no Excluded Domestic Subsidiary (except a Domestic Subsidiary Holding Company) shall serve as a Guarantor. “Hazardous Materials” means: (a) any substance, material, or waste that is included within the definitions of “hazardous substances,” “hazardous materials,” “hazardous waste,” “toxic substances,” “toxic materials,” “toxic waste,” or words of similar import in any Environmental Law; (b) those substances listed as hazardous substances by the United States Department of Transportation (or any successor agency) (49 C.F.R. 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) (40 C.F.R. Part 302 and amendments thereto); and (c) any substance, material, or waste that is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural chemical. “Holdings” means Global Brass and Copper Holdings, Inc., a Delaware corporation. “Impacted Interest Period” has the meaning assigned to such term in the definition of “LIBO Rate.” “Incremental Cap” means (a) the Fixed Incremental Amount, plus (b) an unlimited amount so long as, in the case of this clause (b), after giving effect to the relevant Incremental Facility or Incremental Equivalent Debt, the Net Senior Secured Leverage Ratio does not exceed 2.50:1.00 (such amount under this clause (b), the “Ratio-Based Incremental Amount”), determined on a pro forma basis after giving effect to such Incremental Facility or Incremental Equivalent Debt, including the application of the proceeds thereof (without “netting” the cash proceeds of the applicable Incremental Facility or Incremental Equivalent Debt on the consolidated balance sheet of Holdings). It is understood and agreed that all or any portion of an Incremental Facility or Incremental Equivalent Debt shall first be requested under the Ratio-Based Incremental Amount basket. If no amount is available for such Incremental Facility or Incremental Equivalent Debt under the Ratio- Based Incremental Amount basket, or if only a portion of such Incremental Facility or Incremental Equivalent Debt is available under the Ratio-Based Incremental Amount basket, then the Borrower may request that such Incremental Facility or Incremental Equivalent Debt or portion thereof, as the case may be, be extended under the Fixed Incremental Amount basket (subject to the availability thereof). Any portion of the Fixed Incremental Amount used to fund an Incremental Facility or Incremental Equivalent Debt shall not be available for future extensions of incremental term loans. “Incremental Commitment” means any commitment made by a lender to provide all or any portion of any Incremental Term Loans. “Incremental Equivalent Debt” means Indebtedness in the form of secured or unsecured notes or loans or junior secured or unsecured notes or loans and/or commitments in respect of any 18
of the foregoing extended, incurred or implemented in lieu of loans under an Incremental Facility; provided, that: (a) the aggregate outstanding amount thereof shall not exceed the Incremental Cap, (b) except as otherwise agreed by the lenders or holders providing such notes or loans, no Event of Default exists immediately prior to or after giving effect to such notes or loans, (c) the Weighted Average Life to Maturity applicable to such notes or loans (other than customary bridge loans with a maturity date of no longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (c)) is no shorter than the Weighted Average Life to Maturity of the then-existing Loans, (d) the final maturity date with respect to such notes or loans (other than customary bridge loans with a maturity date of no longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (d)) is no earlier than the Latest Term Loan Maturity Date on the date of the issuance or incurrence, as applicable, thereof, (e) in the case of any such Indebtedness in the form of term loans that are pari passu with the Initial Term Loans in right of payment and with respect to security (other than customary bridge loans), the Effective Yield applicable thereto will not be more than 0.50% per annum higher than the Effective Yield in respect of the Initial Term Loans unless the Effective Yield with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield applicable to such Indebtedness, minus 0.50% per annum, (f) any such Indebtedness may not participate on a greater than pro rata basis in any voluntary or mandatory prepayment in respect of the Initial Term Loans (and any Additional Term Loans then subject to ratable repayment requirements), (g) no such Indebtedness may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral, and (h) in the case any such Indebtedness is pari passu with or subordinated to any then-existing tranche of Loans in right of payment or security, it shall be subject to an Acceptable Intercreditor Agreement. “Incremental Facilities” has the meaning assigned to such term in Section 2.23(a). “Incremental Facility Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (solely for purposes of giving effect to Section 2.23) and the Borrower executed by each of (a) Holdings, the Borrower and the Subsidiary Guarantors, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred pursuant thereto and in accordance with Section 2.23. 19
“Incremental Term Facility” has the meaning assigned to such term in Section 2.23(a). “Incremental Term Loans” has the meaning assigned to such term in Section 2.23(a). “Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable incurred in the ordinary course of business which are not more than 90 days past due), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) obligations under any earnout that has become due and payable (but has not been paid) pursuant to an Acquisition and as reflected on the balance sheet of such Person in accordance with GAAP, (l) any other Off-Balance Sheet Liability and (m) obligations, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (i) any and all Swap Agreements (other than any Commodity Swap Agreements), and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction (other than any Commodity Swap Agreement transaction). The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor 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 that such Person is not liable therefor. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by, or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in the foregoing clause (a) hereof, Other Taxes. “Indemnitee” has the meaning assigned to such term in Section 9.03(b). “Ineligible Institution” has the meaning assigned to such term in Section 9.04(b). “Information” has the meaning assigned to such term in Section 9.12. “Information Memorandum” means the Confidential Information Memorandum dated June 16, 2016 relating to the Borrower and the Transactions. “Initial Term Lender” means any Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan. 20
“Initial Term Loan Commitment” means, with respect to each Term Lender, the commitment of such Term Lender to make Initial Term Loans hereunder in an aggregate amount not to exceed the amount set forth opposite such Term Lender’s name on the Commitment Schedule, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to (i) assignments by or to such Term Lender pursuant to Section 9.04 or (ii) increased from time to time pursuant to Section 2.23. The aggregate amount of the Term Lenders’ Initial Term Loan Commitments on the Effective Date is $320,000,000. “Initial Term Loan Maturity Date” means May 29, 2025. “Initial Term Loans” means the term loans made by the Initial Term Lenders to the Borrower pursuant to Section 2.01(a). On the Amendment No. 2 Effective Date, the aggregate outstanding principal amount of the Initial Term Loans is $315,200,000. “Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, by and among the Administrative Agent, the ABL Administrative Agent, the Borrower and the other Loan Parties. “Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.08. “Interest Expense” means, for any period, total interest expense (including that attributable to Capital Lease Obligations) of Holdings and its Subsidiaries for such period with respect to all outstanding Indebtedness of Holdings and its Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptances and net costs under Swap Agreements (other than any Commodity Swap Agreements) in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP), calculated on a consolidated basis for Holdings and its Subsidiaries for such period in accordance with GAAP. “Interest Payment Date” means (a) with respect to any ABR Loan, the first day of each calendar month and the Maturity Date and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part (and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period) and the Maturity Date. “Interest Period” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Eurodollar Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three, six or twelve months thereafter, as the Borrower may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding 21
day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing. “Interpolated Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time. “Inventory” has the meaning assigned to such term in the Security Agreement. “IRS” means the United States Internal Revenue Service. “Joinder Agreement” means a Joinder Agreement in substantially the form of Exhibit E. “Joint Lead Arrangers” means JPMCB, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxx Fargo Securities, LLC and Deutsche Bank Securities Inc., in their capacities as joint lead arrangers and joint bookrunners. “JPMCB” means JPMorgan Chase Bank, N.A., a national banking association, in its individual capacity, and its successors. “Latest Term Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or any Term Commitment. “Lender” or “Term Lender” means any Initial Term Lender and any Additional Term Lender and any other Person that becomes a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”) then the LIBO Rate shall be the Interpolated Rate. It is understood and agreed that all of the terms and conditions of this definition of “LIBO Rate” shall be subject to Section 2.14. Notwithstanding the above, to the extent that “LIBO Rate” or “Adjusted LIBO Rate” is used in connection with an ABR Borrowing, such rate shall be determined as modified by the definition of Alternate Base Rate. “LIBO Screen Rate” means, for any day and time, with respect to any Eurodollar Borrowing for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for dollars) for a period equal in length to such Interest Period as displayed on such day and time on 22
pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion) provided that if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. “License Agreement” has the meaning assigned to such term in the Security Agreement. “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities. “Loan Documents” means, collectively, this Agreement, any promissory notes delivered pursuant to this Agreement, the Collateral Documents, the Loan Guaranty, any Obligation Guaranty, the Intercreditor Agreement each Refinancing Amendment, each Incremental Facility Amendment, each Extension Amendment and all other agreements, instruments, documents and certificates identified in Section 4.01 executed and delivered to, or in favor of, the Administrative Agent or any Lender and including all other pledges, powers of attorney, consents, assignments, contracts, notices, legal opinions issued in connection with the other Loan Documents, UCC filings, and any other documents prepared in connection with the other Loan Documents, if any and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Loan Party, or any employee of any Loan Party, and delivered to the Administrative Agent or any Lender in connection with this Agreement or the transactions contemplated hereby. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative. “Loan Guarantor” means each Loan Party. “Loan Guaranty” means Article X of this Agreement. “Loan Parties” means, collectively, Holdings, the Borrower, the Subsidiary Guarantors and any other Person who becomes a party to this Agreement pursuant to a Joinder Agreement and their successors and assigns, and the term “Loan Party” shall mean any one of them or all of them individually, as the context may require. “Loan” means any Initial Term Loan or any Additional Term Loan. “Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations or financial condition of Holdings and its Subsidiaries taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under the Loan Documents to which it is a party, (c) the Collateral, or the Administrative Agent’s Liens (on behalf of itself and other Secured 23
