EX-10.1 3 mtw-ex101_7.htm EX-10.1 mtw-ex101_7.htm

 

 

ACTIVE 238799731v.16

 

EXECUTION VERSION

 

CREDIT AGREEMENT


dated as of

March 25, 2019

among

 

 

THE MANITOWOC COMPANY, INC.

 

The Other Borrowers and Loan Parties Party Hereto

 

The Lenders Party Hereto

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and Syndication Agent

 

and

 

BANK OF AMERICA, N.A. and BANK OF MONTREAL,

as Co-Documentation Agents

 

  

JPMORGAN CHASE BANK, N.A.,

as Sole Lead Arranger

 

and

JPMORGAN CHASE BANK, N.A., BANK OF AMERICA, N.A and BANK OF MONTREAL,
as Joint Bookrunners

 

 

 

ASSET BASED LENDING

 


 

TABLE OF CONTENTS

Page

Article I Definitions

1

 

 

SECTION 1.01.

Defined Terms1

 

 

SECTION 1.02.

Classification of Loans and Borrowings55

 

 

SECTION 1.03.

Terms Generally55

 

 

SECTION 1.04.

Accounting Terms; GAAP.55

 

 

SECTION 1.05.

Status of Obligations56

 

 

SECTION 1.06.

Determination of U.S. Dollar Amounts56

 

 

SECTION 1.07.

Interest Rates. .56

 

 

SECTION 1.08.

Limited Conditionality..56

 

 

SECTION 1.09.

Additional Borrowers..58

 

Article II The Credits

58

 

 

SECTION 2.01.

Commitments58

 

 

SECTION 2.02.

Loans and Borrowings59

 

 

SECTION 2.03.

Requests for Revolving Borrowings59

 

 

SECTION 2.04.

Protective Advances60

 

 

SECTION 2.05.

Swingline Loans61

 

 

SECTION 2.06.

Letters of Credit63

 

 

SECTION 2.07.

Funding of Borrowings69

 

 

SECTION 2.08.

Interest Elections70

 

 

SECTION 2.09.

Termination and Reduction of Commitments; Increase in Commitments71

 

 

SECTION 2.10.

Repayment and Amortization of Loans; Evidence of Debt73

 

 

SECTION 2.11.

Prepayment of Loans74

 

 

SECTION 2.12.

Fees76

 

 

SECTION 2.13.

Interest77

 

 

SECTION 2.14.

Alternate Rate of Interest.78

 

 

SECTION 2.15.

Increased Costs79

 

 

SECTION 2.16.

Break Funding Payments81

 

 

SECTION 2.17.

Withholding of Taxes; Gross-Up81

 

 

SECTION 2.18.

Payments Generally; Allocation of Proceeds; Sharing of Setoffs86

 

 

SECTION 2.19.

Mitigation Obligations; Replacement of Lenders.89

 

 

SECTION 2.20.

Defaulting Lenders90

 

 

SECTION 2.21.

Returned Payments92

 

 

SECTION 2.22.

Banking Services, Designated Secured Foreign Products and Swap Agreements92

 

 

SECTION 2.23.

Judgment Currency92

 

 

SECTION 2.24.

MIRE Events93

 

 

SECTION 2.25.

Encumbrance of Specified Wisconsin Real Property93

 

Article III Representations and Warranties

93

 

 

SECTION 3.01.

Organization; Powers94

 

 

SECTION 3.02.

Authorization; Enforceability94

 

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TABLE OF CONTENTS
(Continued)

Page

 

SECTION 3.03.

Governmental Approvals; No Conflicts94

 

 

SECTION 3.04.

Financial Condition; No Material Adverse Change94

 

 

SECTION 3.05.

Properties94

 

 

SECTION 3.06.

Litigation and Environmental Matters95

 

 

SECTION 3.07.

Compliance with Laws; No Default95

 

 

SECTION 3.08.

Investment Company Status95

 

 

SECTION 3.09.

Taxes96

 

 

SECTION 3.10.

ERISA; Pension Plans.96

 

 

SECTION 3.11.

Disclosure96

 

 

SECTION 3.12.

Solvency96

 

 

SECTION 3.13.

Insurance97

 

 

SECTION 3.14.

Capitalization and Subsidiaries97

 

 

SECTION 3.15.

Security Interest in Collateral97

 

 

SECTION 3.16.

Employment Matters97

 

 

SECTION 3.17.

Margin Regulations97

 

 

SECTION 3.18.

Use of Proceeds98

 

 

SECTION 3.19.

Common Enterprise98

 

 

SECTION 3.20.

Anti-Corruption Laws and Sanctions98

 

 

SECTION 3.21.

Centre of Main Interest98

 

 

SECTION 3.22.

EEA Financial Institution98

 

 

SECTION 3.23.

Plan Assets; Prohibited Transactions98

 

Article IV Conditions

98

 

 

SECTION 4.01.

Effective Date99

 

 

SECTION 4.02.

Each Credit Event103

 

Article V Affirmative Covenants

103

 

 

SECTION 5.01.

Financial Statements; Borrowing Base and Other Information104

 

 

SECTION 5.02.

Notices of Material Events107

 

 

SECTION 5.03.

Existence; Conduct of Business108

 

 

SECTION 5.04.

Payment of Taxes108

 

 

SECTION 5.05.

Maintenance of Properties108

 

 

SECTION 5.06.

Books and Records; Inspection Rights108

 

 

SECTION 5.07.

Compliance with Laws and Material Contractual Obligations109

 

 

SECTION 5.08.

Use of Proceeds109

 

 

SECTION 5.09.

Insurance109

 

 

SECTION 5.10.

Casualty and Condemnation110

 

 

SECTION 5.11.

Appraisals110

 

 

SECTION 5.12.

Field Examinations110

 

 

SECTION 5.13.

Financial Assistance111

 

 

SECTION 5.14.

Additional Collateral; Further Assurances111

 

 

SECTION 5.15.

Banking Services; European Cash Management.114

 

 

SECTION 5.16.

Transfer of Accounts of German Loan Parties.114

 

 

SECTION 5.17.

Post-Closing Matters115

 

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TABLE OF CONTENTS
(Continued)

Page

 

SECTION 5.18.

Centre of Main Interests and Establishments115

 

Article VI Negative Covenants

115

 

 

SECTION 6.01.

Indebtedness115

 

 

SECTION 6.02.

Liens120

 

 

SECTION 6.03.

Fundamental Changes123

 

 

SECTION 6.04.

Investments, Loans, Advances, Guarantees and Acquisitions124

 

 

SECTION 6.05.

Asset Sales127

 

 

SECTION 6.06.

Sale and Leaseback Transactions129

 

 

SECTION 6.07.

Swap Agreements129

 

 

SECTION 6.08.

Restricted Payments; Certain Payments of Indebtedness.129

 

 

SECTION 6.09.

Transactions with Affiliates131

 

 

SECTION 6.10.

Restrictive Agreements132

 

 

SECTION 6.11.

Amendment of Material Documents133

 

 

SECTION 6.12.

Fixed Charge Coverage Ratio133

 

 

SECTION 6.13.

Rental Inventory133

 

 

SECTION 6.14.

Buy-Back Limitations133

 

Article VII Events of Default

133

 

Article VIII The Administrative Agent

136

 

 

SECTION 8.01.

Authorization and Action136

 

 

SECTION 8.02.

Administrative Agent’s Reliance, Indemnification, Etc.139

 

 

SECTION 8.03.

Posting of Communications140

 

 

SECTION 8.04.

Reliance141

 

 

SECTION 8.05.

Successor Administrative Agent142

 

 

SECTION 8.06.

Acknowledgements of Lenders and Issuing Bank142

 

 

SECTION 8.07.

Collateral Matters.143

 

 

SECTION 8.08.

Credit Bidding147

 

 

SECTION 8.09.

Certain ERISA Matters148

 

 

SECTION 8.10.

Flood Laws149

 

Article IX Miscellaneous

149

 

 

SECTION 9.01.

Notices149

 

 

SECTION 9.02.

Waivers; Amendments151

 

 

SECTION 9.03.

Expenses; Indemnity; Damage Waiver154

 

 

SECTION 9.04.

Successors and Assigns156

 

 

SECTION 9.05.

Survival160

 

 

SECTION 9.06.

Counterparts; Integration; Effectiveness; Electronic Execution160

 

 

SECTION 9.07.

Severability161

 

 

SECTION 9.08.

Right of Setoff161

 

 

SECTION 9.09.

Governing Law; Jurisdiction; Consent to Service of Process161

 

 

SECTION 9.10.

WAIVER OF JURY TRIAL163

 

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TABLE OF CONTENTS
(Continued)

Page

 

SECTION 9.11.

Headings163

 

 

SECTION 9.12.

Confidentiality163

 

 

SECTION 9.13.

Several Obligations; Nonreliance; Violation of Law164

 

 

SECTION 9.14.

USA PATRIOT Act164

 

 

SECTION 9.15.

Disclosure164

 

 

SECTION 9.16.

Appointment for Perfection164

 

 

SECTION 9.17.

Interest Rate Limitation165

 

 

SECTION 9.18.

No Fiduciary Duty, etc165

 

 

SECTION 9.19.

Intercreditor Agreements166

 

 

SECTION 9.20.

Limitation on Subsidiaries166

 

 

SECTION 9.21.

Acknowledgment and Consent to Bail-In of EEA Financial Institutions166

 

Article X Loan Guaranty of Domestic Loan Parties

166

 

 

SECTION 10.01.

Guaranty166

 

 

SECTION 10.02.

Guaranty of Payment167

 

 

SECTION 10.03.

No Discharge or Diminishment of Loan Guaranty167

 

 

SECTION 10.04.

Defenses Waived168

 

 

SECTION 10.05.

Rights of Subrogation168

 

 

SECTION 10.06.

Reinstatement; Stay of Acceleration168

 

 

SECTION 10.07.

Information168

 

 

SECTION 10.08.

Termination169

 

 

SECTION 10.09.

Taxes169

 

 

SECTION 10.10.

Maximum Liability169

 

 

SECTION 10.11.

Contribution.169

 

 

SECTION 10.12.

Liability Cumulative170

 

 

SECTION 10.13.

Keepwell170

 

Article XI Loan Guaranty of German Loan Parties

171

 

 

SECTION 11.01.

Guaranty171

 

 

SECTION 11.02.

Guaranty of Payment171

 

 

SECTION 11.03.

No Discharge or Diminishment of Loan Guaranty171

 

 

SECTION 11.04.

Defenses Waived172

 

 

SECTION 11.05.

Rights of Subrogation172

 

 

SECTION 11.06.

Reinstatement; Stay of Acceleration172

 

 

SECTION 11.07.

Information173

 

 

SECTION 11.08.

Termination173

 

 

SECTION 11.09.

Taxes173

 

 

SECTION 11.10.

Maximum Liability173

 

 

SECTION 11.11.

Contribution.173

 

 

SECTION 11.12.

Liability Cumulative174

 

 

SECTION 11.13.

Keepwell174

 

 

SECTION 11.14.

German Guaranty Limitations.175

 

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TABLE OF CONTENTS
(Continued)

Page

Article XII The Borrower Representative.

177

 

 

SECTION 12.01.

Appointment; Nature of Relationship177

 

 

SECTION 12.02.

Powers177

 

 

SECTION 12.03.

Employment of Agents177

 

 

SECTION 12.04.

Successor Borrower Representative177

 

 

SECTION 12.05.

Execution of Loan Documents; Borrowing Base Certificate178

 

Article XIII Subordination of Intercompany Indebtedness.

178

 

 

SECTION 13.01.

Subordination of Intercompany Indebtedness178

 

 

 


-v-


 

SCHEDULES:

Commitment Schedule

Schedule 1.01(b) – Specified Cranes

Schedule 1.01(c) – Existing Letters of Credit

Schedule 2.06(n) – Foreign Line LCs

Schedule 3.05(a) – Mortgaged Real Property

Schedule 3.05(b) – Leased Properties

Schedule 3.05(c) – Non-Mortgaged Real Property

Schedule 3.06 – Disclosed Matters
Schedule 3.13 – Insurance
Schedule 3.14 – Capitalization and Subsidiaries
Schedule 5.17 – Post-Closing Matters

Schedule 6.01 – Existing Indebtedness
Schedule 6.02 – Existing Liens
Schedule 6.04 – Existing Investments

Schedule 6.09 – Transactions with Affiliates
Schedule 6.10 – Existing Restrictions

 

EXHIBITS:

Exhibit A – Form of Assignment and Assumption
Exhibit B – Form of Borrowing Base Certificate
Exhibit C – Form of Compliance Certificate
Exhibit D – Joinder Agreement
Exhibit E-1 – U.S. Tax Certificate (For Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit E-2 – U.S. Tax Certificate (For Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit E-3 – U.S. Tax Certificate (For Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit E-4 – U.S. Tax Certificate (For Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes)

Exhibit F – List of Closing Documents

Exhibit G – Form of Notice of Designated Secured Foreign Products

Exhibit H – Form of Borrowing Request

 

 

 

 

 


 

CREDIT AGREEMENT dated as of March 25, 2019 (as it may be amended or modified from time to time, this Agreement) among THE MANITOWOC COMPANY, INC., a Wisconsin corporation, GROVE U.S. L.L.C., a Delaware limited liability company, MANITOWOC CRANE GROUP GERMANY GMBH, a German limited liability company (Gesellschaft mit beschränkter Haftung), the other Loan Parties party hereto, the Lenders party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and Syndication Agent, and BANK OF AMERICA, N.A. and BANK OF MONTREAL, as Co-Documentation Agents.

The parties hereto agree as follows:

Article I

Definitions

SECTION 1.01.Defined Terms

.  As used in this Agreement, the following terms have the meanings specified below:

ABR”, when used in reference to (a) a rate of interest, refers to the Alternate Base Rate, and (b) 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 Alternate Base Rate.

Account” has the meaning assigned to the term (a) “Accounts” in the Domestic Security Agreement and (b) “Trade Receivables” in the German Security Agreement.

Account Debtor” means any Person obligated on an Account.

Acquisition” means any transaction, or any series of related transactions, by which any Loan Party or any Restricted Subsidiary (a) acquires any going business or all or substantially all of the assets of any Person (or business line or division thereof), 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.

Acquisition-Related Incremental Commitments” has the meaning set forth in Section 2.09(f).

Additional Junior Indebtedness” means Indebtedness for borrowed money of any Loan Party (and the Guarantees thereof by any Loan Party); provided that (a) such Indebtedness shall be secured on a second-priority (or other junior priority) basis by the assets of any Loan Party and (b) such Indebtedness shall be subject to a Junior Intercreditor Agreement.

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., in its capacity as administrative and collateral agent for the Secured Parties hereunder or, as applicable, such branches or affiliates of JPMorgan Chase Bank, N.A. as it shall from time to time designate for the purpose of performing its obligations hereunder in such capacity.  References to the “Administrative Agent” shall include any other

 


 

branch or affiliate of JPMorgan Chase Bank, N.A. designated by JPMorgan Chase Bank, N.A. for the purpose of performing such obligations in such capacity.

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.  With respect to any Person organized under the laws of Germany an “Affiliate” shall in any event include the direct or indirect shareholder(s) of a Person or any entity affiliated to such shareholder (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz).

Agent Indemnitee” has the meaning assigned to it in Section 9.03(c).

Aggregate Availability” means, at any time, an amount equal to (a) the lesser of (i) the Aggregate Commitment and (ii) the Aggregate Borrowing Base minus (b) the Aggregate Revolving Exposure.

Aggregate Borrowing Base” means, at any time, the sum of the Domestic Borrowing Base at such time plus the German Borrowing Base at such time.

Aggregate Commitment” means, at any time, the aggregate of the Commitments of all of the Lenders, as increased and/or reduced from time to time pursuant to the terms and conditions hereof.  As of the Effective Date, the Aggregate Commitment equals $275,000,000.

Aggregate Revolving Exposure” means, at any time, the aggregate Revolving Exposure of all the Lenders.

Agreed Currencies” means, collectively, U.S. Dollars, Euro and Sterling.

Allocable Amount” has the meaning assigned to such term in Section 10.11(b).

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 Dollars 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 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 shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Alternate Rate” means, for any day and for any Agreed Currency, the sum of (a) a rate per annum selected by the Administrative Agent, in its reasonable discretion based on market conditions in consultation with the Borrower Representative, reflecting the cost to the Lenders of obtaining funds, plus (b) the Applicable Rate for Eurodollar Revolving Loans.  When used in reference to any Loan or

2


 

Borrowing, Alternate Rate refers to whether such Loan, or the Loans comprising such Borrowing are bearing interest at a rate determined by reference to the Alternate Rate.

Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Company and its Affiliates from time to time concerning or relating to money-laundering, bribery or corruption, including the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

Applicable Parties” has the meaning assigned to it in Section 8.03(c).

Applicable Percentage” with respect to any Lender, (a) with respect to Revolving Loans, LC Exposure or Swingline Loans, a percentage equal to a fraction the numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate Commitment (provided that, if the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon such Lender’s share of the Aggregate Revolving Exposure at that time) and (b) with respect to Protective Advances, a percentage based upon such Lender’s share of the Aggregate Revolving Exposure (with the Swingline Exposure of each Lender calculated assuming that all of the Lenders have funded their participations in all Swingline Loans outstanding at such time) and the Unused Commitments; provided that, in accordance with Section 2.20, so long as any Lender shall be a Defaulting Lender, such Lender’s Commitment shall be disregarded in the foregoing calculation.

Applicable Rate” means, for any day, with respect to any Loan, the applicable rate per annum set forth below under the caption “ABR Spread” or “Eurodollar and Overnight LIBO Spread”, as the case may be, based upon the Average Quarterly Availability as of the most recent determination date:

 

Average Quarterly Availability

ABR Spread

Eurodollar and Overnight LIBO Spread

 

Category 1

≥ 50% of Aggregate Commitment

0.25%

1.25%

Category 2

< 50% of Aggregate Commitment

0.50%

1.50%

 

For purposes of the foregoing,  the Applicable Rate shall be determined as of the beginning of each fiscal quarter of the Company and shall be effective during the period commencing on and including the first day of each fiscal quarter of the Company and ending on the last day of such fiscal quarter, it being understood and agreed that, for purposes of determining the Applicable Rate on the first day of any fiscal quarter of the Company, the Average Quarterly Availability during the most recently ended fiscal quarter of the Company shall be used; provided that (i) the Average Quarterly Availability shall be deemed to be in Category 2 at the option of the Administrative Agent or at the request of the Required Lenders if the Borrowers fail to deliver any Borrowing Base Certificate or related information required to be delivered hereunder, during the period from the expiration of the time for delivery thereof until each such Borrowing Base Certificate and related information is so delivered and (ii) the Average Quarterly Availability shall be deemed to be in Category 1 during the period from the Effective Date to, and including, the last day of the first full fiscal quarter of the Company ending after the Effective Date.

 

Approved Electronic Platform” has the meaning assigned to it in Section 8.03(a).

 

Approved Fund” has the meaning assigned to such term in Section 9.04.

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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, substantially in the form of Exhibit A or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative Agent and, if the Borrower Representative’s consent is required for the related assignment, the Borrower Representative (such approval not to be unreasonably withheld or delayed).

Auditor’s Determination” has the meaning assigned to such term in Section 11.14(c).

Availability Period” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and the date of termination of the Commitments.

Average Quarterly Availability” means, for any fiscal quarter of the Company, an amount equal to the average daily Aggregate Availability during such fiscal quarter.

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 any Subsidiaries of the Loan Parties if the Borrower Representative has provided written notice to the Administrative Agent of the services in favor of such Subsidiaries to be secured) by any Lender or any of its Affiliates:  (a) credit cards for commercial customers (including “commercial credit cards” and purchasing cards), (b) stored value cards, (c) merchant processing services and (d) treasury management services (including 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 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) in connection with Banking Services.

Banking Services Reserves” means all Reserves which the Administrative Agent from time to time establishes in its Permitted Discretion for Banking Services then provided or outstanding.

Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.

Bankruptcy Event” means, with respect to any Person, when such Person becomes the subject of a voluntary or involuntary bankruptcy or insolvency proceeding or proposal, or has had a receiver, interim receiver, receiver and manager, sequestrator, monitor, 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 or has had any order for relief in such proceeding entered in respect thereof, provided that a Bankruptcy Event  shall not result solely by virtue of any ownership interest, or the acquisition of any

4


 

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.

Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

Borrower” or “Borrowers” means, individually or collectively, the Domestic Borrowers and the German Borrower.

Borrower Joinder Effective Date” has the meaning set forth in Section 1.09.

Borrower Representative” has the meaning assigned to such term in Section 11.01.

Borrowing” means (a) Revolving Loans of the same Type 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, (b) a Swingline Loan and (c) a Protective Advance.

Borrowing Base Certificate” means a certificate, setting forth the calculation of each Borrowing Base, signed and certified as accurate and complete by a Financial Officer of the Borrower Representative, in substantially the form of Exhibit B or another form which is acceptable to the Administrative Agent in its Permitted Discretion.

Borrowing Base Collateral” means all Collateral consisting of the Accounts, Collection Accounts, Inventory, Equipment and/or Mortgaged Real Property, respectively, of the applicable Loan Parties.

Borrowing Bases” means, collectively, the Domestic Borrowing Base and the German Borrowing Base.

Borrowing Request” means a request by the Borrower Representative for a Revolving Borrowing in accordance with Section 2.03.

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 dealings in the relevant Agreed Currency in the London interbank market or the principal financial center of such Agreed Currency (and, if the Borrowings or LC Disbursements which are the

5


 

subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in Euro, the term Business Day shall also exclude any day on which the TARGET2 payment system is not open for the settlement of payments in Euro).

Buy-Back Arrangements” means arrangements whereby the Company or a Restricted Subsidiary of the Company in the ordinary course of business enters into an agreement with a customer or third party financing company (a) to guarantee to repurchase crane products at a later date at an agreed upon price or (b) to guarantee a minimum crane product residual value at the end of an underlying finance term for such crane products, including guarantees of minimum crane product residual value in connection with Sale and Leaseback Transactions.

Buy-Back Obligations” means repurchase or guarantee obligations of the Company or its Restricted Subsidiaries arising out of Buy-Back Arrangements.  For the avoidance of doubt, guarantees by the Company or any of its Restricted Subsidiaries of customer payment obligations shall not constitute Buy-Back Obligations.

Canada” means, collectively, Canada and each province and territory thereof.

Canadian Dollars” and “Cdn.$” means dollars in the lawful currency of Canada.

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 fixed or capital asset on a consolidated balance sheet of the Company and its Restricted Subsidiaries prepared in accordance with GAAP, but excluding, without duplication, (a) with respect to the purchase price of assets that are purchased substantially contemporaneously with the trade-in of existing assets during any period, the excess of the gross amount of such purchase price over the credit granted by the seller of such assets for the assets being traded in at such time, (b) expenditures made during any period to consummate one or more Permitted Acquisitions and (c) expenditures during such period that, pursuant to a written agreement, are reimbursed in cash by a third Person (excluding the Company or any of its Affiliates) during such period.

Capital Impairment” has the meaning assigned to such term in Section 11.14(a).

Cash Dominion Period” means any period of time, at the election of the Administrative Agent or at the direction of the Required Lenders, (i) when a Specified Event of Default has occurred and is continuing, or (ii) commencing with the date on which Aggregate Availability is less than the greater of (x) 10% of the Line Cap and (y) $20,000,000, and continuing until such subsequent date as when the Aggregate Availability has exceeded the greater of (x) 10% of the Line Cap and (y) $20,000,000 for sixty (60) consecutive days; provided that such period shall be in effect immediately (without any action by the Administrative Agent or Required Lender) commencing with the date on which Aggregate Availability is less than 7.5% of the Line Cap and continuing until such subsequent date as either (A) the Aggregate Availability has exceeded the greater of (x) 10% of the Line Cap and (y) $20,000,000 for sixty (60) consecutive days or (B) (x) the Aggregate Availability has exceeded 7.5% of the Line Cap for sixty (60) consecutive days and (y) the Administrative Agent or the Required Lenders have elected to terminate such Cash Dominion Period.

CFC” means a “controlled foreign corporation” under Section 957 of the Code.

CFC Holding Company” means (a) a Domestic Restricted Subsidiary with no material assets or business activities other than the ownership or management of Equity Interests in, or Indebtedness of, one or more CFCs or (b) a pass-through entity (including a partnership or disregarded entity for U.S. federal

6


 

income Tax purposes) that owns directly or indirectly Equity Interests in, or Indebtedness of, one or more CFCs.

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 30% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Company, (b) the occurrence of a change in control, or other similar provision, as defined in (i) the Junior Notes Indenture or (ii) any Permitted Term Loan Agreement or any agreement or instrument evidencing any other Junior Indebtedness, Permitted Long-Term Indebtedness or Subordinated Indebtedness with a principal amount exceeding $20,000,000 (triggering a default or mandatory prepayment, which default or mandatory prepayment has not been waived in writing), or (c) the Company ceases to own, directly or indirectly, and Control 100% (other than directors’ or managers’ qualifying shares) of the ordinary voting and economic power of the German Borrower so long as assets of the German Borrower are included in the Borrowing Base.

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, implementation or application thereof by any Governmental Authority or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’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 (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement); provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in the implementation thereof, or any European equivalent regulation (such as the European Market and Infrastructure Regulation) 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.

Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Domestic Revolving Loans, German Revolving Loans, Swingline Loans or Protective Advances.

Code” means the Internal Revenue Code of 1986, as amended from time to time.

Collateral” means any and all property of a Loan Party subject to a Lien created by the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that is at any time subject to a 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, Collateral shall not include any Excluded Assets.

Collateral Access Agreement” has the meaning assigned to such term in the applicable Security Agreement.

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Collateral Documents means, collectively, the Domestic Collateral Documents, the German Collateral Documents, and any other Loan Documents that create, perfect or evidence Liens to secure the Secured Obligations.

Collection Account” has the meaning assigned to such term in the applicable Security Agreement.

Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit, Protective Advances and Swingline Loans hereunder, as such commitment may be reduced or increased from time to time pursuant to (a) Section 2.09 and (b) assignments by or to such Lender pursuant to Section 9.04.  The initial U.S. Dollar Amount of each Lender’s Commitment is set forth on the Commitment Schedule, or in the Assignment and Assumption or other documentation or record (as such term is defined in Section 9-102(a)(70) of the UCC) as provided in Section 9.04(b)(ii)(C), pursuant to which such Lender shall have assumed its Commitment, as applicable.  

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.

Communications” has the meaning assigned to such term in Section 9.01(d).

Company” means The Manitowoc Company, Inc., a Wisconsin corporation.

Compliance Certificate” means a certificate, signed and certified as accurate and complete by a Financial Officer of the Borrower Representative, in substantially the form of Exhibit C or another form which is reasonably acceptable to the Administrative Agent.

 

Computation Date” is defined in Section 1.06.

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.

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.

Controlled Disbursement Account” means, collectively, accounts of the Loan Parties maintained with the Administrative Agent from time to time as zero balance, cash management accounts pursuant to and under any agreement between the Loan Parties and the Administrative Agent, as modified and amended from time to time, and through which disbursements of the Borrowers, any other Loan Party and any designated Subsidiary of the Borrowers are made and settled on a daily basis with no uninvested balance remaining overnight.

Corresponding Debt” has the meaning assigned to such term in Section 8.07(e).

Co-Documentation Agent” means each of Bank of America, N.A. and Bank of Montreal, each in its capacity as a co-documentation agent for the credit facility evidenced by this Agreement.

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Credit Event means a Borrowing, the issuance, amendment, renewal or extension of a Letter of Credit, an LC Disbursement or any of the foregoing.

Credit Party” means the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender.