Parties) on the Collateral or the priority of such Liens, or (d) the rights of or benefits available to the Administrative Agent or the Lenders under any of the Loan Documents. “Material Contract” means any contract or other arrangement to which Holdings or any of its Subsidiaries is a party (other than the Loan Documents and the ABL Loan Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect. “Material Domestic Subsidiary” means each Domestic Subsidiary (i) which, as of the most recent fiscal quarter of Holdings, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04(a)), contributed greater than five percent (5%) of Consolidated Adjusted EBITDA for such period or (ii) which contributed greater than five percent (5%) of Consolidated Total Assets as of such date; provided that, if at any time the aggregate amount of Consolidated Adjusted EBITDA or Consolidated Total Assets attributable to all Domestic Subsidiaries that are not Material Domestic Subsidiaries exceeds five percent (5%) of Consolidated Adjusted EBITDA for any such period or five percent (5%) of Consolidated Total Assets as of the end of any such fiscal quarter, the Borrower (or, in the event the Borrower has failed to do so within ten (10) days, the Administrative Agent) shall designate sufficient Domestic Subsidiaries as “Material Domestic Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Domestic Subsidiaries. “Material Indebtedness” means Indebtedness (other than the Loans), or obligations in respect of one or more Swap Agreements (other than Commodity Swap Agreements), of any one or more of Holdings and its Subsidiaries in an aggregate principal amount exceeding $10,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of Holdings or any Subsidiary in respect of any Swap Agreement (other than any Commodity Swap Agreement) at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Holdings or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time. “Maturity Date” means (a) with respect to the Initial Term Loans, the Initial Term Loan Maturity Date, (b) with respect to any Replacement Term Loans, the final maturity date for such Replacement Term Loans, as the case may be, as set forth in the applicable Refinancing Amendment, (c) with respect to any Incremental Facility, the final maturity date set forth in the applicable Incremental Facility Amendment, and (d) with respect to any Extended Term Loans, the final maturity date set forth in the applicable Extension Amendment. “Maximum Rate” has the meaning assigned to such term in Section 9.17. “Moody’s” means Xxxxx’x Investors Service, Inc. “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA. 24
“Net Income” means, for any period, the consolidated net income (or loss) attributable to Holdings and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with Holdings or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary) in which Holdings or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by Holdings or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary. “Net Interest Expense (Income)” means, for any period, an amount (which may be negative) equal to the excess of (x) Interest Expense over (y) total interest income of Holdings and its Subsidiaries for such period, calculated on a consolidated basis for Holdings and its Subsidiaries for such period in accordance with GAAP. “Net Proceeds” means, with respect to any event, (a) the cash proceeds received in respect of such event including (i) any cash received in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but excluding any interest payments), but only as and when received, (ii) in the case of a casualty, insurance proceeds and (iii) in the case of a condemnation or similar event, condemnation awards and similar payments, minus (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty or a condemnation or similar proceeding), the amount of all payments required to be made as a result of such event to repay Indebtedness (other than Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event and (iii) the amount of all Taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to fund contingent liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year and that are directly attributable to such event (as determined reasonably and in good faith by a Financial Officer). “Net Senior Secured Leverage Ratio” means, at any date, the ratio of (a) the excess of (i) the aggregate outstanding principal amount of the Loans and all other Consolidated Total Indebtedness of the Loan Parties on such date that is secured on a pari passu basis by Term Loan Priority Collateral over (ii) the aggregate amount of cash and cash equivalents of the Loan Parties and their Domestic Subsidiaries (except any Excluded Domestic Subsidiary) on such date that is unrestricted and unencumbered (other than Permitted Encumbrances) to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b). “Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(d). “NYFRB” means the Federal Reserve Bank of New York. 25
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day(or for any day that is not a Banking Day, for the immediately preceding Banking Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “Obligated Party” has the meaning assigned to such term in Section 10.02. “Obligation Guaranty” means any Guarantee of all or any portion of the Secured Obligations executed and delivered to the Administrative Agent for the benefit of the Secured Parties by a guarantor who is not a Loan Party. “Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all accrued and unpaid fees (including the Repricing Premium) and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest, expenses and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), obligations and liabilities of any of the Loan Parties to any of the Lenders, the Administrative Agent or any indemnified party, individually or collectively, existing on the Effective Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, arising or incurred under this Agreement or any of the other Loan Documents or in respect of any of the Loans made or reimbursement or other obligations incurred or other instruments at any time evidencing any thereof. “OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury. “Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any indebtedness, liability or obligation under any so-called “synthetic lease” transaction entered into by such Person, or (c) any indebtedness, liability or obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person (other than operating leases). “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan or any Loan Document). “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security 26
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19). “Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate). “Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary. “Participant” has the meaning assigned to such term in Section 9.04(c). “Participant Register” has the meaning assigned to such term in Section 9.04(c). “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions. “Permitted Acquisition” means any Acquisition by any Loan Party (other than Holdings) in a transaction that satisfies each of the following requirements: (a) such Acquisition is not a hostile or contested acquisition; (b) the business acquired in connection with such Acquisition is not engaged, directly or indirectly, in any line of business other than the businesses in which the Loan Parties are engaged on the Effective Date and any business activities that are substantially similar, complementary, related, or incidental thereto; (c) both before and after giving effect to such Acquisition and the Loans (if any) requested to be made in connection therewith, (i) each of the representations and warranties in the Loan Documents is true and correct as of the date of such Acquisition (except any such representation or warranty which relates to a specified prior date, which shall be true and correct as of such prior date) and (ii) no Default exists, will exist, or would result therefrom on the date the relevant Acquisition is consummated, and giving pro forma effect to such Acquisition; (d) other than in connection with any Acquisition for which the total consideration paid or payable (including any earnout or deferred purchase price obligations) is less than $10,000,000, as soon as available, but not less than ten (10) days prior to such Acquisition, the Borrower has provided the Administrative Agent (i) notice of such Acquisition and (ii) a copy of all business and financial information reasonably requested by the Administrative Agent including pro forma financial statements, statements of cash flow, and Availability projections; (e) if such Acquisition is an acquisition of the Equity Interests of a Person, such Acquisition is structured so that the acquired Person shall become a direct or indirect wholly-owned Subsidiary of the Borrower; 27
(f) if such Acquisition is an acquisition of assets located in the United States (or its territories), such Acquisition is structured so that the Borrower or another Subsidiary Guarantor shall acquire such assets; (g) if such Acquisition is an acquisition of Equity Interests, such Acquisition will not result in any violation of Regulation U; (h) if such Acquisition involves a merger or a consolidation involving the Borrower or a Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor, as applicable, shall be the surviving entity; (i) no Loan Party shall, as a result of or in connection with any such Acquisition, assume or incur any direct or contingent liabilities (whether relating to environmental, Tax, litigation, or other matters) that could have a Material Adverse Effect; (j) all actions required to be taken with respect to any newly acquired or formed wholly-owned Subsidiary of the Borrower or a Loan Party, as applicable, required under Section 5.14 shall have been taken; and (k) promptly upon the consummation thereof, the Borrower shall have delivered to the Administrative Agent the final executed material documentation relating to such Acquisition. “Permitted Encumbrances” means: (a) Liens imposed by law for Taxes that are not yet due or (i) the validity or amount thereof is being contested in good faith by appropriate proceedings, (ii) such Loan Party or Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (iii) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect; provided, however, that each Loan Party will, and will cause each Subsidiary to, remit withholding taxes and other payroll taxes to appropriate Governmental Authorities as and when claimed to be due, notwithstanding the foregoing exception. (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than thirty (30) days or (i) the validity or amount thereof is being contested in good faith by appropriate proceedings, (ii) such Loan Party or Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (iii) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect; (c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations; (d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business; 28
(e) judgment Liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII; and (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of Holdings or any Subsidiary; provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, except with respect to clause (e) above. “Permitted Factoring Facility” means any factoring program facility with respect to certain Accounts of the Loan Parties or their Subsidiaries; provided, that the aggregate maximum amount outstanding under all such factoring program facilities shall not be greater than $2,000,000 at any time. “Permitted Investments” means: (a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the U.S. (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the U.S.), in each case maturing within one year from the date of acquisition thereof; (b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Xxxxx’x; (c) investments in certificates of deposit, bankers’ acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the U.S. or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000; (d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and (e) money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Xxxxx’x and (iii) have portfolio assets of at least $5,000,000,000. “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. 29