Customary Mandatory Prepayment Terms” means, in respect of any Indebtedness, terms requiring any obligor in respect of such Indebtedness to pay (or offer to pay) such Indebtedness (a) in the event of a “change in control” (or similar event), (b) in the event of an “asset sale” (or similar event, including condemnation or casualty), provided that such mandatory payment (or offer to pay) can be avoided pursuant to customary reinvestment rights (it being understood that the terms of such Indebtedness may include additional customary means of avoiding the applicable payment (or offer to pay)) and (c) in the case of any Indebtedness that constitutes a term loan, on account of annual “excess cash flow” on terms approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed); provided that, unless otherwise agreed to by the Administrative Agent pursuant to an intercreditor agreement in form and substance reasonably acceptable to it, with respect to the foregoing clause (b), if any Secured Obligations are required to be prepaid as a result of an event described therein, then, to the extent the Net Proceeds of such event are proceeds of Collateral, such Net Proceeds shall repay such Secured Obligations prior to the repayment of such other Indebtedness. The Company may provide a certificate of a Financial Officer to the effect that the terms of any reinvestment rights or other means of avoiding the applicable payment (or offer to pay) referred to in clause (b) above are customary, and such determination shall be conclusive unless the Administrative Agent shall have objected to such determination within ten (10) Business Days following its written confirmation to the Borrower Representative of the Administrative Agent’s receipt of such certificate and the draft documentation governing such Indebtedness.

Customer” has the meaning assigned to such term in Section 2.17(h).

Default” means any event or condition described in Article VII 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 (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent  to funding (specifically identified and including the particular Default, if any) has not been satisfied, (b) has notified the Company or any Credit Party in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular Default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of (i) a Bankruptcy Event or (ii) a Bail-In Action.

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Deposit Account has the meaning assigned to such term in the applicable Security Agreement.

Deposit Account Control Agreement” has the meaning assigned to such term in the applicable Security Agreement.

Designated Secured Foreign Products” means agreements between, on the one hand, any Lender and/or Affiliate of a Lender, on the other hand, any Loan Party or any Foreign Subsidiary of any Loan Party; provided that (a) the applicable Loan Party has provided the Administrative Agent written notice of such Loan Party’s designation of any such line of credit or debt obligation as a “Designated Secured Foreign Product” pursuant to the form attached hereto as Exhibit G, and (b) such Indebtedness shall be permitted by Section 6.01(m).

Designated Secured Foreign Products Obligations” means any and all obligations of any Foreign Subsidiaries of the Loan Parties, 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 Designated Secured Foreign Products.

Disclosed Matters” means the actions, suits, proceedings and environmental matters disclosed in Schedule 3.06.

Disqualified Capital Stock” means that portion of any Equity Interests which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event (other than an event which would constitute a Change in Control), matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof (except, in each case, upon the occurrence of a Change in Control) on or prior to the final maturity date of the Loans.

Dividing Person” has the meaning assigned to it in the definition of “Division”.

Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.

DLL Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, between the Administrative Agent and De Lage Landen Financial Services Inc., as may be amended, supplemented, replaced or otherwise modified from time to time in accordance with the terms thereof.

Document” has the meaning assigned to such term in the applicable Security Agreement.

Domestic Borrowers” means, individually or collectively, the Company and Grove U.S. L.L.C., a Delaware limited liability company, and any other Person who becomes a Domestic Borrower under this Agreement pursuant to Section 1.09 upon the execution and delivery of a Joinder Agreement.

Domestic Borrowing” means a Borrowing comprised of Domestic Revolving Loans.

Domestic Borrowing Base” means, at any time, the sum of (a) 85% of the Eligible Accounts (excluding any Eligible Credit Insured Accounts) of the Domestic Loan Parties at such time, plus (b) without duplication of other Eligible Accounts, 90% of the Eligible Credit Insured Accounts of the Domestic Loan Parties at such time, plus (c) the lesser of (i) 75% of the Eligible Inventory of the Domestic Loan Parties at such time and (ii) the product of 85% of the Net Orderly Liquidation Value

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multiplied by the Eligible Inventory of the Domestic Loan Parties at such time, valued at the lower of cost or market value, determined on a first-in-first-out basis plus (d) the Domestic PP&E Component at such time in an aggregate amount not to exceed 25% of the aggregate Domestic Borrowing Base at such time minus (e) Reserves pertaining to the Domestic Loan Parties (without duplication of any Reserves accounted for in the Domestic PP&E Component), such Eligible Accounts, such Eligible Credit Insured Accounts or such Eligible Inventory.  The Domestic Borrowing Base at any time shall be determined by reference to the most recent applicable Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 4.01(j) or 5.01(f), subject to adjustments for changes to, or implementation of, Reserves established by the Administrative Agent in its Permitted Discretion as provided herein.

Domestic Collateral Documents” means the Domestic Security Agreement, the Mortgages and each other pledge agreement, security agreement, or other collateral agreement that is entered into by any Domestic Loan Party in favor of the Administrative Agent, securing the Secured Obligations, in each case, entered into pursuant to the terms of this Agreement or any other Loan Document (including Section 5.14).

Domestic LC Exposure” means, at any time, the sum of (a) the aggregate undrawn U.S. Dollar Amount of all outstanding Domestic Letters of Credit at such time plus (b) the aggregate U.S. Dollar Amount of all LC Disbursements in respect of Domestic Letters of Credit that have not yet been reimbursed by or on behalf of the Company at such time.  The Domestic LC Exposure of any Lender at any time shall be its Percentage of the total Domestic LC Exposure at such time.

Domestic Letter of Credit” means any Letter of Credit issued for the account of a Domestic Borrower under the Commitments pursuant to this Agreement.

Domestic Loan Parties” means, collectively, the Company and each direct and indirect wholly-owned Material Domestic Restricted Subsidiary or other Person organized under the laws of the U.S. that is or becomes a party hereto and to the Domestic Security Agreement on the Effective Date or pursuant to Section 5.14.

Domestic PP&E Component” means, at the time of any determination, an amount equal to (a) the sum of (i) the sum of the following amounts calculated for each item of Eligible Equipment of the Domestic Loan Parties: the applicable Equipment Amortization Factor for such Eligible Equipment multiplied by 85% of the Net Orderly Liquidation Value of such Eligible Equipment plus (ii) the sum of the following amounts calculated for each parcel of Eligible Real Property of the Domestic Loan Parties: the applicable Real Property Amortization Factor for such Eligible Real Property multiplied by 75% of the fair market value of such Eligible Real Property less (b) Reserves applicable to the Domestic PP&E Component and, without duplication of Reserves set forth in clause (e) of the definition of “Domestic Borrowing Base,” the Domestic Loan Parties and established by the Administrative Agent in its Permitted Discretion.

Domestic Restricted Subsidiary” means any Restricted Subsidiary organized under the laws of a jurisdiction located in the U.S.

Domestic Revolving Exposure” means, with respect to any Lender at any time, and without duplication, the sum of (a) the U.S. Dollar Amount of the outstanding principal amount of such Lender’s Domestic Revolving Loans plus (b) the U.S. Dollar Amount of such Lender’s Domestic LC Exposure plus (c) the U.S. Dollar Amount of such Lender’s Domestic Swingline Exposure plus (d) the U.S. Dollar Amount of such Lender’s Applicable Percentage of the aggregate principal amount of Protective Advances to any Domestic Borrower outstanding at such time.

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Domestic Revolving Loan means a Loan made by a Lender to a Domestic Borrower pursuant to Section 2.01.

Domestic Security Agreement” means that certain ABL Pledge and Security Agreement (including any and all supplements thereto), dated as of the Effective Date, between the Domestic Loan Parties and the Administrative Agent, for the benefit of the Secured Parties.

Domestic Subsidiary means a Subsidiary organized under the laws of a jurisdiction located in the U.S.

Domestic Swingline Exposure” means, at any time, the U.S. Dollar Amount of the aggregate principal amount of all outstanding Domestic Swingline Loans that the Lenders have purchased participations in pursuant to the terms hereof.  The Domestic Swingline Exposure of any Lender at any time shall be its Percentage of the total Domestic Swingline Exposure at such time.

EBITDA” means, for any period, the sum (without duplication) of Net Income for such period

plus, to the extent Net Income has been reduced thereby:

(a)

all income taxes paid or accrued for such period (other than income taxes attributable to unusual or nonrecurring gains or losses or taxes attributable to sales or dispositions outside the ordinary course of business);

(b)

total interest expense determined in accordance with GAAP;

(c)

Non-Cash Charges less any non-cash items increasing Net Income for such period;

(d)

restructuring charges; provided, that the aggregate amount of add-backs pursuant to this clause (d) does not exceed (x) $25,000,000 for such period, and (y) $75,000,000 for the term of this Agreement;

(e)

pro forma “run rate” cost savings, operating expense reductions and other synergies (in each case, net of amounts actually realized) related to acquisitions, divestitures, dispositions, mergers, Divisions, amalgamations, consolidations or other investments or related to restructurings, operational changes, strategic initiatives, cost savings initiatives, operational improvements, entry into new markets, reductions in force or other similar initiatives and actions that are reasonably identifiable and projected by the Company in good faith to result from actions that have either been taken, with respect to which substantial steps have been taken or that are expected to be taken within twelve (12) months of the date of consummation of such acquisition, divestiture, disposition, merger, Division, amalgamation, consolidation or other investment or the initiation of such restructuring, operational change, strategic initiative, cost savings initiative, operational improvement, entry into new market, reduction in force and other similar initiative or action, in each case so long they are reasonably identifiable and quantifiable and factually supportable; provided that, in each case, such adjustments are set forth in a Certificate of a Financial Officer which states the amount of such adjustment or adjustments and that such adjustment or adjustments are based on the reasonable good faith beliefs of the applicable Financial Officer executing such certificate at the time of such execution; provided, further, that the aggregate amount of add-backs pursuant to this clause (e) (not counting for purposes of applying this limitation, amounts pursuant to this clause (e) that are permitted to be made in accordance with Article 11 of Regulation S X) does not exceed 15.0% of Consolidated EBITDA for such period (calculated prior to giving effect to any such addback pursuant to this clause (e)); and

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(f)

any expenses, fees, costs or charges (including all transaction, restructuring and transition costs, fees and expenses (including diligence costs, cash severance costs, retention payments to employees, lease termination costs and reserves)) or any amortization thereof related to any Equity Offering, Investment permitted under Section 6.04, sale of assets, acquisition, disposition, discontinued operations, recapitalization or the incurrence or issuance of Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof) (whether or not successful) or extinguishment of Indebtedness (and termination of any Swap Obligations or other derivative instruments) including (i) such fees, expenses or charges related to the offering of the Junior Notes and this Agreement entered into on the Effective Date and (ii) any amendment or other modification of the Junior Notes, this Agreement or any other Indebtedness permitted to be incurred by this Agreement (including a refinancing thereof);

all calculated for the Company and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP (to the extent applicable).

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).

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 Borrowers and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent or any Issuing Bank and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security system.

Eligible Accounts” means, at any time, the Accounts of any Loan Party which are not excluded as ineligible by virtue of one or more of the criteria set forth below. Eligible Accounts shall not include any Account of a Loan Party:

(a)

which is not subject to a first priority perfected security interest in favor of the Administrative Agent;

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(b)

which is subject to any Lien, unless such Lien constitutes (x) a Lien in favor of the Administrative Agent, (y) a Permitted Encumbrance which does not have priority over the Lien in favor of the Administrative Agent or (z) a Lien that is permitted under Section 6.02(b);

(c)

(i) which is unpaid more than 90 days after the date of the original invoice therefor or more than 60 days after the original due date therefor, or (ii) which has been written off the books of such Loan Party or otherwise designated as uncollectible;

(d)

which is owing by an Account Debtor for which more than 50% of the Accounts owing from such Account Debtor and its Affiliates are ineligible under clause (c) above;

(e)

which is owing by an Account Debtor to the extent the aggregate amount of Accounts owing from such Account Debtor and its Affiliates to all Loan Parties exceeds 25% (or such greater percentage as the Administrative Agent may determine from time to time in its Permitted Discretion) of the aggregate amount of Eligible Accounts of all Loan Parties (but will only be ineligible to the extent of such excess);

(f)

with respect to which any covenant, representation or warranty contained in any Loan Document has been breached or is not true in any material respect (or, with respect to any covenant, representation or warranty which is subject to any materiality qualifier, has been breached or is not true in any respect);

(g)

which (i) does not arise from the bona fide sale of goods or performance of services in the ordinary course of business, (ii) is not evidenced by an invoice or other documentation reasonably satisfactory to the Administrative Agent which has been sent to the Account Debtor, (iii) represents a progress billing, (iv) is contingent upon such Loan Party’s completion of any further performance, (v) represents a sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment, cash-on-delivery or any other repurchase or return basis or (vi) relates to payments of interest (but only to the extent thereof);

(h)

for which the goods giving rise to such Account have not been shipped to the Account Debtor or for which the services giving rise to such Account have not been performed by such Loan Party or if such Account was invoiced more than once;

(i)

with respect to which any check or other instrument of payment has been returned uncollected for any reason;

(j)

which is owed by an Account Debtor which, to the knowledge of any Loan Party or Subsidiary thereof, has (i) applied for, suffered, or consented to the appointment of any receiver, custodian, trustee, administrative receiver, administrator, compulsory manager, liquidator or other similar officer of its assets, (ii) had possession of all or a material part of its property taken by any receiver, custodian, trustee, administrative receiver, administrator, compulsory manager, liquidator or other similar officer, (iii) filed, or had filed against it, any request or petition for liquidation, reorganization, arrangement, adjustment of debts, adjudication as bankrupt, administration, winding-up, or voluntary or involuntary case under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law (other than, in any such case, post-petition accounts payable of an Account Debtor that is a debtor-in-possession under the United States Bankruptcy Code and reasonably acceptable to the Administrative Agent), (iv) admitted in writing its inability, or is generally unable to, pay its debts as they become due or has had a moratorium declared in respect of it, (v) become insolvent, or (vi) ceased operation of its business;

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(k)

which is owed by any Account Debtor which, to the knowledge of any Loan Party or Subsidiary thereof, has sold all or a substantially all of its assets;

(l)

which is owed by an Account Debtor which (i) does not maintain its chief executive office in the U.S. or Canada, or, solely with respect to any Account Debtor of the German Loan Parties, in any Eligible European Jurisdiction or (ii) is not organized under applicable laws of the U.S., any state of the U.S., or, solely with respect to the German Loan Parties, any Eligible European Jurisdiction, unless, in any such case, such Account is backed by a letter of credit or bank guarantee reasonably acceptable to the Administrative Agent;

(m)

which is owed in any currency other than U.S. Dollars or Canadian Dollars, or, solely with respect to the German Loan Parties, Canadian Dollars, Sterling or Euro;

(n)

which is owed by (i) any Governmental Authority of any country other than the U.S. unless such Account is backed by a letter of credit or bank guarantee reasonably acceptable to the Administrative Agent or (ii) any Governmental Authority of the U.S., or any department, agency, public corporation, or instrumentality thereof, unless the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. and 41 U.S.C. § 15 et seq.), and any other steps necessary to perfect the Lien of the Administrative Agent in such Account have been complied with to the Administrative Agent’s satisfaction; provided that up to $10,000,000 (based on the face amount thereof) of such Accounts in the aggregate shall not be rendered ineligible pursuant to this cause (n);

(o)

which is owed by any Affiliate of any Loan Party or any employee, officer, director, agent or stockholder of any Loan Party or any of its Affiliates;

(p)

which is owed by an Account Debtor or any Affiliate of such Account Debtor to which any Loan Party is indebted, but only to the extent of such indebtedness, or is subject to any security, deposit, progress payment, retainage or other similar advance made by or for the benefit of an Account Debtor, in each case to the extent thereof;

(q)

which is subject to any counterclaim, deduction, defense, setoff or dispute (which shall include any current account arrangement (Kontokorrentabrede)), but only to the extent of any such counterclaim, deduction, defense, setoff or dispute;

(r)

which is evidenced by any promissory note, chattel paper or instrument;

(s)

which is owed by an Account Debtor which is a Sanctioned Person;

(t)

with respect to which such Loan Party has made any agreement with the Account Debtor for any reduction thereof, other than discounts and adjustments given in the ordinary course of business (but only to the extent of any such reduction), or any Account which was partially paid and such Loan Party created a new receivable for the unpaid portion of such Account;

(u)

which does not comply in all material respects with the requirements of all applicable laws and regulations, whether Federal, state, foreign, provincial or local, including the Federal Consumer Credit Protection Act, the Federal Truth in Lending Act and Regulation Z of the Federal Reserve Board;

(v)

unless the Administrative Agent has established a Reserve in its Permitted Discretion, which is for goods that have been sold under a purchase order or pursuant to the terms of a contract or other agreement or understanding (written or oral) that indicates or purports that any Person other than

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such Loan Party has or has had an ownership interest in such goods (including but not limited to by way of retention of title), or which indicates any party other than such Loan Party as payee or remittance party;

(w)

which was created on cash on delivery terms;

(x)

which is subject to any limitation on assignment or other restriction (whether arising by operation of law, by agreement or otherwise) which would under the local governing law of the contract have the effect of restricting the assignment for or by way of security or the creation of security, in each case, unless the Administrative Agent has determined that such limitation is not enforceable;

(y)

as to which the contract or agreement underlying such Account is governed by (or, if no governing law is expressed therein, is deemed to be governed by) the laws of any jurisdiction other than (i) in the case of Accounts owing to any Domestic Loan Party, the U.S., any state thereof or the District of Columbia or (ii) in the case of any German Loan Party, the U.S., any state thereof or the District of Columbia or any Eligible European Jurisdiction;

(z)

as to which the Administrative Agent in its Permitted Discretion determines may not be paid by reason of the Account Debtor’s inability to pay; or

(aa)

which is subject to any Factoring Agreement or any other receivables purchase agreement, factoring agreement, supply chain financing agreement or other similar agreement.

In the event that an Account of a Loan Party in excess of $2,500,000 which was previously an Eligible Account ceases to be an Eligible Account hereunder (other than due to payment) and any Loan Party or the Borrower Representative has knowledge of the same, such Loan Party or the Borrower Representative shall notify the Administrative Agent thereof on and at the time of submission to the Administrative Agent of the next Borrowing Base Certificate.  In determining the amount of an Eligible Account of a Loan Party, the face amount of an Account may, in the Administrative Agent’s Permitted Discretion, be reduced by, without duplication hereunder or under the foregoing eligibility criteria and to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that such Loan Party may be obligated to rebate to an Account Debtor pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by such Loan Party to reduce the amount of such Account.

Eligible Credit Insured Accounts” means, at any time, Accounts that would otherwise constitute Eligible Accounts and are fully backed by credit insurance reasonably acceptable to the Administrative Agent, naming the Administrative Agent as an additional insured and loss payee (calculated net of the amount of any premiums, deductibles, co-insurance, fees or similar costs of and amounts relating to such credit insurance payable by any Loan Party).

Eligible Equipment” means, at any time, the Equipment of any Loan Party which are not excluded as ineligible by virtue of one or more of the criteria set forth below. Eligible Equipment shall not include any Equipment that does not meet each of the following requirements:

(a)

such Loan Party has good title to such Equipment;

(b)

other than to the extent the Administrative Agent shall have established a Reserve in its Permitted Discretion for liabilities that secure any other Liens, such Equipment is subject to a first priority perfected Lien in favor of the Administrative Agent governed by the laws of the jurisdiction in which the

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Equipment in question is located and is free and clear of all other Liens of any nature whatsoever (except for Liens is permitted under Section 6.02(b), or  Permitted Encumbrances, in each case, which do not have priority over the Lien in favor of the Administrative Agent); provided, however, that Equipment subject to a certificate of title (such as, but not limited to, vehicles) shall constitute Eligible Equipment regardless of whether the Administrative Agent’s Lien has been noted on such certificate (except as set forth in Section 5.14);

(c)

the full purchase price for such Equipment has been paid by such Loan Party;

(d)

such Equipment (except for Specified Cranes that are leased to a customer of a Loan Party) is located on premises (i) owned by such Loan Party, which premises are subject to a first priority perfected Lien (subject to Permitted Encumbrances) in favor of the Administrative Agent, unless (x) such Loan Party shall have delivered to the Administrative Agent a Collateral Access Agreement or (y) such premises are owned by such Loan Party in fee title free and clear of any Liens (other than Permitted Encumbrances), or (ii) leased by such Loan Party where (x) the lessor has delivered to the Administrative Agent a Collateral Access Agreement or (y) a Reserve for rent, charges, and other amounts due or to become due with respect to such facility has been established by the Administrative Agent in its Permitted Discretion (provided, however, that no such Reserve pursuant to this clause (y) shall be established against such Equipment prior to the ninetieth (90th) day after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion));

(e)

such Equipment is in good working order and condition (ordinary wear and tear excepted) and is used or held for use by such Loan Party in the ordinary course of business of such Loan Party;

(f)

such Equipment (i) is not subject to any agreement which restricts the ability of such Loan Party to use, sell, transport or dispose of such Equipment or which restricts the Administrative Agent’s ability to take possession of, sell or otherwise dispose of such Equipment and (ii) has not been purchased from a Sanctioned Person;

(g)

such Equipment does not constitute “Fixtures” under the applicable laws of the jurisdiction in which such Equipment is located;

(h)

such Equipment is not a Specified Crane leased to a customer unless such Specified Crane is (x) in the case of Specified Cranes owned by Domestic Loan Parties, located in the U.S., and (y) in the case of Specified Cranes owned by German Loan Parties, located in Germany; or

(i)

such Equipment as to which the Administrative Agent has determined in its Permitted Discretion is not marketable for sale or lease.

Notwithstanding the foregoing, the Specified Cranes shall constitute Eligible Equipment so long as the Specified Cranes satisfy all of the criteria for Eligible Equipment set forth above, other than the Specified Cranes that may be Inventory and not Equipment.  In the event that Equipment of any Loan Party which was previously Eligible Equipment ceases to be Eligible Equipment hereunder (other than as a result of a sale or disposition) and any Loan Party or the Borrower Representative shall have knowledge of the same, such Loan Party or the Borrower Representative shall notify the Administrative Agent thereof on and at the time of submission to the Administrative Agent of the next Borrowing Base Certificate.

Eligible European Jurisdiction” means each of Austria, Belgium, Denmark, Finland, France, Germany, Italy, Ireland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland

17


 

and the United Kingdom, provided that the Administrative Agent may, in its Permitted Discretion, remove one or more of the countries comprising the Eligible European Jurisdictions and subsequently reinstate one or more removed countries back as Eligible European Jurisdictions.

Eligible Inventory” means, at any time, the Inventory (including raw materials and work-in-process) of any Loan Party which are not excluded as ineligible by virtue of one or more of the criteria set forth below (unless the inclusion of such Inventory is permitted in the Permitted Discretion of the Administrative Agent). Eligible Inventory of a Loan Party shall not include any Inventory:

(a)

which is not subject to a first priority perfected security interest in favor of the Administrative Agent, governed by the laws of the jurisdiction in which the Inventory in question is located;

(b)

which is subject to any Lien, unless such Lien constitutes (x) a Lien in favor of the Administrative Agent, (y) a Permitted Encumbrance which does not have priority over the Lien in favor of the Administrative Agent or (z) a Lien that is permitted under Section 6.02(b);

(c)

unless accounted for in the most recent Inventory appraisal when determining the Net Orderly Liquidation Value percentage, which is, in the Administrative Agent’s Permitted Discretion, obsolete, unmerchantable, defective, used, unfit for sale, not salable at prices approximating at least the cost of such Inventory in the ordinary course of business or unacceptable due to age, type, category and/or quantity;

(d)

with respect to which any covenant, representation or warranty contained in any Loan Document has been breached or is not true in any material respect (or, with respect to any covenant, representation or warranty which is subject to any materiality qualifier, has been breached or is not true in any respect) and which does not conform to all applicable standards imposed by any Governmental Authority;

(e)

in which any Person other than such Loan Party shall (i) have any direct or indirect ownership, interest or title or (ii) be indicated on any purchase order or invoice with respect to such Inventory as having or purporting to have an interest therein;

(f)

which is not finished goods or which constitutes spare or replacement parts, subassemblies, packaging and shipping material, manufacturing supplies, samples, prototypes, displays or display items, bill-and-hold or ship-in-place goods, goods that are returned or marked for return (unless undamaged and able to be resold in the ordinary course of business in an aggregate amount not to exceed $50,000,000), repossessed goods, defective or damaged goods, goods held by such Loan Party on consignment, or goods which are not of a type held for sale in the ordinary course of business;

(g)

which (i) if such Loan Party is a Domestic Loan Party, is not located in the U.S. or is in transit with a common carrier from vendors and suppliers or (ii) if such Loan Party is a German Loan Party, is not located in Germany or is in transit with a common carrier from vendors and suppliers; provided that, (x) the foregoing criteria shall not exclude Inventory in transit among Loan Parties located in the same country from being eligible and (y) notwithstanding the foregoing provisions of this clause (g), up to $5,000,000 of Inventory in transit from vendors and suppliers or among Loan Parties not located in the same country may be included as Eligible Inventory despite the foregoing provision of this clause (g) so long as:

(A)the Administrative Agent shall have received (1) a true and correct copy of the bill of lading and other shipping documents for such Inventory and (2)

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evidence of satisfactory casualty insurance naming the Administrative Agent as lender loss payee and otherwise covering such risks as the Administrative Agent may reasonably request;

(B)if the bill of lading is non-negotiable, the inventory must be in transit within the U.S. or Germany, and the Administrative Agent shall have received, if requested, a duly executed Collateral Access Agreement, in form and substance satisfactory to the Administrative Agent, from the applicable customs broker, freight forwarder or carrier for such Inventory;

(C) if the bill of lading is negotiable, the inventory must be in transit from outside the U.S. or Germany, and the Administrative Agent shall have received (1) confirmation that the bill is issued in the name of such Loan Party and consigned to the order of the Administrative Agent, and an acceptable agreement has been executed with such Loan Party’s customs broker, in which the customs broker agrees that it holds the negotiable bill as agent for the Administrative Agent and has granted the Administrative Agent access to the Inventory, (2) confirmation that such Loan Party has paid for the goods, and (3) an estimate from such Loan Party of the customs duties and customs fees associated with the Inventory in order to establish an appropriate Reserve;

(D)the common carrier is not an Affiliate of the applicable vendor or supplier; and

(E)the customs broker is not an Affiliate of any Loan Party;

(h)

which is located in any location leased by such Loan Party unless (A) (i) the lessor has delivered to the Administrative Agent a Collateral Access Agreement or (ii) a Reserve for rent, charges and other amounts due or to become due with respect to such facility has been established by the Administrative Agent in its Permitted Discretion (provided, however, that no such Reserve pursuant to this clause (ii) shall be established against any such Inventory prior to the ninetieth (90th) day after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion)) and (B) at least $250,000 of Inventory of the Loan Parties is located at such location;

(i)

which is located in any third party warehouse or is in the possession of a bailee (other than a third party processor), unless (i) such warehouseman or bailee has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as the Administrative Agent may require or (ii) an appropriate Reserve has been established by the Administrative Agent in its Permitted Discretion (provided, however, that no such Reserve pursuant to this clause (ii) shall be established against any such Inventory prior to the ninetieth (90th) day after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion));

(j)

which is being processed offsite at a third party location or outside processor, or is in-transit to or from such third party location or outside processor, unless (i) such processor has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as the Administrative Agent may require or (ii) an appropriate Reserve has been established by the Administrative Agent in its Permitted Discretion (provided, however, that no such Reserve pursuant to this clause (ii) shall be established against any such Inventory prior to the ninetieth (90th) day after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion));

(k)

which is a discontinued product or component thereof (unless such discontinuance does not adversely impact the salability of the remaining Inventory);

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(l)

which is the subject of a consignment by such Loan Party as consignor; provided that consigned Inventory may be eligible if the applicable consignee has delivered to the Administrative Agent a Collateral Access Agreement and such other documentation as the Administrative Agent may reasonably require;

(m)

which contains or bears any intellectual property rights licensed to such Loan Party by a third party, unless the Administrative Agent is satisfied in its Permitted Discretion that it may sell or otherwise dispose of such Inventory after the occurrence and during the continuance of an Event of Default in accordance with the terms of the Loan Documents, and, so long as the terms of the contract(s) pursuant to which such license is granted are binding on the applicable Loan Party, without, in any material respect, (i) infringing the rights of such licensor, or (ii) violating such contract with such licensor;

(n)

which is not reflected in a current perpetual inventory report of such Loan Party (unless such Inventory is reflected in a report to the Administrative Agent as “in transit” Inventory);

(o)

for which reclamation rights have been asserted by the seller;

(p)

which has been acquired from a Sanctioned Person;

(q)

for which (i) any contract or related documentation (such as invoices or purchase orders) relating to such Inventory includes retention of title rights in favor of the vendor or supplier thereof, (ii) under applicable governing laws, retention of title may be imposed unilaterally by the vendor or supplier thereof, provided that Inventory of a Loan Party which may be subject to any rights of retention of title shall not be excluded from Eligible Inventory solely pursuant to this clause (q) in the event that (A) the Administrative Agent shall have received evidence reasonably satisfactory to it that the full purchase price of such Inventory has or will have been paid or (B) a Letter of Credit has been issued under and in accordance with the terms of this Agreement for the purchase of such Inventory and (iii) the completion of, manufacture, sale or other disposition thereof by the Administrative Agent following an Event of Default requires the consent of any Person that has not been obtained and constitutes a breach or default under any contract or agreement to which the applicable Loan Party is a party or to which such Inventory is subject;

(r)

that is a Specified Crane;

(s)

which was not produced, in all material respects, in accordance with the Federal Fair Labor Standards Act of 1938, as amended, and all rules, regulations and orders thereunder; or

(t)

as to which the Administrative Agent has determined, in its Permitted Discretion, is ineligible, based on such credit and collateral determinations as the Administrative Agent may deem appropriate with respect to evaluating whether advancing against such asset is reasonably likely to result in a loss with respect to such advance; provided that, in making such determination, the Administrative Agent shall take into account the blended advance rates determined in the most appraisal; provided further that the Administrative Agent has delivered to the Borrower Representative notice and detail of such determination.