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA. “Platform” means Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system. “Prepayment Event” means: (a) any sale, transfer or other disposition (including pursuant to a Sale and Leaseback transaction) of any property or asset of any Loan Party (i) other than in the ordinary course of business or otherwise in a manner not permitted under this Agreement or (ii) with respect to which any Loan Party receives Net Proceeds in an amount in excess of $25,000,000; (b) any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of any Loan Party or any Subsidiary with a fair value immediately prior to such event equal to or greater than $25,000,000; or (c) the incurrence by Holdings or any Subsidiary of any Indebtedness, other than Indebtedness (x) permitted under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinance Indebtedness incurred to refinance all or a portion of the Loans pursuant to Section 6.01(f) or Replacement Term Loans incurred to refinance Loans or Additional Term Loans in accordance with the requirements of this Agreement, (B) Incremental Term Loans incurred to refinance all or a portion of the Loans pursuant to Section 2.23 and/or (C) Incremental Equivalent Debt incurred to finance all or a portion of the Loans in accordance with the requirements of Section 6.01(s) or (y) permitted by the Required Lenders pursuant to Section 9.02. “Prime Rate” means the rate of interest per annum publicly announced from time to time by JPMCB as its prime rate in effect at its principal offices in New York City. Each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. “Projections” has the meaning assigned to such term in Section 5.01(f). “Public-Sider” means a Lender whose representatives may trade in securities of the Holdings or its controlling Person or any of its Subsidiaries while in possession of the financial statements provided under the terms of this Agreement. “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant Loan Guaranty or grant of the relevant security interest becomes or would become effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity 30
Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. “Qualified Equity Interest” of any Person means any Equity Interest of such Person that is not Disqualified Equity Interest. “Recipient” means, as applicable, (a) the Administrative Agent and (b) any Lender, or any combination thereof (as the context requires). “Refinance Indebtedness” has the meaning assigned to such term in Section 6.01(f). “Refinancing Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent and the Borrower executed by (a) Holdings, the Borrower and the Subsidiary Guarantors, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion of the Replacement Term Loans being incurred pursuant thereto and in accordance with Section 9.02(f). “Register” has the meaning assigned to such term in Section 9.04(b). “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, partners, members, trustees, employees, agents, administrators, managers, representatives and advisors of such Person and such Person’s Affiliates. “Release” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, disposing or dumping of any substance into the environment. “Replaced Term Loans” has the meaning assigned to such term in Section 9.02(f). “Replacement Term Loans” has the meaning assigned to such term in Section 9.02(f). “Repricing Premium” has the meaning assigned to such term in Section 2.12(c). “Repricing Transaction” means each of (a) the prepayment, repayment, refinancing, substitution, repricing or replacement of all or a portion of the Initial Term Loans substantially concurrently with the incurrence by any Loan Party of any secured term loans (including any Replacement Term Loans) having an Effective Yield that is less than the Effective Yield applicable to the Initial Term Loans so prepaid, repaid, refinanced, substituted, repriced or replaced and (b) any amendment, waiver or other modification to this Agreement that would have the effect of reducing the Effective Yield applicable to the Initial Term Loans; provided that the primary purpose of such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification is to reduce the Effective Yield applicable to the Initial Term Loans; provided, further, that in no event shall any such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification in connection with a Change in Control constitute a Repricing Transaction. 31
“Required Excess Cash Flow Percentage” means, as of any date of determination, (a) if the Total Net Leverage Ratio is greater than or equal to 2.75:1.00, 50%, (b) if the Total Net Leverage Ratio is less than 2.75:1.00 and greater than or equal to 2.25:1.00, 25% and (c) if the Total Net Leverage Ratio is less than 2.25:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies to the determination of the amount of Excess Cash Flow that is required to be applied to prepay the Loans under Section 2.11(b)(i) for any applicable Excess Cash Flow fiscal period, the Total Net Leverage Ratio shall be determined as of the last day of such fiscal year. “Required Lenders” means, at any time, Lenders having Loans or unused Commitments representing more than 50% of the sum of the total Loans and such unused commitments at such time. “Requirement of Law” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation and bylaws or other organizational or governing documents of such Person and (b) any statute, law (including common law), treaty, rule, regulation, code, ordinance, order, decree, writ, judgment, injunction or determination of any arbitrator or court or other Governmental Authority (including Environmental Laws), in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. “Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in Holdings or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in any Loan Party or any option, warrant or other right to acquire any such Equity Interests in any Loan Party. “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business. “Sale and Leaseback Transaction” has the meaning assigned to such term in Section 6.06. “Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria). “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or by the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b). “Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any 32
European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority. “SEC” means the Securities and Exchange Commission of the U.S. “Secured Obligations” means all Obligations, together with all (i) Banking Services Obligations and (ii) Swap Agreement Obligations owing to one or more Lenders or their respective Affiliates; provided, however, that the definition of “Secured Obligations” shall not create any guarantee by any Guarantor of (or grant of security interest by any Guarantor to support, as applicable) any Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any Guarantor. “Secured Parties” means (a) the Administrative Agent, (b) the Lenders, (c) each provider of Banking Services, to the extent the Banking Services Obligations in respect thereof constitute Secured Obligations, (d) each counterparty to any Swap Agreement, to the extent the Swap Agreement Obligations thereunder constitute Secured Obligations, (e) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document, and (f) the successors and assigns of each of the foregoing. “Securities Act” means the Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder. “Security Agreement” means that certain Term Loan Pledge and Security Agreement (including any and all supplements thereto), dated as of the date hereof, among the Loan Parties and the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, and any other pledge or security agreement entered into, after the date of this Agreement by any other Loan Party (as required by this Agreement or any other Loan Document) or any other Person for the benefit of the Administrative Agent and the other Secured Parties, as the same may be amended, restated, supplemented or otherwise modified from time to time. “Specified Indebtedness” means the Indebtedness evidenced by the ABL Credit Agreement, any Subordinated Indebtedness, any Indebtedness incurred pursuant to clauses (j), (q) or (r), of Section 6.01 and, to the extent reflecting a refinancing of any other Indebtedness described above, Indebtedness incurred pursuant to Section 6.01(f). “Statements” has the meaning assigned to such term in Section 2.18(g). “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) established by the Board to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D of the Board. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D of the Board or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage. 33
“Subordinated Indebtedness” of a Person means any Indebtedness of such Person the payment of which is subordinated to payment of the Secured Obligations to the written satisfaction of the Administrative Agent. “Subordinated Lien Indebtedness” means any Indebtedness that is secured by a security interest on the Collateral (other than Indebtedness under the ABL Loan Documents) which security interest has been made expressly junior or subordinated to the Lien securing the Obligations. “subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. “Subsidiary” means any direct or indirect subsidiary of Holdings or a Loan Party, as applicable. “Subsidiary Guarantor” means each Material Domestic Subsidiary (except any Excluded Domestic Subsidiary (other than a Domestic Subsidiary Holding Company)) that is a party to the Loan Guaranty. The Subsidiary Guarantors on the Effective Date are identified as such in Schedule 3.15 hereto. “Swap Agreement” means any agreement with respect to any swap, forward, spot, future, credit default or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of Holdings or the Subsidiaries shall be a Swap Agreement. “Swap Agreement Obligations” means any and all obligations of the Loan Parties and their Subsidiaries, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction. “Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of 34
section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder. “Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), value added taxes, or any other goods and services, use or sales taxes, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Term Commitment” means any Initial Term Commitment and any Additional Term Loan Commitment. “Term Loan Priority Collateral” has the meaning set forth in the Intercreditor Agreement. “Test Period” means, on any date, the most recent four fiscal quarter period ending on or prior to such date for which financial statements were required to have been delivered pursuant to Section 5.01(a) or (b). “Total Net Leverage Ratio” means, at any date, the ratio of (a) the excess of (i) Consolidated Total Indebtedness of the Loan Parties on such date over (ii) the aggregate amount of cash and cash equivalents of the Loan Parties and their Domestic Subsidiaries (except any Excluded Domestic Subsidiary) on such date that is unrestricted and unencumbered (other than Permitted Encumbrances) to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b). “Transactions” means the execution, delivery and performance by the Loan Parties of (i) this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions, the use of the proceeds thereof, (ii) the Effective Date Debt Repayments and (iii) the ABL Credit Agreement and the other ABL Loan Documents, the borrowing of loans and other credit extensions thereunder and the use of the proceeds thereof. “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate. “UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or in any other state the laws of which are required to be applied in connection with the issue of perfection of security interests. “Unfinanced Capital Expenditures” means, for any period, Capital Expenditures made during such period which are not financed from the proceeds of any Indebtedness (other than the ABL Loans; it being understood and agreed that, to the extent any Capital Expenditures are financed with ABL Loans, such Capital Expenditures shall be deemed Unfinanced Capital Expenditures). “Unliquidated Obligations” means, at any time, any Secured Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any Secured 35
Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. (b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone or through Electronic System, if arrangements for doing so have been approved by the Administrative Agent, by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery, Electronic System or facsimile to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower. Notwithstanding any contrary provision herein, this Section shall not be construed to permit the Borrower to elect an Interest Period for Eurodollar Loans that does not comply with Section 2.02(d). (c) Each telephonic and written Interest Election Request (including requests submitted through Electronic System) shall specify the following information in compliance with Section 2.02: (i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing); (ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day; (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”. If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. (d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing. (e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be 41
Indebtedness of Holdings, the Borrower or its Subsidiaries (other than Indebtedness in respect of any revolving credit facility)) prior to such date, plus (2) except to the extent deducted in the calculation of Excess Cash Flow, the amount of any reduction in the outstanding amount of any Loans resulting from any assignment made in accordance with any Dutch Auction prior to such date, in an amount equal to the lesser of the actual amount of cash paid in connection with the relevant assignment and the applicable reduction; (ii) In the event and on each occasion that any Net Proceeds in respect of any Prepayment Event set forth in clause (a) or (b) of the definition thereof are received by or on behalf of Holdings or any other Loan Party or any Subsidiary in respect of any Prepayment Event, the Borrower shall, promptly after such Net Proceeds are received by Holdings or any other Loan Party or Subsidiary, apply an amount equal to 100% of such Net Proceeds (the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (v) below; provided that to the extent such Subject Proceeds constitute proceeds of ABL Priority Collateral and so long as the ABL Obligations remain subject to the Intercreditor Agreement, then such Subject Proceeds shall be applied first to prepay in full the ABL Obligations, with any excess to be applied as set forth above; provided further that, (A) if the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Loan Parties intend to apply the Subject Proceeds from such event (or a portion thereof specified in such certificate), within 180 days after receipt of such Subject Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets to be used in the business of the Loan Parties, and certifying that no Default has occurred and is continuing, then either (i) so long as no Default has occurred and is continuing, no prepayment shall be required pursuant to this paragraph in respect of the Subject Proceeds specified in such certificate, it being understood that to the extent of any such Subject Proceeds therefrom that have not been so applied (or commited in writing to be applied) by the end of such 180-day period, a prepayment shall be required at such time in an amount equal to such Subject Proceeds that have not been so applied or (B) if, at the time that any such prepayment would be required hereunder, Holdings or any of its Subsidiaries is required to repay or repurchase any other Indebtedness (or offer to repay or repurchase any Indebtedness) that is secured on a pari passu basis with any Secured Obligation pursuant to the terms of the documentation governing such Indebtedness with the Subject Proceeds (such Indebtedness required to be so repaid or repurchased (or offered to be repaid or repurchased), the “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is extended with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject 44
Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof. (iii) In the event that Holdings or any of its Subsidiaries receives Net Proceeds in respect of any Prepayment Event set forth in clause (c) of the definition thereof, the Borrower shall, substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Borrower or its applicable Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Loans in accordance with clause (v) below. (iv) Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower; provided that for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinance Indebtedness incurred to refinance all or a portion of the Loans pursuant to Section 6.01(f), (x) Incremental Term Loans incurred to refinance all or a portion of the Loans pursuant to Section 2.23, (y) Replacement Term Loans incurred to refinance all or any portion of the Loans in accordance with the requirements of Section 9.02(f) and/or (z) Incremental Equivalent Debt incurred to finance all or a portion of the Loans in accordance with the requirements of Section 6.01(s). If any Term Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Term Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Loans. (v) Except to the extent less than pro rata treatment with the Initial Term Loans is provided for in any Refinancing Amendment, any Incremental Facility Amendment or any Extension Amendment, each prepayment of Loans pursuant to Section 2.11(b) shall be applied ratably to each Class of Loans then outstanding (provided that any prepayment of Loans with the Net Proceeds of any Refinance Indebtedness, Incremental Term Facility or Replacement Term Loans shall be applied to the applicable Class of Loans being refinanced or replaced). With respect to each Class of Loans, all accepted prepayments under Section 2.11(b) shall be applied on a pro rata basis against all remaining scheduled installments of principal due in respect of such Loans payable pursuant to Section 2.10, and each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentage of the applicable Class. The amount of such mandatory prepayments shall be applied within each Class first to the then outstanding Loans that are ABR Loans and then to the then outstanding Loans that are Eurodollar Rate 45
respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Loan Party by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to such Lender from any other source against any amount due to the Administrative Agent under this paragraph (e). (f) Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.17(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person, (A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), an executed IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax; 51
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an executed IRS Form W-8BEN or IRS Form W- 8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) in the case of a Foreign Lender claiming that its extension of credit will generate U.S. effectively connected income, an executed IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) an executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or (4) to the extent a Foreign Lender is not the Beneficial Owner, an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-2 or Exhibit C-3, IRS Form W-9, and/or other certification documents from each Beneficial Owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit C-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and 52
(c) At the election of the Administrative Agent, all payments of principal, interest, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees, costs and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of the Borrower maintained with the Administrative Agent. (d) If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans of any Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and accrued interest thereon than the proportion received by any other similarly situated Lender with Loans of such Class, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of such Class of other Lenders of such Class to the extent necessary so that the benefit of all such payments shall be shared by all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans of such Class; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to Holdings or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (f) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paid and/or (ii) hold any such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash 55
(vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Loans (without giving effect to any prepayments thereof), (viii) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing tranche of Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with or subordinated to any then-existing tranche of Loans in right of payment or security and documented in a separate agreement, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral, (ix) (A) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Loans shall be made on a pro rata basis with such existing Loans and (B) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are subordinated in right of payment or security with any existing Loans shall be made on a junior basis with respect to such existing Loans, except that the Borrower and the lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (x) subject to Section 2.23(f), no Event of Default shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Facility, (xi) the proceeds of any Incremental Facility may be used for working capital and other general corporate purposes (including Acquisitions, investments and Restricted Payments) and any other use not prohibited by this Agreement, and (xii) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Eurodollar Loans of the relevant Class and which end on the last day of such Interest Period. (b) Incremental Commitments may be provided by any existing Lender (in its sole discretion), or by any other Eligible Assignee (other than an Ineligible Institution) (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.04(b) for an assignment of Loans to such Additional Lender. 59
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders holding Loans of any Class, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Loans of such Class) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate transactions with any individual Lender who accepts the terms contained in the relevant Extension Offer to extend the Maturity Date of such Lender’s Loans of such Class and otherwise modify the terms of such Loans pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans (and related outstandings) and/or modifying the amortization schedule, if any, in respect of such Loans) (each, an “Extension”, and each group of Loans, in each case as so extended, and the original Loans (in each case not so extended), being a “tranche”); it being understood that any Extended Term Loans shall constitute a separate tranche of Loans from the tranche of Loans from which they were converted, so long as the following terms are satisfied: (i) except as to (A) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (ii), (iii) and (iv), be determined by the Borrower and any Lender who agrees to an Extension of its Loans and set forth in the relevant Extension Offer) and (B) any covenants or other provisions applicable only to periods after the Latest Maturity Date (in each case, as of the date of such Extension), the Loans of any Lender extended pursuant to any Extension (any such extended Loans, the “Extended Term Loans”) shall have the same terms (or terms not less favorable to existing Lenders) as the tranche of Loans subject to the relevant Extension Offer; provided, however, that any representations and warranties, affirmative and negative covenants (including financial covenants) and events of default applicable to such tranche of Extended Term Loans that also expressly apply to (and for the benefit of) the tranche of Loans subject to the Extension Offer and each other Class of Loans hereunder may be more favorable to the lenders of the applicable tranche of Extended Term Loans than those originally applicable to the tranche of Loans subject to the Extension Offer; (ii) the final Maturity Date of any Extended Term Loans may be no earlier than the then applicable Latest Maturity Date at the time of Extension; (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then- existing Loans; (iv) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments (but, for purposes of clarity, not scheduled amortization payments) in respect of the Loans, in each case as specified in the relevant Extension Offer; (v) if the aggregate principal amount of Loans in respect of which Lenders have accepted the relevant Extension Offer exceed the maximum aggregate principal amount of Loans offered to be extended by the Borrower pursuant to such Extension Offer, then the Loans of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed the 61