In the event that Inventory of any Loan Party in excess of $2,500,000 which was previously Eligible Inventory ceases to be Eligible Inventory hereunder (other than as a result of a sale or disposition), and any Loan Party or the Borrower Representative has knowledge of the same, such Loan Party or the Borrower Representative shall notify the Administrative Agent thereof on and at the time of submission to the Administrative Agent of the next Borrowing Base Certificate.

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Eligible Real Property means the Mortgaged Real Property owned by a Domestic Loan Party (i) that is acceptable in the sole discretion of the Administrative Agent for inclusion in the Domestic Borrowing Base, and (ii) in respect of which the deliveries required under Error! Reference source not found. have been delivered to the Administrative Agent.

Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to (i) the environment, (ii) preservation or reclamation of natural resources, (iii) the management, Release or threatened Release of any Hazardous Material or to (iv) health and safety matters as relates to Hazardous Materials.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) any violation of any applicable 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 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 by or imposed on the Company or any Restricted Subsidiary with respect to any of the foregoing.

Equipment” has the meaning assigned to such term in the applicable Security Agreement.

Equipment Amortization Factor” means, with respect to any Equipment on any date of determination, 1 minus a fraction, the numerator of which is the number of full fiscal quarters of the Company elapsed as of such date (including any such fiscal quarter ending on such date) since March 31, 2019 (or, if later, the date of the Administrative Agent’s receipt of the results of the most recent completed appraisal of such Equipment conducted at the request of the Loan Parties pursuant to Section 5.11 hereof) and the denominator of which is 28.

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, but excluding any debt securities convertible into any of the foregoing; provided that “Equity Interests” shall not include Indebtedness that is convertible (but has not yet been converted) into Equity Interests.

Equity Offering” means any public or private sale or issuance of Qualified Capital Stock of the Company, other than (i) public offerings with respect to the Company’s common stock on Form S-8 and (ii) issuances to any Subsidiary of the Company.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with any Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or Section 4001(14) of ERISA 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

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the Code or Section 302 of ERISA), whether or not waived, with respect to any Plan; (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 Borrower 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 Borrower 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 Borrower or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal of any Borrower or any ERISA Affiliate from any Plan or Multiemployer Plan; or (g) the receipt by any Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from any Borrower or any ERISA Affiliate of any notice of the imposition upon any Borrower or any ERISA Affiliate of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in critical status, within the meaning of Title IV of ERISA.

Establishment” means, in respect of any Person, any place of operations where such Person carries out a non-transitory economic activity with human means and goods, assets or services.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.  

Euro” or “” means the single currency of the Participating Member States.

Eurodollar”, when used in reference to a Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to the Adjusted LIBO Rate.

Eurodollar Payment Office” of the Administrative Agent shall mean, for each Foreign Currency, the office, branch, affiliate or correspondent bank of the Administrative Agent for such currency as specified from time to time by the Administrative Agent to the Company and each Lender.

Event of Default” has the meaning assigned to such term in Article VII.

Exchange Rate” means, on any day, with respect to any Foreign Currency, the rate at which such Foreign Currency may be exchanged into U.S. Dollars, as set forth at approximately 11:00 a.m., Local Time, on such date on the Reuters World Currency Page for such Foreign Currency.  In the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate with respect to such Foreign Currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent or, in the event no such service is selected, such Exchange Rate shall instead be calculated on the basis of the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for such Foreign Currency on the London market at 11:00 a.m., Local Time, on such date for the purchase of U.S. Dollars with such Foreign Currency, for delivery two (2) Business Days later; provided that, if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation with the Borrower Representative, may use any reasonable method it deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.

Excluded Accounts” has the meaning assigned to such term in the definition of the term “Excluded Assets”.

Excluded Assets” means (a) any lease, license, contract, document, instrument or agreement to which any Loan Party is a party, to the extent that the creation of a Lien on such assets would, (i) under the express terms of such lease, license, contract, document, instrument or agreement, result in a breach of

22


 

the terms of, create a right of termination in favor of any other party thereto (other than the Loan Parties or any of their Restricted Subsidiaries), or constitute a default or violation under, such lease license, contract, document, instrument or agreement (other than to the extent that any such term (x) has been waived (without any obligation on the Loan Parties to obtain such waiver) or (y) would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law) or (ii) require governmental or regulatory, consent, or authorization not obtained (without any requirement to obtain such approval, consent or authorization); provided that, immediately upon the ineffectiveness, lapse or termination of any such express term or such Governmental Authority has otherwise expressly consented in writing to the creation of a Lien hereunder, such assets shall automatically cease to constitute Excluded Assets, (b) any property that is subject to a purchase money Lien or a financing or capital lease permitted under the Loan Documents if the agreement pursuant to which such Lien is granted (or in the document providing for such financing or capital lease) prohibits or requires the consent of any Person other than any Borrower and/or its Affiliates which has not been obtained (without any obligation on the Loan Parties to obtain such consent) as a condition to the creation of any other Lien on such property, (c) any leasehold interests in real property and improvements and Fixtures thereon, (d) subject to Section 5.14(j), any Non-Mortgaged Real Property (and improvements and Fixtures relating thereto), (e) payroll accounts, trust accounts, employee benefit accounts and zero-balance disbursement accounts (that are not collection accounts) and other deposit accounts (that are not collection accounts) with an aggregate amount on deposit therein of not more than $500,000 at any one time for all Loan Parties (provided that the amount on deposit in any individual deposit account for such deposit account to constitute “Excluded Assets” pursuant to the foregoing de minimis threshold must be less than $100,000 at all times) (such accounts, collectively, the “Excluded Accounts”), (f) any application for registration of a Trademark filed in the U.S. Patent and Trademark Office on the basis of the applicant's intent-to-use such Trademark pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, unless and until evidence of use has been filed with the U.S. Patent and Trademark Office pursuant to Section 1(d) of the Lanham Act or Section 1(c) of the Lanham Act (15 U.S.C.  §1051, et seq.) with respect thereto, solely to the extent, if any, that and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of any such Trademark application or the registration that issues from such application under applicable federal law, (g) any asset or property of Unrestricted Subsidiaries and Excluded Subsidiaries, (h) other than with respect to the Secured Obligations of the German Loan Parties, any Equity Interests in or assets of (A) a direct or indirect Foreign Subsidiary of the Company or a CFC Holding Company, except that Excluded Assets shall not include 65% of the outstanding voting Equity Interests and 100% of the non-voting Equity Interests of each such First Tier Foreign Subsidiary or CFC Holding Company, provided, however, that no more than 65% of the voting Equity Interests of a First Tier Foreign Subsidiary or CFC Holding Company, as applicable, in the aggregate, may be pledged to secure the Secured Obligations or (B) a direct or indirect Subsidiary of a CFC, (i) any aircraft, (j) any other property, to the extent the granting of a Lien therein is prohibited by any Requirement of Law (other than to the extent that such prohibition would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, 9-409 or other applicable provisions of the UCC of any relevant jurisdiction or any other applicable law), (k) any assets if and for so long as the burden or cost (including any adverse Tax consequences) of obtaining a security interest therein or perfection thereof exceeds the practical benefits to the Secured Parties afforded thereby as reasonably determined between the Borrower Representative and the Administrative Agent, (l) any governmental or regulatory licenses, authorizations, permits, approvals and consents to the extent a security interest therein is prohibited or restricted thereby or requires any consent or authorization from a Governmental Entity not obtained (without any requirement to obtain such consent or authorization), (m) Equity Interests in any joint venture to the extent a pledge thereof is not permitted by the terms of the applicable joint venture or similar agreements and documents; provided that, immediately upon the ineffectiveness, lapse or termination of any such prohibitions, such assets shall automatically cease to constitute Excluded Assets), (n) margin stock and (o) accounts receivable sold under any Factoring Agreement permitted hereunder; provided further that (x) Excluded Assets shall not include any

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proceeds, products, substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Assets) and (y) the foregoing exclusions shall not apply to any asset or property of the Company and its Subsidiaries on which a Lien has been granted to secure any obligations under any Junior Indebtedness.

Excluded Subsidiary” means a Subsidiary that is not a German Loan Party and is (A) a direct or indirect Subsidiary of a CFC or CFC Holding Company, (B) a CFC or a CFC Holding Company, (C) non-wholly owned, (D) a captive insurance company, (E) a not-for-profit or special purpose entity, (F) a Subsidiary to the extent the cost of obtaining a guarantee by such Subsidiary (including adverse tax consequences) outweighs the benefit afforded thereby as reasonably determined by the Administrative Agent and the Borrower Representative, (G) is not a Material Restricted Subsidiary, (H) an Unrestricted Subsidiary and (I) a Subsidiary to the extent the provision of a guarantee is otherwise prohibited by Requirements of Law (including financial assistance, fraudulent conveyance, preference, thin capitalization or other similar laws or regulations) or regulations or contractual provisions existing on the Effective Date (or, if later, on the date such Person becomes a Subsidiary, if not entered into in contemplation thereof).

Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party 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 Loan Party’s failure for any reason to constitute an ECP at the time the Guarantee of such Loan Party 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, being a resident for the purposes 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, and German withholding Taxes (excluding German withholding Taxes imposed on payments of interest to a Recipient with respect to which the applicable Recipient fulfills the conditions relating to that Recipient to be entitled to claim a full exemption from Tax imposed by Germany on interest under an income Tax treaty subject to completing the applicable procedural formalities) imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case 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), (d) any withholding Taxes imposed under FATCA, (e) any VAT for which Section 2.17(h) applies and (f) any German Taxes levied due to the fact that any Secured Obligations is secured (directly or indirectly) by real estate located in Germany (inländische Grundstücke) or domestic rights treated as real property under German civil law (inländische Rechte, die den Vorschriften des Bürgerlichen Rechts über Grundstücke unterliegen).

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Existing Credit Agreement means that certain Credit Agreement, dated as of March 3, 2016, by and among the Company, the other loan parties party thereto, the financial institutions party thereto as lenders and Wells Fargo Bank, National Association, as administrative agent.

 

Existing Junior Secured Notes” means the senior secured notes issued under that certain Indenture dated as of February 18, 2016, among the Company, as successor by merger to MTW Cranes Escrow Corp., as issuer, the guarantors from time to time party thereto, and Wells Fargo Bank, National Association, as trustee and collateral agent, as it may be amended, supplemented or otherwise modified prior to the date hereof.

Existing Letters of Credit” means the letters of credit issued under the Existing Credit Agreement described on Schedule 1.01(c) hereto.

 

Extenuating Circumstance” means any period during which the Administrative Agent has determined in its sole discretion (i) that due to unforeseen and/or nonrecurring circumstances, it is impractical and/or not feasible to submit or receive a Borrowing Request or Interest Election Request by email or fax or through Electronic System, and (ii) to accept a Borrowing Request or Interest Election Request telephonically.

 

Factor” means, collectively, one or more purchasers of receivables under a Factoring Agreement.

Factoring Agreement” means one or more receivables purchase agreements (or similar agreements) entered into by a Foreign Subsidiary of the Company (other than a German Restricted Subsidiary) with one or more Factors, as the same may be amended, modified, supplemented and/or replaced from time to time so long as any such replacement agreement is on terms no less favorable to the Company or its Restricted Subsidiaries that are in any material respect than those terms set forth in the Factoring Agreements as in effect on the Effective Date.

 

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 and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

FCCR Test Period” means any period (a) commencing on the last day of the most recent period of four consecutive fiscal quarters of the Company 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)) on or prior to the date Aggregate Availability is less than the greater of (x)10% of the Line Cap and (y) $20,000,000 at any time and (b) ending on the first day after Aggregate Availability has exceeded the greater of (x) 10% of the Line Cap and (y) $20,000,000 for sixty (60) consecutive days.

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 effective federal funds rate, provided that, if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.  

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Federal Reserve Board means the Board of Governors of the Federal Reserve System of the U.S.

FEMA” means the Federal Emergency Management Agency (or any successor agency).

Field Exam and Appraisal Period” means any period of time (a) commencing with the date on which the Aggregate Availability is less than the greater of (x) 12.5% of the Line Cap and (y) $25,000,000 at any time and (b) ending on the first day after Aggregate Availability has exceeded the greater of (x) 12.5% of the Line Cap and (y) $25,000,000 for sixty (60) consecutive days.