applicable Lender’s actual holdings of record) with respect to which such Lenders have accepted such Extension Offer; (vi) unless the Administrative Agent otherwise agrees, any Extension must be in a minimum amount of $5,000,000; (vii) any applicable Minimum Extension Condition must be satisfied or waived by the Borrower; and (viii) any documentation in respect of any Extension shall be consistent with the foregoing. (b) (i) No Extension consummated in reliance on this Section 2.24, shall constitute a voluntary or mandatory prepayment for purposes of Section 2.11, (ii) the scheduled amortization payments (insofar as such schedule affects payments due to Lenders participating in the relevant Class) set forth in Section 2.10 shall be adjusted to give effect to any Extension of any Class of Loans and/or Commitments and (iii) except as set forth in clause (a)(vi) above, no Extension Offer is required to be in any minimum amount or any minimum increment; provided that the Borrower may, at its election, specify as a condition (a “Minimum Extension Condition”) to the consummation of any Extension that a minimum amount (to be specified in the relevant Extension Offer in the Borrower’s sole discretion) of Loans of any or all applicable tranches be tendered; it being understood that the Borrower may, in its sole discretion, waive any such Minimum Extension Condition. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.24 (including, for the avoidance of doubt, the payment of any interest, fees or premium in respect of any Extended Term Loans on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Sections 2.10, 2.11 or 2.18) or any other Loan Document that may otherwise prohibit any Extension or any other transaction contemplated by this Section. (c) No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans of any Class (or a portion thereof). All Extended Term Loans and all obligations in respect thereof shall constitute Secured Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Secured Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Extension Amendment and any amendments to any of the other Loan Documents with the Loan Parties as may be necessary in order to establish new Classes or sub-Classes in respect of Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.24. (d) In connection with any Extension, the Borrower shall provide the Administrative Agent at least five Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the 62
authorized by the Borrower to transfer the proceeds of any Borrowings requested or authorized pursuant to this Agreement. (j) [Reserved]. (k) [Reserved]. (l) Solvency. The Administrative Agent shall have received a solvency certificate signed by a Financial Officer dated the Effective Date. (m) [Reserved]. (n) [Reserved]. (o) Pledged Equity Interests; Stock Powers; Pledged Notes. The Administrative Agent shall have received originals of (i) the certificates representing the Equity Interests pledged pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and (ii) each promissory note (if any) pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof. (p) Filings, Registrations and Recordings. Each document (including any Uniform Commercial Code financing statement) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of itself, the Lenders and the other Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 6.02), shall be in proper form for filing, registration and/or recordation. (q) Approvals. All governmental and third party approvals necessary in connection with the financing contemplated hereby and the continuing operations of Holdings and its Subsidiaries (including shareholder approvals, if any) shall have been obtained on satisfactory terms and shall be in full force and effect. (r) Insurance. The Administrative Agent shall have received evidence of insurance coverage in form, scope, and substance reasonably satisfactory to the Administrative Agent and otherwise in compliance with the terms of Section 5.10 hereof and the other Loan Documents. (s) [Reserved]. (t) Tax Withholding. The Administrative Agent shall have received a properly completed and signed IRS Form W-8 or W-9, as applicable, for each Loan Party. (u) Corporate Structure. The corporate structure, capital structure and other 70
Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties, with the Lenders that: SECTION 5.01. Financial Statements and Other Information. The Borrower will furnish or caused to be furnished to the Administrative Agent and each Lender: (a) within ninety (90) days after the end of each fiscal year of Holdings, its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by independent public accountants of recognized national standing (without a “going concern” or like qualification (other than any such qualification with respect to the Obligations being treated as short-term indebtedness resulting solely from the Maturity Date occurring one year from the time such opinion is delivered), commentary or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, provided, that the Borrower shall be deemed to have delivered the foregoing to the Administrative Agent and the Lenders if such information has been filed with the SEC and is available on the XXXXX site at xxx.xxx.xxx or any successor government site that is freely and readily available to the Administrative Agent and the Lenders without charge, or has been made freely and readily available to the Administrative Agent and the Lenders without charge on Holdings’ website xxx.xxxxxxxxxxx.xxx, and the delivery date therefor shall be deemed to be the first day on which such information is available to the Administrative Agent and the Lenders on one of such web pages; (b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of Holdings, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided, that the Borrower shall be deemed to have delivered the foregoing to the Administrative Agent and the Lenders if such information has been filed with the SEC and is available on the XXXXX site at xxx.xxx.xxx or any successor government site that is freely and readily available to the Administrative Agent and the Lenders without charge, or has been made freely and readily available to the Administrative Agent and the Lenders without charge on Holdings’ website xxx.xxxxxxxxxxx.xxx, and the delivery date therefor shall be deemed to be the first day on which such information is available to the Administrative Agent and the Lenders on one of 72
such web pages; (c) promptly following delivery thereof, a copy of each Borrowing Base Certificate (as defined in the ABL Credit Agreement) that is furnished to the ABL Administrative Agent pursuant to the ABL Credit Agreement; provided that the Borrower shall be required to furnish or cause to be furnished a copy of such Borrowing Base Certificate solely to the Administrative Agent; (d) no later than seven (7) Business Days after any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer in substantially the form of Exhibit D (i) certifying, in the case of the financial statements delivered under clause (b), as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth reasonably detailed calculations of the Total Net Leverage Ratio, (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, and (v) certifying if any Subsidiaries have, as of the delivery of the last the last certificate under this clause (d), qualified independently as, or are being designated by the Borrower to become, Material Domestic Subsidiaries; (e) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines); (f) as soon as available but in any event no later than sixty (60) days after the end of each fiscal year of Holdings, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and cash flow statement) of Holdings for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to the Administrative Agent; (g) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and 73
agreements entered into in connection with any prior Indebtedness that was repaid on or prior to the Effective Date; (b) within ninety (90) days of the Effective Date (as such period may be extended by the Administrative Agent in its sole discretion), the Loan Parties shall deliver or cause to be delivered to the Administrative Agent each Deposit Account Control Agreement (as defined in the Security Agreement) required to be provided pursuant to Sections 4.14 and 7.1 of the Security Agreement; (c) within forty-five (45) days of the Effective Date (as such period may be extended by the Administrative Agent in its sole discretion), the Loan Parties shall deliver or cause to be delivered to the Administrative Agent each insurance endorsement and any other certificates, instruments, documents or other agreements with respect to the Loan Parties insurance policies required to be provided pursuant to Section 4.12 of the Security Agreement; and (d) within five (5) Business Days of the Effective Date (as such period may be extended by the Administrative Agent in its sole discretion), the Loan Parties shall deliver or cause to be delivered to the Administrative Agent evidence of the termination and release (and, where applicable, evidence of the filings of such termination and release) of all mortgages, leasehold mortgages, deeds of trust and any other similar document or agreement encumbering any of the leasehold real property or real property owned in fee by any Loan Party, in each case in a form and manner reasonably satisfactory to the Administrative Agent. ARTICLE VI Negative Covenants Until the Commitments shall have expired or been terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable under any Loan Document shall have been paid in full, each Loan Party executing this Agreement covenants and agrees, jointly and severally with all of the other Loan Parties, with the Lenders that: SECTION 6.01. Indebtedness. No Loan Party will, nor will it permit any Subsidiary to, create, incur, assume or suffer to exist any Indebtedness, except: (a) the Secured Obligations (including Indebtedness created pursuant to Section 2.23, Section 2.24 and Section 9.02(f)); (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and any extensions, renewals, refinancings and replacements of any such Indebtedness in accordance with clause (f) hereof; (c) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary, provided that (i) Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any other Loan Party shall be subject to Section 6.04 and (ii) Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Secured Obligations on terms reasonably satisfactory to the Administrative Agent; 79