Financial Officer” means the chief financial officer, principal accounting officer, treasurer, regional treasurer or controller of the Company.  

Financing Lease Obligation” means an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP.  At the time any determination thereof is to be made, the amount of the liability in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP.

First Tier Foreign Subsidiary” means each Foreign Subsidiary with respect to which the Company, any Domestic Subsidiary and/or any CFC Holding Company described in clause (b) of the definition thereof, directly owns or Controls more than 50% of such Foreign Subsidiary’s issued and outstanding Equity Interests.

Fixed Charge Coverage Ratio means, for any period, the ratio of (a) EBITDA minus Unfinanced Capital Expenditures to (b) Fixed Charges, all calculated for the period of four consecutive fiscal quarters 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), all calculated for the Company and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP.

Fixed Charges” means, for any period, without duplication, cash Interest Expense, plus scheduled principal payments on Indebtedness actually made (for the avoidance of doubt, other than prepayments and repayments of the Revolving Loans), plus expenses for Taxes paid in cash, plus, solely for purposes of determining satisfaction of the Payment Conditions, Restricted Payments paid in cash (other than Restricted Payments made by any Loan Party or any Subsidiary of a Loan Party to any Loan Party that subsequently distributes the proceeds of such Restricted Payments to one or more Loan Parties), plus Financing Lease Obligation payments, plus quarterly reductions in the Domestic PP&E Component pursuant to clauses (a)(i) and (a)(ii) of the definition thereof during such period, plus, quarterly reductions in the German PP&E Component pursuant to clause (a) of the definition thereof during such period, all calculated for the Company and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP.

Fixtures” has the meaning assigned to such term in the applicable Security Agreement.

Flood Laws” means the National Flood Insurance Reform Act of 1994 and related legislation.

Foreign Currencies” means Agreed Currencies other than U.S. Dollars.

Foreign Lender” means (a) if a Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person, and (b) if a Borrower is not a U.S. Person, a Lender, with respect to

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such Borrower, that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for Tax purposes.

Foreign Pension Plan” means any pension plan, pension undertaking, supplemental pension, retirement savings or other retirement income plan, obligation or arrangement or any kind that is not subject to U.S. law and that is established, maintained or contributed to by any Loan Party or any of its Subsidiaries or Affiliates in respect of which any Loan Party or any of its Subsidiaries or Affiliates has any liability, obligation or contingent liability.

Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.

Funding Account” has the meaning assigned to such term in Section 4.01(a).

GAAP” means generally accepted accounting principles in the U.S.

German Borrower” means Manitowoc Crane Group Germany GmbH, a German limited liability company (Gesellschaft mit beschränkter Haftung).

German Borrower LC Exposure” means, at any time, the sum of (a) the aggregate undrawn U.S. Dollar Amount of all outstanding German Letters of Credit at such time plus (b) the aggregate U.S. Dollar Amount of all LC Disbursements in respect of German Letters of Credit that have not yet been reimbursed by or on behalf of the Borrowers at such time.  The German Borrower LC Exposure of any Lender at any time shall be its Percentage of the total German Borrower LC Exposure at such time.

German Borrower Swingline Exposure” means, at any time, the U.S. Dollar Amount of the aggregate principal amount of all outstanding German Swingline Loans that the Lenders have purchased participations in pursuant to the terms hereof.  The German Borrower Swingline Exposure of any Lender at any time shall be its Percentage of the total German Borrower Swingline Exposure at such time.

German Borrowing” means a Borrowing comprised of German Revolving Loans.

German Borrowing Base” means, at any time, the sum of (a) 85% of the Eligible Accounts (excluding any Eligible Credit Insured Accounts) of the German Borrower at such time, plus (b) without duplication of other Eligible Accounts, 90% of the Eligible Credit Insured Accounts of the German Borrower at such time, plus (c) the lesser of (i) 75% of the Eligible Inventory of the German Borrower at such time and (ii) the product of 85% of the Net Orderly Liquidation Value multiplied by the Eligible Inventory of the German Borrower at such time, valued at the lower of cost or market value, determined on a first-in-first-out basis plus (c) the German PP&E Component at such time in an aggregate amount not to exceed 25% of the aggregate German Borrowing Base at such time minus (d) Reserves pertaining to the German Borrower (without duplication of any Reserves accounted for in the German PP&E Component), such Eligible Accounts, such Eligible Credit Insured Accounts or such Eligible Inventory.  The German Borrowing Base at any time shall be determined by reference to the most recent applicable Borrowing Base Certificate delivered to the Administrative Agent pursuant to Section 4.01(j) or 5.01(f), subject to adjustments for changes to, or implementation of, Reserves established by the Administrative Agent in its Permitted Discretion as provided herein.

German Collateral” has the meaning assigned to such term in Section 8.07(d).

German Collateral Documents” means the German Security Agreements and each other pledge agreement, security agreement, or other collateral agreement (including each intellectual property right security transfer and assignment agreement) that is entered into by any German Loan Party (or any share

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pledge with respect to the shares of any German Loan Party) in favor of the Administrative Agent, securing the German Secured Obligations, in each case, entered into pursuant to the terms of this Agreement or any other Loan Document (including Section 5.14).

German GAAP” means generally accepted accounting principles in Germany.

German Guaranty Limitations” means Section 11.14 of this Agreement.

German Holdings” means Manitowoc Crane Group Holding Germany GmbH.

German Insolvency Event” means:

(a)

a German Relevant Entity is unable or admits its inability to pay its debts as they fall due or is deemed to or declared to be unable to pay its debts under applicable law, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness, including a stoppage of payment situation (Zahlungsunfähigkeit), a status of over‑indebtedness (Überschuldung), the presumed inability to pay its debts as they fall due (drohende Zahlungsunfähigkeit), or actual insolvency proceedings;

(b)

a moratorium is declared in respect of any Indebtedness of a German Relevant Entity;

(c)

(i) such German Relevant Entity is otherwise in a situation to file for insolvency because of any of the reasons set out in Sections 17 to 19 of the German Insolvency Code and (ii) a petition for insolvency proceedings in respect of its assets (Antrag auf Eröffnung eines insolvenzverfahrens) has been filed based on Sections 17 to 19 of the German Insolvency Code (Insolvenzordnung); or

(d)

any procedure or step analogous to the foregoing taken in any jurisdiction;

provided that, this definition shall not apply to any insolvency petition which is frivolous or vexatious and is discharged, stayed or dismissed within fourteen (14) days of notice thereof to any German Relevant Entity becoming aware of the same.

German Letter of Credit” means any Letter of Credit issued for the account of the German Borrower under the Commitments pursuant to this Agreement.

German Loan Parties” means, collectively, the German Borrower, German Holdings and each Material German Restricted Subsidiary or other Person that is organized under the laws of Germany and guarantees the German Secured Obligations or becomes a party to a German Security Agreement pursuant to Section 5.14.

German PP&E Component” means, at the time of any determination, an amount equal to (a) the sum of the following amounts calculated for each item of Eligible Equipment of the German Borrower: the applicable Equipment Amortization Factor for such Eligible Equipment multiplied by 85% of the Net Orderly Liquidation Value of such Eligible Equipment less (b) Reserves applicable to the German PP&E Component and, without duplication of Reserves set forth in clause (d) of the definition of “German Borrowing Base,” the German Borrower and established by the Administrative Agent in its Permitted Discretion.

German Relevant Entity” means any German Loan Party or any Loan Party capable of becoming the subject of insolvency proceedings under the German Insolvency Code (Insolvenzordnung).

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German Restricted Subsidiary means any Restricted Subsidiary that is organized under the laws of Germany.  

German Revolving Exposure” means, with respect to any Lender at any time, and without duplication, the sum of (a) the U.S. Dollar Amount of the outstanding principal amount of such Lender’s German Revolving Loans plus (b) the U.S. Dollar Amount of such Lender’s German Borrower LC Exposure plus (c) the U.S. Dollar Amount of such Lender’s German Borrower Swingline Exposure plus the (d) U.S. Dollar Amount of such Lender’s Applicable Percentage of the aggregate principal amount of Protective Advances to the German Borrower outstanding at such time.

German Revolving Loan” means a Loan made by a Lender to the German Borrower pursuant to Section 2.01.

German Secured Obligations” means all Secured Obligations of the German Loan Parties arising under the Loan Documents.  For the avoidance of doubt, the German Secured Obligations exclude all Secured Obligations of the Domestic Loan Parties.

German Security Agreements” means, collectively, any (a) global assignment agreement between a German Loan Party as assignor and the Administrative Agent as assignee, regarding the assignment of trade receivables, insurance claims and/or intra-group receivables, (b) security transfer agreement between a German Loan Party as transferor and the Administrative Agent as transferee, regarding the security transfer of title of inventory and machinery, and (c) account pledge agreement between a German Loan Party as pledgor and the Administrative Agent as pledgee, regarding the pledge over certain bank accounts that, in each case, is governed by the laws of Germany.

German Sublimit” means an amount equal to $75,000,000, as such sublimit may be increased from time to time pursuant to Section 2.09(e).

German Subsidiary means a Subsidiary organized under the laws of Germany.

German Swingline Loan” has the meaning assigned to such term in Section 2.05.

Germany” means the Federal Republic of Germany.

Governmental Authority” means the government of the U.S., any other nation or any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity (including any European supranational body) exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including the European Central Bank and the Council of Ministers of the European Union.

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

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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.  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.

Guaranteed Obligations” has the meaning assigned to such term in Section 10.01 or 11.01, as the case may be.

Guarantor Payment” has the meaning assigned to such term in Section 10.11(a).

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.

Impacted Interest Period” has the meaning assigned to such term in the definition of “LIBO Rate”.

Improved Mortgaged Real Property” means any Mortgaged Real Property that constitutes “improved real property” or on which any “building” (in each case, as defined in the Flood Laws) is located.

Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) deferred compensation, trade payables and accrued expenses incurred in the ordinary course of business, (ii) earnout obligations contingent on the performance of an acquired business except as provided in clause (k) below and (iii) royalty payments payable in the ordinary course of business in respect of non-exclusive licenses), (e) 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; provided that the amount of such Indebtedness will be the lesser of (x) the fair market value of such property as determined by such Person in good faith at such time and (y) the amount of such Indebtedness, (f) all Guarantees by such Person of Indebtedness of others, (g) all Financing Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers' acceptances, (j) obligations under any earnout that has become a liability on the balance sheet of such Person in accordance with GAAP without giving effect to footnotes thereto and (k) 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, and (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction, in each case, to the extent required to be shown as a liability on the balance sheet of such Person in

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accordance with GAAP. 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. Notwithstanding anything to the contrary in the foregoing, the term “Indebtedness” shall not include (i) licenses and operating leases or (ii) accrued and unpaid interest, premium, fees or expenses unless capitalized in accordance with the terms of the applicable agreements governing the applicable Indebtedness.

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made or required to be 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.

Insolvency Event” has the meaning assigned to such term in Article XIII.

Intercompany Indebtedness” has the meaning assigned to such term in Article XIII.

Interest Election Request” means a request by the Borrower Representative to convert or continue a Revolving Borrowing in accordance with Section 2.08.

Interest Expense” means, for any period, the sum of, without duplication:

(a)

the aggregate of the interest expense, net of interest income, with respect to outstanding Indebtedness for such period (including, (a) the net amortization of original issue discount and original issuance premium from the issuance of Indebtedness; (b) the net costs under Swap Obligations with respect to Indebtedness; (c) all capitalized interest; and (d) all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing), but excluding (i) amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses, (ii) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (iii) non cash interest expense attributable to the movement of the mark to market valuation of Indebtedness or obligations under Swap Obligations or other derivative instruments pursuant to FASB Accounting Standards Codification Topic 815—Derivatives and Hedging, (iv) any one time cash costs associated with breakage in respect of hedging agreements for interest rates, (v) commissions, discounts, yield, make whole premium and other fees and charges (including any interest expense) incurred in connection with any Factoring Agreements, (vi) any “additional interest” owing pursuant to a registration rights agreement with respect to any securities, (vii) any payments with respect to make whole premiums or other breakage costs of any Indebtedness, (viii) penalties and interest relating to taxes, (ix) accretion or accrual of discounted liabilities not constituting Indebtedness, (x) interest expense attributable to a direct or indirect parent entity resulting from push down accounting and (xi) any interest expense attributable to the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto and with respect to any acquisition or Investment permitted hereunder; and

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(b)

the interest component of financing lease obligations paid, accrued or scheduled to be paid or accrued during such period;

all calculated for the Company and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP.

Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline Loan) or Overnight LIBO Rate Loan, the first Business Day of each calendar month and the Maturity Date and (b) with respect to any Eurodollar Loan, the last day of each 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 and (c) with respect to any Swingline Loan, the day that such Swingline Loan is required to be repaid 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 or six months (or, with the consent of each Lender, twelve months) thereafter, as the Borrower Representative 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, in the case of a Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the immediately 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 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, in the case of a Revolving Borrowing, 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 for the applicable currency) 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 for the applicable currency) that exceeds the Impacted Interest Period, in each case, at such time; provided, that if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Inventory” has the meaning assigned to such term in the applicable Security Agreement.

Investment” has the meaning assigned to such term in Section 6.04.

IRS” means the United States Internal Revenue Service.

Issuing Bank” means, individually and collectively, (a) as of the Effective Date, each of JPMorgan Chase Bank, N.A., Bank of America, N.A. and Bank of Montreal, each in its capacity as an issuer of Letters of Credit and (b) any other Lender from time to time designated by the Borrower Representative as an Issuing Bank, with the consent of such Lender and the Administrative Agent, and their respective successors in such capacity as provided in Section 2.06(i).  Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by its Affiliates, in which case the term

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Issuing Bank shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.  At any time there is more than one Issuing Bank, all singular references to the Issuing Bank shall mean any Issuing Bank, either Issuing Bank, each Issuing Bank, the Issuing Bank that has issued the applicable Letter of Credit, or both (or all) Issuing Banks, as the context may require.

Issuing Bank Sublimit means, as of the Effective Date, (i) $25,000,000, in the case of each of JPMorgan Chase Bank, N.A., Bank of America, N.A. and Bank of Montreal, each in its capacity as an Issuing Bank, and (ii) as of the date any Lender is designated as an Issuing Bank, such amount as shall be designated to the Administrative Agent and the Borrower Representative in writing by another Issuing Bank.  Each Issuing Bank’s Issuing Bank Sublimit may be decreased or increased from time to time with the written consent of the Company and such Issuing Bank.

Joinder Agreement” means a Joinder Agreement in substantially the form of Exhibit D and/or such other joinder form reasonably acceptable to the Administrative Agent and the Borrower Representative.

JPMCB” means JPMorgan Chase Bank, N.A., a national banking association, in its individual capacity, and its successors.

Junior Indebtedness” means, as applicable, the Indebtedness incurred pursuant to the Junior Notes or a Permitted Term Loan Agreement and any Additional Junior Indebtedness.

Junior Indebtedness Amount” means an aggregate principal amount equal to the sum of:

(x)

$300,000,000; plus

(y)

an additional unlimited amount; provided that the Fixed Charge Coverage Ratio computed on a Pro Forma Basis as of the last day of the most recent four fiscal quarter period of the Company for which financial statements have been delivered pursuant to Section 5.01 (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01, the most recent financial statements referred to in Section 3.04(a)), shall be greater than 1.1 to 1.0.

Junior Intercreditor Agreement” means, as applicable, the Junior Notes Intercreditor Agreement, or any other intercreditor agreement entered into in connection with any Junior Indebtedness, by and among the Administrative Agent, the other creditors party thereto, and each of the Loan Parties party thereto, in form and substance reasonably acceptable to the Administrative Agent.

Junior Notes” means the notes issued under the Junior Notes Indenture.

Junior Notes Indenture” means that certain Indenture dated as of the date hereof, among the Company, as issuer, the guarantors from time to time party thereto, and U.S. Bank National Association, as trustee, collateral agent and paying agent, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms of the Junior Notes Intercreditor Agreement.

Junior Notes Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, between the Administrative Agent, and U.S. Bank National Association, as collateral agent, under the Junior Notes, and acknowledged and consented to by the Company and each other Loan Party, as it may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.

LC Collateral Account” has the meaning assigned to such term in Section 2.06(j).

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LC Disbursement means a payment made by the Issuing Bank pursuant to a Letter of Credit.

LC Exposure” means, at any time, the sum of (a) the aggregate undrawn U.S. Dollar Amount of all outstanding Letters of Credit at such time plus (b) the aggregate U.S. Dollar Amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrowers at such time.  The LC Exposure of any Lender at any time shall be its Percentage of the total LC Exposure at such time.

Lead Arranger” means JPMorgan Chase Bank, N.A., in its capacity as sole lead arranger for the credit facility evidenced by this Agreement.

Leased Properties” has the meaning assigned to such term in Section 3.05(b).

Lenders” means the Persons listed on the Commitment Schedule and any other Person that shall have become a Lender hereunder pursuant to Section 2.09 or an Assignment and Assumption or otherwise, other than any such Person that ceases to be a Lender hereunder pursuant to an Assignment and Assumption or otherwise.  Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender and the Issuing Bank.

Letter of Credit Agreement” has the meaning assigned to such term in Section 2.06(b).

Letter of Credit Currency” means each Agreed Currency.

Letters of Credit” means the letters of credit or bank guarantees issued pursuant to this Agreement, and the term “Letter of Credit” means any one of them or each of them singularly, as the context may require and shall include the Existing Letters of Credit.

LIBO Rate” means, with respect to any Eurodollar Borrowing for any applicable Interest Period or for any ABR Borrowing, the LIBO Screen Rate at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period (or, with respect to any Eurodollar Borrowing denominated in Sterling, at approximately 11:00 a.m., London time, on the first day 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, subject to Section 2.14 in the event that the Administrative Agent shall conclude that it shall not be possible to determine such Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error).  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 or for any ABR Borrowing, (a) with respect to such Borrowings denominated in any Agreed Currency, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for such Agreed Currency) for the relevant currency for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event the applicable 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 as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.

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Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge, assignment by way of security or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, financing or 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.

Limited Condition Acquisition” means any Permitted Acquisition the consummation of which is not conditioned upon the availability of, or on obtaining, third party financing or in connection with which any fee or expense would be payable by a Borrower or its Subsidiaries to the seller or target in the event financing to consummate the acquisition is not obtained as contemplated by the Limited Condition Acquisition Agreement.

Limited Condition Acquisition Agreement” means, with respect to any Limited Condition Acquisition, the definitive acquisition documentation in respect thereof.

Limited Condition Transaction” means each of (i) any Limited Condition Acquisition, (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment and (iii) any disposition pursuant to Section 6.05.

Line Cap” means, at any time, the lesser of (a) the Aggregate Borrowing Base and (b) the Aggregate Commitment.

Loan Documents” means, collectively, this Agreement, each Joinder Agreement, any promissory notes issued pursuant to this Agreement, any Letter of Credit Agreement, the Collateral Documents, the Loan Guaranty, any Junior Intercreditor Agreement or other intercreditor agreement and all other agreements, instruments, documents and certificates executed and delivered by a Loan Party to, or in favor of, the Administrative Agent or any Lender or Issuing Bank pursuant to the transactions contemplated hereby (excluding Swap Agreements and agreements evidencing Banking Services Obligations or Designated Secured Foreign Products Obligations).  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, and shall include each Domestic Loan Party in the case of Article X and each German Loan Party in the case of Article XI.

Loan Guaranty” means, collectively, Articles X and XI of this Agreement and, if applicable, each separate Guarantee, in form and substance reasonably satisfactory to the Administrative Agent, delivered by each Loan Guarantor that is a German Restricted Subsidiary (which Guarantee shall be governed by the laws of Germany).

Loan Parties” means, collectively, the Domestic Loan Parties and the German Loan Parties.

Loans” means the loans and advances made by the Lenders pursuant to this Agreement, including Swingline Loans and Protective Advances.

Local Time” means (i) New York City time in the case of a Loan, Borrowing or LC Disbursement denominated in U.S. Dollars and (ii) local time in the case of a Loan, Borrowing or LC

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Disbursement denominated in a Foreign Currency (it being understood that such local time shall mean London, England time unless otherwise notified by the Administrative Agent).

Management Notification” has the meaning assigned to such term in Section 11.14(c).

Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations, or financial condition of the Company and its Subsidiaries taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to perform any of their payment obligations under the Loan Documents, (c) the Collateral, or the Administrative Agent’s Liens (on behalf of itself and other Secured Parties) on the Collateral or the priority of such Liens, or (d) the rights of or benefits available to the Administrative Agent, the Issuing Bank or the Lenders under any of the Loan Documents.

Material Domestic Restricted Subsidiary” means each Domestic Restricted Subsidiary that (a) as of the most recent fiscal quarter of the Company, 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)), (i) contributed greater than five percent (5%) of EBITDA for such period or (ii) contributed greater than five percent (5%) of Total Assets as of such date and/or (b) is a guarantor of any Junior Indebtedness; provided that, if at any time the aggregate amount of EBITDA or Total Assets attributable to all Domestic Restricted Subsidiaries that are not Material Domestic Subsidiaries exceeds five percent (5%) of EBITDA for any such period or five percent (5%) of Total Assets as of the end of any such fiscal quarter, the Borrower Representative (or, in the event the Borrower Representative has failed to do so within ten (10) Business Days, the Administrative Agent) shall designate sufficient Domestic Restricted Subsidiaries as “Material Domestic Restricted Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material Domestic Restricted Subsidiaries; provided further that the Borrower Representative may at any time designate any Subsidiary as a Material Domestic Restricted Subsidiary in its sole discretion, even if not required to satisfy the foregoing.

Material German Restricted Subsidiary” means each German Restricted Subsidiary (a) that is a guarantor of any Junior Indebtedness, and/or (b) each German Restricted Subsidiary (i) which, as of the most recent fiscal quarter of the Company, 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 EBITDA for such period or (ii) which contributed greater than five percent (5%) of Total Assets as of such date; provided that, if at any time the aggregate amount of EBITDA or Total Assets attributable to all German Restricted Subsidiaries that are not Material German Restricted Subsidiaries exceeds five percent (5%) of EBITDA for any such period or five percent (5%) of Total Assets as of the end of any such fiscal quarter, the Borrower Representative (or, in the event the Borrower Representative has failed to do so within ten (10) Business Days, the Administrative Agent) shall designate sufficient German Restricted Subsidiaries as “Material German Restricted Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all purposes of this Agreement constitute Material German Restricted Subsidiaries; provided further that the Borrower Representative may at any time designate any Subsidiary as a Material German Restricted Subsidiary in its sole discretion, even if not required to satisfy the foregoing.

Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrowers or any Restricted Subsidiary in an aggregate principal amount exceeding $30,000,000.  For purposes of determining Material Indebtedness, the “principal amount” of the obligations of any Borrower or any

36


 

Restricted Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Borrower or Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

Material Restricted Subsidiary” means a Material Domestic Restricted Subsidiary or a Material German Restricted Subsidiary, as applicable.

Maturity Date” means March 25, 2024, or any earlier date on which the Commitments are reduced to zero or otherwise terminated pursuant to the terms hereof; provided however, in each case, if such day is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.

Maximum Liability” has the meaning assigned to such term in Section 10.10 and 11.11, as applicable.

Maximum Rate” has the meaning assigned to such term in Section 9.17.

MIRE Event means, if there are any Mortgaged Real Properties at such time, any increase, extension or renewal of any of the Commitments or Loans (including any incremental credit facilities pursuant to Section 2.09 or otherwise, but excluding (i) any continuation or conversion of Borrowings, (ii) the making of any Loan or (iii) the issuance, renewal or extension of Letters of Credit).

Moody’s” means Moody’s Investors Service, Inc.

Mortgage” means any mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, including any amendment, restatement, modification or supplement thereto, together with any other related forms or documents that are required or customary to effect the recording of such mortgage or deed of trust, in each case, in form and substance reasonably satisfactory to the Administrative Agent.

Mortgaged Real Property” means the real property set forth on Schedule 3.05(a) (as may be updated following the Effective Date pursuant to Section 5.14(j)), each of which is or shall be subject to a Mortgage pursuant to the terms of this Agreement.

Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Income” means, for any period, the aggregate net income (or loss) of the Company and its Restricted Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP; provided that there shall be excluded therefrom:

(a)after-tax gains or losses from any sale, transfer, lease or other disposition of any asset (including pursuant to a Division)or abandonments or reserves relating thereto;

(b)after-tax items classified as unusual or nonrecurring gains, losses, charges or expenses;

(c)the net income of any Person, other than a Restricted Subsidiary of the Company, except to the extent of cash dividends or distributions paid to the Company or to a Restricted Subsidiary of the Company by such Person;

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(d)income or loss attributable to discontinued operations from the date of discontinuation forward (including, without limitation, operations disposed of during such period, whether or not such operations were classified as discontinued);

(e)in the case of a successor to the referent Person by consolidation, Division or merger or as a transferee of the referent Person’s assets, any earnings of the successor entity prior to such consolidation, Division, merger or transfer of assets;

(f)non-cash charges relating to compensation expense in connection with benefits provided under employee stock option plans, restricted stock option plans and other employee stock purchase or stock incentive plans;

(g)the cumulative effect of an adoption or change in accounting principles or policies;

(h)effects of adjustments (including the effects of such adjustments pushed down to the Company and the Restricted Subsidiaries in the inventory, property and equipment, software and other intangible assets, deferred revenue and debt line items in such Person’s consolidated financial statements pursuant to GAAP) resulting from the application of purchase accounting in relation to any consummated acquisition or the amortization or write off of any amounts thereof, net of taxes;

(i)any net after tax effect of income (loss) from the early extinguishment of Indebtedness or Swap Obligations or other derivative instruments (including deferred financing costs written off and premiums paid);

(j)any gain or loss resulting from fair value adjustments to Indebtedness;

(k)any impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long lived assets, goodwill, investments in debt and equity securities or as a result of a change in law or regulation;

(l)any expenses, charges or losses that are covered by indemnification or other reimbursement provisions in connection with any Investment, permitted acquisition or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement, to the extent actually reimbursed, or, so long as the Company has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 day period);

(m)unrealized gains and losses relating to Swap Obligations or other derivative instruments and the application of ASC 815 and mark-to-market of Indebtedness denominated in foreign currencies resulting from the application of ASC 830; and

(n)to the extent covered by insurance and actually reimbursed, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is in fact reimbursed within 365 days of the date of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within such 365 days), expenses, charges or losses with respect to liability or casualty events or business interruption.

Net Orderly Liquidation Value” means, with respect to Inventory or Equipment of any Person, the orderly liquidation value thereof as determined in a manner acceptable to the Administrative Agent in

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its Permitted Discretion based on the most recent appraisal of such Inventory or Equipment, as applicable, completed in accordance with the terms hereof by an appraiser reasonably acceptable to the Administrative Agent, net of all costs of liquidation thereof.

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 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 fees and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such event (including attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer Taxes, deed or mortgage recording Taxes, underwriting discounts and commissions, and brokerage, consultant, and accountant fees), (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 secured by such asset or otherwise subject to mandatory prepayment or offer to purchase 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 of the Borrower Representative).

Non-Cash Charges” means, for any period, the aggregate depreciation, amortization and other non-cash expenses (including amortization of intangibles) of the Company and its Restricted Subsidiaries reducing Net Income of the Company and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

Non-Consenting Lender” has the meaning assigned to such term in Section 9.02(e).

Non-Mortgaged Real Property” means any real property owned by a Loan Party (and improvements and Fixtures relating thereto) that is not subject to a Mortgage on the Effective Date, other than the Specified Wisconsin Real Property, to the extent it has become a Mortgaged Real Property hereunder pursuant to Section 5.14(j).

Non-U.S. Pension Plan” means any plan, scheme, fund (including any superannuation fund) or other similar program, established, sponsored or maintained outside the United States by the Company or any one or more of its Restricted Subsidiaries primarily for the benefit of employees of the Company or such Restricted Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

NYFRB means the Federal Reserve Bank of New York.

NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day(or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds

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broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would 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 or 11.02, as applicable.