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, provided that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01, (ii) Guarantees by the Borrower or any other Loan Party of Indebtedness of any Subsidiary that is not a Loan Party shall be subject to Section 6.04 and (iii) Guarantees permitted under this clause (d) shall be subordinated to the Secured Obligations on the same terms as the Indebtedness so Guaranteed is subordinated to the Secured Obligations; (e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets (whether or not constituting purchase money Indebtedness), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness in accordance with clause (f) below; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (e) together with any Refinance Indebtedness in respect thereof permitted by clause (f) below, shall not exceed $50,000,000 at any time outstanding; (f) Indebtedness which represents extensions, renewals, refinancing or replacements (such Indebtedness being so extended, renewed, refinanced or replaced being referred to herein as the “Refinance Indebtedness”) of any of the Indebtedness described in clauses (a), (b), (e), (i), (j), (k), (n), (o), (q) or (s) hereof (such Indebtedness being referred to herein as the “Original Indebtedness”); provided that (i) such Refinance Indebtedness does not increase the principal amount or interest rate of the Original Indebtedness, (ii) any Liens securing such Refinance Indebtedness are not extended to any additional property of any Loan Party or any Subsidiary, (iii) no Loan Party or any Subsidiary that is not originally obligated with respect to repayment of such Original Indebtedness is required to become obligated with respect to such Refinance Indebtedness, (iv) such Refinance Indebtedness does not result in a shortening of the average weighted maturity of such Original Indebtedness, (v) the terms of such Refinance Indebtedness other than fees and interests are not less favorable to the obligor thereunder than the original terms of such Original Indebtedness, (vi) if such Original Indebtedness was subordinated in right of payment to the Secured Obligations, then the terms and conditions of such Refinance Indebtedness must include subordination terms and conditions that are at least as favorable to the Administrative Agent and the Lenders as those that were applicable to such Original Indebtedness; and (vii) in the case of Refinance Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, such Indebtedness shall comply with the provisions set forth in Section 9.02(f); (g) Indebtedness owed to (i) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business and (ii) any participant in a self-insured health and welfare plan maintained by any Loan Party or Subsidiary, as a result of claims for benefits; (h) Indebtedness of any Loan Party in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business; 80
(i) Subordinated Indebtedness in an aggregate principal amount not exceeding $50,000,000 at any time outstanding; (j) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) the aggregate principal amount of Indebtedness permitted by this clause (j), together with any Refinance Indebtedness in respect thereof permitted by clause (f) above, shall not exceed $50,000,000 at any time outstanding; (k) unsecured Indebtedness consisting of seller debt or notes, bona fide purchase price adjustments, indemnifications, earnouts or other similar obligations in connection with any Acquisition or disposition of a line of business or Subsidiary permitted hereunder; (l) Swap Agreements permitted in accordance with Section 6.07; (m) Indebtedness in connection with overdraft protection arrangements with financial institutions in respect of disbursement accounts of Borrower or its Subsidiaries maintained in the ordinary course of business, so long as the aggregate principal amount thereof does not at any time exceed $15,000,000; (n) Indebtedness of Foreign Subsidiaries and other Subsidiaries that are not Material Domestic Subsidiaries owed to a Person that is not an Affiliate with any Loan Party, so long as the aggregate principal amount thereof does not at any time exceed the dollar equivalent of $25,000,000; provided, that no Loan Party may Guarantee or have any other obligation under such Indebtedness; (o) Indebtedness under the ABL Credit Agreement outstanding on the Effective Date after giving effect to the Transactions, together with any extension, renewal, increase or “Replacement ABL Credit Agreement” (as defined in the Intercreditor Agreement) thereof not prohibited by the Intercreditor Agreement not to exceed an amount equal to the greater of (x) $400,000,000 and (y) the sum of 85% of Eligible Accounts (as defined in the ABL Credit Agreement or any equivalent provision under any Replacement ABL Credit Agreement) of the Loan Parties plus the product of up to 85% multiplied by the Net Orderly Liquidation Value (as defined in the ABL Credit Agreement or any equivalent provision under any Replacement ABL Credit Agreement) percentage identified in the most recent Inventory appraisal ordered by the ABL Agent multiplied by the Value (as defined in the ABL Credit Agreement or any equivalent provision under any Replacement ABL Credit Agreement) of the Loan Parties' Eligible Inventory (as defined in the ABL Credit Agreement or any equivalent provision under any Replacement ABL Credit Agreement); (p) Indebtedness of Holdings and its Subsidiaries consisting of the financing of insurance premiums in the ordinary course of business; (q) Indebtedness under any Permitted Factoring Facility; provided, that the aggregate principal amount of Indebtedness outstanding under all such Permitted Factoring Facilities shall 81
replacements thereof that do not increase the outstanding principal amount thereof; (d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any Subsidiary; provided that (i) such Liens secure Indebtedness permitted by clause (e) of Section 6.01, (ii) such Liens and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, and (iii) such Liens shall not apply to any other property or assets of the Borrower or any Subsidiary; (e) any Lien existing on any property or asset (other than Accounts and Inventory) prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset (other than Accounts and Inventory) of any Person that becomes a Loan Party after the date hereof prior to the time such Person becomes a Loan Party; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Loan Party, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Loan Party and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Loan Party, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof; (f) Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the UCC in effect in the relevant jurisdiction covering only the items being collected upon; (g) Liens arising out of Sale and Leaseback Transactions permitted by Section 6.06; (h) Liens granted by a Subsidiary that is not a Loan Party in favor of the Borrower or another Loan Party in respect of Indebtedness owed by such Subsidiary; (i) License Agreements entered into by any Loan Party or their Subsidiaries as of the date hereof as in effect on the date hereof and licenses with respect to Intellectual Property (including amendments and other modifications to existing License Agreements) to the extent permitted under Section 6.05(i); (j) Liens solely on any xxxx xxxxxxx money deposits and cash advances made by a Loan Party or any of its Subsidiaries in connection with any letter of intent of an acquisition or purchase agreement permitted hereunder; (k) Liens arising from (i) precautionary UCC financing statements, including in respect of any operating lease or disposition permitted by this Agreement and (ii) Equipment or other assets not owned by any Loan Party or Subsidiary located on the premises of such Loan Party or Subsidiary (but not in connection with, or as part of, the financing thereof) from time to time in the ordinary course of business and consistent with current practices of such Loan Party or Subsidiary and the precautionary UCC financing statement filings in respect thereof; 83
(c) investments by Holdings in the Borrower and by the Borrower and the Subsidiaries in Equity Interests in their respective Subsidiaries, provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Security Agreement (subject to the limitations applicable to Equity Interests of a Foreign Subsidiary referred to in Section 5.14) and (B) the aggregate amount of investments by Loan Parties in Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $25,000,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs); (d) loans or advances made by any Loan Party to any Subsidiary and made by any Subsidiary to a Loan Party or any other Subsidiary, provided that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the Security Agreement and (B) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $25,000,000 at any time outstanding (in each case determined without regard to any write-downs or write- offs); (e) Guarantees constituting Indebtedness permitted by Section 6.01, provided that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party (together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (B) to the proviso to Section 6.04(d)) shall not exceed $25,000,000 at any time outstanding (in each case determined without regard to any write- downs or write-offs); (f) loans or advances made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $2,500,000 in the aggregate at any one time outstanding; (g) notes payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect to settlement of such Account Debtor’s Accounts in the ordinary course of business, consistent with past practices; (h) investments in the form of Swap Agreements permitted by Section 6.07; (i) investments of any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with the Borrower or any of the Subsidiaries (including in connection with a Permitted Acquisition) so long as such investments were not made in contemplation of such Person becoming a Subsidiary or of such merger; (j) investments received in connection with the disposition of assets permitted by Section 6.05; 86
(b) sales, transfers and dispositions of assets to the Borrower or any Subsidiary, provided that any such sales, transfers or dispositions involving a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09; (c) sales, transfers and dispositions of Accounts in the ordinary course of business in connection with the compromise, settlement or collection thereof; (d) sales, transfers and dispositions constituting an investment permitted by Section 6.04; (e) Sale and Leaseback Transactions permitted by Section 6.06; (f) dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Holdings or any Subsidiary; (g) sales, transfers and other dispositions of assets that are not permitted by any other clause of this Section; provided that both immediately before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and the aggregate fair market value of all assets sold, transferred or otherwise disposed of since the Effective Date in reliance upon this clause (g) shall not exceed $25,000,000 in the aggregate; provided further that, so long as no Default or Event of Default has occurred and is continuing or after giving effect to such transaction, in addition to the foregoing, the Loan Parties and their Subsidiaries may make unlimited sales, transfers, leases or dispositions of assets so long as after giving effect to such disposition the Total Net Leverage Ratio, calculated on a pro forma basis, would not exceed 1.50:1.00; (h) Restricted Payments permitted by Section 6.08, transactions permitted by Section 6.03 and Liens permitted by Section 6.02; (i) the non-exclusive licensing or sublicensing of Intellectual Property rights in the ordinary course of business; (j) the abandonment or cancellation of intellectual property, in the reasonable judgment of the Borrower, that is no longer used or useful in any material respect in the business of Holdings and its Subsidiaries, taken as a whole; (k) dispositions of investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (l) dispositions of cash and cash equivalents in the ordinary course of business for consideration consisting of cash or cash equivalents; (m) any surrender or waiver of contract rights or settlement, release or surrender of contract, tort or other litigation claims in the ordinary course of business; 88
under their estates) of Holdings or any of its Subsidiaries upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate consideration paid for all such redemptions and payments shall not exceed, in any fiscal year, $5,000,000 (in each case, with unused amounts in any fiscal year being carried over to the next succeeding fiscal year); (iv) Restricted Payments to Holdings to pay corporate and overhead expense attributable to the preservation of their existence (including expenses relating to Holdings’ continuing operation as a public company) or ownership of the Borrower and its Subsidiaries in the ordinary course of business; (v) to the extent constituting Restricted Payments, Holdings and any of its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Sections 6.03, 6.04 or 6.09; (vi) the Borrower may make Restricted Payments or make distributions to Holdings, to allow Holdings to make regularly scheduled quarterly dividend payments to its shareholders in an amount not to exceed the greater of (x) $10,000,000 during any Test Period after giving pro forma effect to such quarterly dividend or (y) $0.21 per issued share of common stock of Holdings that is outstanding on the date such quarterly dividend is made, (vii) so long as no Default or Event of Default has occurred and is continuing after giving pro forma effect thereto, other Restricted Payments made after the Effective Date by Holdings and/or any of its Subsidiaries in an aggregate outstanding amount not to exceed the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vii); (viii) Holdings and/or any of its Subsidiaries may make additional Restricted Payments so long as (i) the Total Net Leverage Ratio, calculated on a pro forma basis, would not exceed 1.50:1.00 and (ii) no Default or Event of Default has occurred and is continuing after giving pro forma effect to such Restricted Payment; and (ix) the Borrower may make Restricted Payments or make distributions to Holdings, to allow Holdings to pay Taxes arising from the operations of Borrower and its Subsidiaries. (b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any (x) Subordinated Lien Indebtedness or (y) Subordinated Indebtedness (the Indebtedness described in clauses (x) and (y), the “Restricted Debt”) or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Debt prior to the scheduled maturity (collectively, “Restricted Debt Payments”), except: (i) payments as part of an applicable high yield discount obligation catch-up payment; (ii) payment of regularly scheduled interest and principal payments as and when due in respect of any Indebtedness permitted under Section 6.01, other than payments in respect of the Subordinated Indebtedness prohibited by the subordination provisions thereof; (iii) refinancings of Indebtedness to the extent permitted by Section 6.01; (iv) payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by the terms of Section 6.05 and other mandatory prepayments of ABL Obligations in each case not prohibited by Intercreditor Agreement: 90
the Borrower, its books and records, deposit accounts of Holdings, all cash deposits held therein, and cash paid to Holdings in accordance with the terms hereof, (y) incur no Indebtedness for borrowed money other than guarantees of Indebtedness of the Borrower and Subsidiaries permitted hereunder and (z) grant no Lien on any of its assets other than Liens created pursuant to the Loan Documents and the ABL Loan Documents and ordinary course Liens incurred under customary deposit account agreements entered into by Holdings with respect to deposit accounts. ARTICLE VII Events of Default If any of the following events (“Events of Default”) shall occur: (a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise; (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three (3) Business Days; (c) any representation or warranty made or deemed made by or on behalf of any Loan Party or any Subsidiary in, or in connection with, this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially incorrect when made or deemed made; (d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Sections 5.01, 5.02(a), 5.03 (with respect to a Loan Party’s existence), 5.07, 5.08, or 5.15 or in Article VI; (e) any Loan Party shall fail to observe or perform any covenant, condition or agree- ment contained in this Agreement (other than those which constitute a default under another Section of this Article), and such failure shall continue unremedied for a period of (i) five (5) days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent (which notice will be given at the request of any Lender) if such breach relates to terms or provisions of Sections 5.02 (other than Section 5.02(a)), 5.03 (other than with respect to a Loan Party’s existence) through 5.06, 5.10, 5.11 or 5.13 of this Agreement or (ii) 30 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent (which notice will be given at the request of any Lender) if such breach relates to terms or provisions of any other Section of this Agreement; (f) any Loan Party or Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the 93
same shall become due and payable; (g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by Section 6.05; provided, further, that the Loan Parties’ failure to perform or observe the fixed charge coverage ratio financial covenant under Section 6.12 of the ABL Credit Agreement shall not constitute an Event of Default unless and until (x) the “Required Lenders” under and as defined in the ABL Credit Agreement have declared all obligations under the ABL Loan Documents to be immediately due and payable and such declaration has not been rescinded or (y) such failure with respect to the fixed charge coverage ratio financial covenant remains unwaived by the “Required Lenders” under and as defined in the ABL Credit Agreement for a period of more than 180 consecutive calendar days; (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of a Loan Party or Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered; (i) any Loan Party or Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Loan Party or Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing; (j) any Loan Party or Subsidiary shall become unable, admit in writing its inability, or publicly declare its intention not to, or fail generally to pay its debts as they become due; (k) (i) one or more judgments for the payment of money in an aggregate amount in excess of $10,000,000 shall be rendered against any Loan Party, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party or Subsidiary to enforce any such judgment; or (ii) any Loan Party or Subsidiary shall fail within thirty (30) days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, 94
could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued; (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; (m) a Change in Control shall occur; (n) the occurrence of any “default”, as defined in any Loan Document (other than this Agreement), or the breach of any of the terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace therein provided; (o) the Loan Guaranty or any Obligation Guaranty shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of the Loan Guaranty or any Obligation Guaranty or any Loan Guarantor shall fail to comply with any of the terms or provisions of the Loan Guaranty or any Obligation Guaranty to which it is a party, or any Loan Guarantor shall deny that it has any further liability under the Loan Guaranty or any Obligation Guaranty to which it is a party, or shall give notice to such effect, including, but not limited to notice of termination delivered pursuant to Section 10.08 or any notice of termination delivered pursuant to the terms of any Obligation Guaranty; (p) except as permitted by the terms of any Collateral Document or required by terms of the Intercreditor Agreement, (i) any Collateral Document shall for any reason fail to create a valid security interest in any Collateral (with respect to Collateral having an aggregate book value in excess of $5,000,000) purported to be covered thereby, or (ii) any Lien (with respect to Collateral having an aggregate book value in excess of $5,000,000) securing any Secured Obligation shall cease to be a perfected, first priority Lien; (q) any Collateral Document shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of any Collateral Document; or (r) any material provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or any Loan Party shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction that evidences its assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms); then, and in every such event (other than an event with respect to any Loan Party described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, whereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, but ratably as among the Classes of Loans and the Loans of each Class at the time outstanding, in which case any principal 95
and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent. SECTION 8.06. Resignation. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by its successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor, unless otherwise agreed by the Borrower and such successor. Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders and the Borrower, whereupon, on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, provided that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Collateral Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no duly or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative Agent shall also directly be given or made to each Lender. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article, Section 2.17(d) and Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent and in respect of the matters referred to in the proviso under clause (a) above. 98
(c) In case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim under Sections 2.12, 2.13, 2.15, 2.16, 2.17 and 9.03) allowed in such judicial proceeding; and (ii) collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.03). (d) The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other applicable jurisdictions, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition 100
(i) if to any Loan Party, to the Borrower at: Global Brass and Copper, Inc. 000 X. Xxxxxxxxxx Xx., Xxxxx 0000 Xxxxxxxxxx, XX 00000 Attention: Chief Financial Officer Facsimile No: (000) 000-0000 (ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A. at: JPMorgan Chase Bank, N.A 00 Xxxxx Xxxxxxxx Xx. Xxxxx X0 Xxxxxxx, XX 00000 Attention: Xxxx Xxxxxx Facsimile No: (000) 000-0000 (iii) if to any other Lender, to it at its address or facsimile number set forth in its Administrative Questionnaire. All such notices and other communications (i) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received, (ii) sent by facsimile shall be deemed to have been given when sent, provided that if not given during normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business Day of the recipient, or (iii) delivered through Electronic Systems to the extent provided in paragraph (b) below shall be effective as provided in such paragraph. (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by Electronic Systems pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II or to compliance and no Default certificates delivered pursuant to Section 5.01(d) unless otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative Agent and the Borrower (on behalf of the Loan Parties) may, in its discretion, agree to accept notices and other communications to it hereunder by Electronic Systems pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise proscribes, all such notices and other communications (i) sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if not given during the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business on the next Business Day for the recipient, and (ii) posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, e-mail or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day of the recipient. 102
the Required Lenders or (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender (including any such Lender that is a Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or reduce the rate of interest thereon, or reduce or forgive any interest, fees or any other Obligation payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iii) postpone any scheduled date of payment of the principal amount of any Loan, or any date for the payment of any interest, fees or other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.18(b) or (d) in a manner that would alter the manner in which payments are shared, without the written consent of each Lender (other than any Defaulting Lender), (v) [reserved], (vi) change any of the provisions of this Section or the definition of “Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vii) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (viii) release any Guarantor from its obligation under its Loan Guaranty or Obligation Guaranty (except as otherwise permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (ix) except as provided in clause (c) of this Section or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender (other than any Defaulting Lender), or (x) permit the Borrower to assign or otherwise transfer any of its rights or obligations hereunder without the written consent of each Lender (other than any Defaulting Lender); provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent (it being understood that any amendment to Section 2.20 shall require the consent of the Administrative Agent. The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04. The Administrative Agent and the Borrower may amend, restate, amend and restate or otherwise modify the Intercreditor Agreement and/or any other intercreditor agreement, as provided therein, in connection with a transaction permitted hereunder. (c) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the termination of all of the Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to each affected Lender, (ii) constituting property being sold or disposed (including, without limitation pursuant to pursuant to a Permitted Factoring Facility) of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interests of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty or Obligation Guaranty provided by such Subsidiary, (iii) constituting property 104
leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII, (v) upon the release of a Subsidiary Guarantor that is no longer a Material Subsidiary or (vi) constituting ABL Priority Collateral that is released, sold or disposed of pursuant to the terms of ABL Loan Documents and which, in accordance with Section 4.2 of the Intercreditor Agreement, the Administrative Agent is required to release the Liens granted to the Administrative Agent by the Loan Parties on such ABL Priority Collateral. Further, the Administrative Agent may (and is hereby irrevocably authorized by each Lender to), upon the request of the Borrower, release any Subsidiary Guarantor from its obligations under the Loan Guaranty if such Subsidiary Guarantor is no longer a Material Domestic Subsidiary. Except as provided in the foregoing, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. (d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” (or with respect to Replacement Term Loans, any other Class or group of Lenders other than the Required Lenders) with respect to which the consent of the Required Lender (or with respect to Replacement Term Loans the consent of Lenders holding loans or commitments of such Class or lesser group representing more than 50% of the sum of the total loans and unused commitments of such Class or lesser group at such time) is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender. To the extent that any Lender is replaced pursuant to this Section in connection with a Repricing Transaction requiring payment of a fee pursuant to Section 2.12(c), the Borrower shall pay to each Lender being replaced as a result of such Repricing Transaction the fee set forth in Section 2.12(c). (e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any of the 105
other Loan Documents to cure any ambiguity, omission, mistake, defect or inconsistency. (f) Notwithstanding anything to the contrary herein, this Agreement may be amended with the written consent of the Borrower and the Lenders providing the relevant Replacement Term Loans to permit the refinancing or replacement of all or any portion of the outstanding Loans under any Class (any such loans being refinanced or replaced, the “Replaced Term Loans”) with one or more replacement term loans hereunder (“Replacement Term Loans”) pursuant to a Refinancing Amendment; provided that (A) the aggregate principal amount of any Replacement Term Loans shall not exceed the aggregate principal amount of the Replaced Term Loans (plus (1) any additional amounts permitted to be incurred under Section 6.01(a), (r), (s) and/or (t) and, to the extent any such additional amounts are secured, the related Liens are permitted under Section 6.02 and plus (2) the amount of accrued interest and premium (including tender premium) thereon and underwriting discounts, fees (including upfront fees and original issue discount), commissions and expenses associated therewith), (B) any Replacement Term Loans must have a final maturity date that is equal to or later than the final maturity date of, and have a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of, the relevant Replaced Term Loans at the time of the relevant refinancing, (C) any Replacement Term Loans may be pari passu with or junior to any then-existing Loans in right of payment and pari passu with or junior to such Loans with respect to the Collateral (provided that any Replacement Term Loans that are pari passu with or junior to any then-existing Loans shall be subject to an Acceptable Intercreditor Agreement and may be, at the option of the Administrative Agent and the Borrower, documented in a separate agreement or agreements), or be unsecured, (D) any Replacement Term Loans that are secured may not be secured by any assets other than the Collateral, (E) any Replacement Term Loans that are guaranteed may not be guaranteed by any Person other than the Loan Parties, (F) any Replacement Term Loans may not participate on a greater than pro rata basis in any voluntary or mandatory repayment or prepayment in respect of the Loans (and any Additional Term Loans then subject to ratable repayment requirements), (G) any Replacement Term Loans may have pricing (including interest, fees and premiums) and, subject to preceding clause (F), optional prepayment and redemption terms as may be agreed by the Borrower and the lenders providing such Replacement Term Loans, and 106
claims, damages, penalties, incremental Taxes, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by a Loan Party or a Subsidiary, or any Environmental Liability related in any way to a Loan Party or a Subsidiary, (iv) the failure of a Loan Party to deliver to the Administrative Agent the required receipts or other required documentary evidence with respect to a payment made by a Loan Party for Taxes pursuant to Section 2.17, or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not such claim, litigation, investigation or proceeding is brought by any Loan Party or their respective equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. This Section 9.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim. (c) To the extent that any Loan Party fails to pay any amount required to be paid by it to the Administrative Agent (or any sub-agent thereof) (or any Related Party of any of the foregoing) under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent (or any Related Party of any of the foregoing), as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (it being understood that the Loan Parties’ failure to pay any such amount shall not relieve any Loan Party of any default in the payment thereof); provided that the unreimbursed expense or indemnified loss, claim, damage, penalty, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent in its capacity as such. (d) To the extent permitted by applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against any Indemnitee, (i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet), or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document, or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof; provided that, nothing in this paragraph (d) shall relieve any Loan Party of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. (e) All amounts due under this Section shall be payable after written demand therefor. 108
fee to be paid by either the assigning Lender or the assignee Lender or shared between such Lenders; and (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the other Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws. For the purposes of this Section 9.04(b), the terms “Approved Fund” and “Ineligible Institution” have the following meanings: “Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. “Ineligible Institution” means a (a) natural person, (b) a Defaulting Lender or its Parent, (c) holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof; provided that, such holding company, investment vehicle or trust shall not constitute an Ineligible Institution if it (x) has not been established for the primary purpose of acquiring any Loans or Commitments, (y) is managed by a professional advisor, who is not such natural person or a relative thereof, having significant experience in the business of making or purchasing commercial loans, and (z) has assets greater than $25,000,000 and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the ordinary course of its business, or (d) except to the extent provided in Section 9.04(e), a Loan Party or a Subsidiary or other Affiliate of a Loan Party. (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section. (iv) The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the 110
Commitment of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (v) Upon its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to a Platform as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.05, 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. (c) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a “Participant”) other than an Ineligible Institution in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject to the requirements and limitations therein, including the requirements under Section 2.17(f) and (g) (it being understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender and the information and documentation required under Section 2.17(g) will be delivered to the Borrower and the Administrative Agent)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.17, with respect to any participation, than its participating Lender would have 111
JPMORGAN CHASE BANK, N.A., individually as a Lender and as Administrative Agent By _________________________ Name: Title: Signature Page to Global Brass Term Loan Credit Agreement
COMMITMENT SCHEDULE Lender Commitment JPMorgan Chase Bank, N.A. $320,000,000 Total $320,000,000
Exhibit B EXHIBIT B LIST OF CLOSING DOCUMENTS GLOBAL BRASS AND COPPER, INC. AMENDMENT NO. 2 TO SENIOR SECURED TERM LOAN CREDIT FACILITY May 29, 2018 LIST OF CLOSING DOCUMENTS1 A. PRIMARY LOAN DOCUMENTS 1. Amendment No. 2 to Term Loan Credit Agreement (the “Amendment”) by and among Global Brass and Copper, Inc., a Delaware corporation (the “Borrower”), Global Brass and Copper Holdings, Inc., a Delaware corporation (“Holdings”), the other loan parties party thereto (the “Loan Guarantors”, collectively with the Borrower and Holdings, the “Loan Parties”), and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent for itself and the other Lenders (the “Administrative Agent”) to Term Loan Credit Agreement dated as of July 18, 2016, by and among, the Borrower, Holdings, the Loan Guarantors party thereto, the Lenders party thereto and the Administrative Agent (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”, and as amended by the Amendment, the “Credit Agreement”). All capitalized terms used herein without definition shall have the same meanings as set forth in the below-defined Credit Agreement. EXHIBITS Exhibit A -- Amendments to Credit Agreement Exhibit B -- List of Closing Documents B. UCC AND OTHER COLLATERAL-RELATED DELIVERIES 2. UCC, tax lien and name variation search reports naming each Loan Party from the appropriate offices in relevant jurisdictions. 3. Intellectual property search reports naming each Loan Party in each of the U.S. Copyright Office and U.S. Patent and Trademark Office. C. CORPORATE DOCUMENTS 4. Certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (i) that there have been no changes in the Certificate of Incorporation or other charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date 1 Items in bold and italics denote items to be prepared by Borrower. Each capitalized term used herein and not defined herein shall have the meaning assigned to such term in the above-defined Credit Agreement.
of the certification thereof by such governmental entity, (ii) the By-Laws or other applicable organizational document, as attached thereto, of such Loan Party as in effect on the date of such certification, (iii) resolutions of the Board of Directors or other governing body of such Loan Party authorizing the execution, delivery and performance of each Loan Document to which it is a party, and (iv) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of each Borrower) authorized to request a Borrowing or the issuance of a Letter of Credit under the Credit Agreement. 5. Good Standing Certificate (or analogous documentation if applicable) for each Loan Party from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, to the extent generally available in such jurisdiction. D. OPINIONS 6. Opinion of Winston & Xxxxxx LLP, counsel for the Loan Parties.