Obligations” means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) of any of the Loan Parties to any of the Lenders, the Administrative Agent, the Issuing Bank 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, in each case, 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 under any of the Letters of Credit or other instruments at any time evidencing any thereof; provided that Obligations shall not include Excluded Swap Obligations.

Obligor” has the meaning assigned to such term in Article XIII.

Original Currency” has the meaning assigned to such term in Section 2.18.

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, Letter of Credit 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 interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are (a) Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19) or (b) imposed as a result of any voluntary registration by a Lender of any Loan Document.

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).

Overnight Foreign Currency Rate” means, for any amount payable in a Foreign Currency, the rate of interest per annum as determined by the Administrative Agent at which overnight or weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three (3) Business Days, then for such other period of time as the Administrative Agent may elect) for delivery in immediately available and freely transferable funds would be offered by the Administrative Agent to major banks in the interbank market upon request of such major banks for the relevant currency as determined above and in an amount comparable to the unpaid principal amount of the related Credit Event, plus any Taxes, levies, imposts, duties, deductions, charges or withholdings imposed upon, or

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charged to, the Administrative Agent by any relevant correspondent bank in respect of such amount in such relevant currency.

Overnight LIBO Rate” means, with respect to any Overnight LIBO Rate Borrowing on any day, a rate per annum equal to the London interbank offered rate as administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of such rate) for overnight deposits of an Agreed Currency (or Letter of Credit Currency, as applicable) as displayed on the applicable Thomson Reuters screen page (LIBOR01 or LIBOR02) (or, in the event such rate does not appear on a page of the Thomson Reuters screen, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m., London time, on such day; provided that if the Overnight LIBO Rate shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.

Parallel Debt” has the meaning assigned to such term in Section 8.07(e).

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).

Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to economic and monetary union.

Payment Conditions” means, with respect to any proposed designated action on any date, a condition that is satisfied if either (a) after giving effect to such proposed designated action as if it occurred on the first day of the applicable Pro Forma Period, the pro forma Aggregate Availability shall be greater than the greater of (x) 17.5% of the Line Cap and (y) $35,000,000 at all times during such Pro Forma Period or (b) both (i) after giving effect to such proposed designated action as if it occurred on the first day of such Pro Forma Period, the pro forma Aggregate Availability shall be greater than the greater of (x) 15% of the Line Cap and (y) $30,000,000 at all times during such Pro Forma Period and (ii) the Fixed Charge Coverage Ratio, computed on a Pro Forma Basis for the period of four consecutive fiscal quarters ending on the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 5.01, shall be greater than 1.1 to 1.0.

PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

Percentage” means, with respect to any Lender, a percentage equal to a fraction the numerator of which is such Lender’s Commitment and the denominator of which is the Aggregate Commitment (provided that, if the Commitments have terminated or  expired, the Percentages shall be determined based upon such Lender’s share of the Aggregate Revolving Exposure); provided that, in accordance with Section 2.20, so long as any Lender shall be a Defaulting Lender, such Lender’s Commitment shall be disregarded in the foregoing calculation.

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Permitted Acquisition means any Acquisition by any Loan Party or Restricted Subsidiary in a transaction that satisfies each of the following requirements:

(a)

such Acquisition is not a hostile or contested acquisition;

(b)

such Person or division or line of business being acquired is engaged in or constitutes a business that is permitted pursuant to Section 6.03(b);

(c)

no Event of Default exists at the time of such Acquisition or would result therefrom; provided that, solely with respect to Limited Condition Acquisitions, the condition set forth in this clause (c) shall be required to be satisfied only at the time of execution of the applicable Limited Condition Acquisition Agreement;

(d)

if such Acquisition involves a merger or a consolidation involving the Company or any other Loan Party, the Company or a Loan Party, as applicable, shall be the surviving entity, or the surviving entity shall become a Loan Party substantially concurrently with the consummation of such merger or consolidation, all in compliance with Section 6.03 and subject to the terms set forth in Section 5.14 (without giving effect to any grace periods set forth therein);

(e)

if the purchase price paid by such Loan Party or such Subsidiary in connection with such Acquisition (or any series of related Acquisitions) exceeds $20,000,000, as soon as available, but not less than five (5) days prior to the consummation of such Acquisition (or such shorter time as the Administrative Agent may agree in its sole discretion), the Borrower Representative 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 Aggregate Availability projections;

(f)

the Company shall have delivered to the Administrative Agent final executed material documentation relating to such Acquisition promptly after the consummation of such Acquisition;

(g)

if the Acquisition is by a Domestic Loan Party, the assets being acquired (other than a de minimis amount of assets in relation to the Company and its Restricted Subsidiaries’ total assets) are located within the United States, or the Person whose Equity Interests are being acquired is organized in a jurisdiction located within the United States, and if the Acquisition is by the German Borrower, the assets being acquired (other than a de minimis amount of assets in relation to the Company and its Restricted Subsidiaries’ total assets) are located within an Eligible European Jurisdiction, or the Person whose Equity Interests are being acquired is organized in an Eligible European Jurisdiction; and

(h)

with respect to Permitted Acquisitions with a purchase price in excess of $10,000,000, Agent shall have received, prior to the proposed Acquisition, a certificate signed by an officer of the Borrower Representative certifying compliance with the foregoing conditions.

Permitted Discretion” means a commercially reasonable determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) credit or business judgment in accordance with customary business practices of the Administrative Agent for comparable asset-based lending transactions.

Permitted Encumbrances” means:

(a)

Liens imposed by law for Taxes, assessments, charges or other governmental levies that are not yet due or payable or as to which the period of grace, if any, related thereto has not expired, or (i)

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are being contested in compliance with Section 5.04, (ii) for which adequate reserves with respect thereto have been set aside to the extent required by GAAP or (iii) the failure to make payment pending contest thereof would not reasonably be expected to have a Material Adverse Effect;

(b)

statutory Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s and supplier’s (including sellers of goods), landlords’, repairmen’s or other Liens imposed by law or pursuant to customary reservations of retention of title arising in the ordinary course of business (i) which are not overdue for a period of more than sixty (60) days, (ii) which are being contested in good faith by appropriate proceedings or for which adequate reserves with respect thereto have been set aside to the extent required by GAAP or (iii) for which the failure to make payments pending contest thereof would not reasonably be expected to have a Material Adverse Effect;

(c)

pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business and obligations in respect of letters of credit issued in support of the foregoing; with respect to Subsidiaries incorporated in Germany this shall include security created or subsisting in order to comply with the requirements of Section 8a of the German Partial Retirement Act (Altersteilzeitgesetz) and of Section 7e of the German Social Security Code IV (Sozialgesetzbuch IV);

(d)

deposits to secure the performance of bids, trade contracts, leases, statutory obligations, contractual or warranty requirements, surety and appeal bonds, performance bonds and other obligations of a like nature or obligations in respect of letters of credit issued in support thereof, in each case in the ordinary course of business;

(e)

Liens arising out of judgments, decrees and attachments not resulting in an Event of Default;

(f)

Easements (including reciprocal easement agreements and utility agreements), zoning restrictions, rights-of-way, reservations, encroachments, variations, survey exceptions, restrictions on the use of real property, any zoning, building or similar laws or rights reserved to or vested in any Governmental Authority, minor defects or irregularities in title, lessor’s liens and similar encumbrances on real property imposed by law or arising in the ordinary course of business that, in the case of each of the foregoing, do not secure any monetary obligations (subject to clauses (a) and (b) above) and do not materially detract from the value of the affected real property or materially interfere with the ordinary conduct of business by the Company or any Restricted Subsidiary;

(g)

any interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by the Company or any Restricted Subsidiary thereof in the ordinary course of its business and covering only the assets so leased, licensed or subleased;

(h)

assignments of insurance or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the terms of any lease and Liens or rights reserved in any lease for rent or for compliance with the terms of such lease;

(i)

Liens evidenced by precautionary UCC financing statements in respect of operating leases;

(j)

Liens arising in the ordinary course of business by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of setoff or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained

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with a depository institution or securities intermediary, but in the case of Collection Accounts, such Liens shall be waived or subordinated, as applicable, to the satisfaction of the Administrative Agent or the Administrative Agent shall be permitted to establish a Reserve in its Permitted Discretion;

(k)

Liens in favor of the Issuing Bank, Swingline Lender or the Administrative Agent to cash collateralize or otherwise secure the obligations of a Defaulting Lender as required hereunder;

(l)

with respect to any Mortgaged Real Property, (i) any exceptions listed on title insurance policies accepted by the Administrative Agent with respect to such Mortgaged Real Property and (ii) matters that are disclosed by surveys accepted by the Administrative Agent; and

(m)

any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any of the foregoing; provided that such extension, renewal or replacement Lien shall be limited to all or a part of the property which secured the Lien so extended, renewed or replaced (plus improvements, accessions and attachments on such property);

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, except with respect to clauses (d), (e), (j) and (k) above.

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 one year from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

(c)

investments in certificates of deposit, banker’s acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any Lender or 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 $250,000,000 at the time of acquisition thereof;

(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;

(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 Moody’s and (iii) have portfolio assets of at least $5,000,000,000;

(f)

in the case of any German Restricted Subsidiary, other investments that are analogous to the foregoing, are of comparable credit quality and are customarily used by companies in the jurisdiction of such German Restricted Subsidiary for cash management purposes;

(g)

other investments similar in scope and type as the other investments set forth in this definition from time to time approved by the Administrative Agent, such approval not to be unreasonably withheld or delayed; and

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(h)

marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s.

Permitted Long-Term Indebtedness” means unsecured Indebtedness for borrowed money of any Loan Party (and the Guarantees thereof by any Loan Party); provided that (a) such Indebtedness shall mature later than, and shall not be subject to any scheduled payment of principal, mandatory sinking fund requirement or similar unconditional repayment obligation prior to, 180 days after the Maturity Date, (b) such Indebtedness shall not be subject to any terms requiring any obligor of such Indebtedness to pay (or offer to pay) such Indebtedness other than (i) pursuant to scheduled payments of principal that comply with clause (a) above and (ii) pursuant to Customary Mandatory Prepayment Terms and (c) such Indebtedness is not Subordinated Indebtedness.

Permitted Term Loan Agreement” means an agreement providing for the incurrence of term loans by the Company or any Restricted Subsidiary, which term loans are subject to a Junior Intercreditor Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time and as replaced or refinanced in whole or in part (whether with the same group of lenders or a different group of lenders) in accordance with the terms hereof and of such Junior Intercreditor Agreement.

Person” means any natural person, firm, consortium, corporation, limited liability company, trust, joint venture, association, company, unlimited liability company, partnership, Governmental Authority or other entity (whether or not having separate legal personality).

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 Borrower 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.

Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.

PP&E Components” means, collectively, the Domestic PP&E Component and the German PP&E Component.

Prepayment Event” means, any of the following events that occur from and after the date on which Aggregate Availability is less than 20% of the Line Cap, and until such subsequent date, if any, on which Aggregate Availability is equal to or greater than 20% of the Line Cap:

(a)

(x) any sale, transfer or other disposition of any property or asset of any Loan Party (other than any Collateral consisting of Eligible Equipment and/or Eligible Real Property) pursuant to Section 6.05(m), (n) or (p), with an aggregate value, or generating aggregate Net Proceeds, exceeding $10,000,000 in any fiscal year, or (y) any sale, transfer or other disposition (but excluding any permitted sale, transfer or disposition between Loan Parties) of any Collateral consisting of Eligible Equipment and/or Eligible Real Property; or

(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 with an aggregate value, or generating aggregate Net Proceeds, exceeding $20,000,000.

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Prime Rate means the rate of interest last quoted by The Wall Street Journal as the Prime Rate in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the bank prime loan rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).  Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.

Priority Payables Reserves” means reserves for amounts which rank or are capable of ranking in priority to the Liens granted to the Administrative Agent to secure the Secured Obligations, including, in the Permitted Discretion of the Administrative Agent, any such amounts due and not paid for wages, vacation pay, severance pay, employee deductions, income Tax, VAT, amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, amounts currently or past due and not paid for Taxes and pension obligations.

Pro Forma Basis” means, for purposes of calculating EBITDA, Fixed Charges, Fixed Charge Coverage Ratio or the satisfaction of Payment Conditions, that such calculations shall be made:

(a)after giving effect on a pro forma basis for the period of such calculation to the incurrence, assumption, guarantee, redemption, repayment, reclassification, discharge, defeasance, repurchase or extinguishment of any Indebtedness (and the application of the proceeds thereof) giving rise to the need to make such calculation and any incurrence, assumption, guarantee, redemption, repayment, reclassification, discharge, defeasance, repurchase or extinguishment of other Indebtedness (and the application of the proceeds thereof), other than the incurrence or repayment of Indebtedness in the ordinary course of business for working capital purposes pursuant to working capital facilities, occurring during such period or at any time subsequent to the last day of such period and on or prior to the date of the transaction giving rise to the need to calculate EBITDA, Fixed Charges, Fixed Charge Coverage Ratio or the satisfaction of Payment Conditions, as applicable, on a pro forma basis (the “Transaction Date”), as if such incurrence or repayment, as the case may be (and the application of the proceeds thereof), occurred on the first day of such period; and

(b)

Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and any operational changes, business realignment projects or initiatives, restructurings or reorganizations that the Company or any Restricted Subsidiary has determined to make or made during the applicable period or subsequent thereto and on or prior to or simultaneously with the Transaction Date (each, for purposes of this definition, a “pro forma event”) shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, amalgamations, consolidations and other operational changes, business realignment projects or initiatives, restructurings or reorganizations (and the change of any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of such period. If since the beginning of the applicable period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation, amalgamation, operational change, business realignment project or initiative, restructuring or reorganization, in each case with respect to an operating unit of a business, that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, amalgamation, consolidation, operational change, business realignment project or initiative, restructuring or reorganization had occurred at the beginning of such period. If since the beginning of any applicable period any Restricted Subsidiary is designated an Unrestricted Subsidiary, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such designation had occurred at the beginning of such period.

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Pro Forma Period means the period commencing thirty (30) days prior to the date of any proposed designated action and ending on the date of such proposed designated action.

Protective Advance” has the meaning assigned to such term in Section 2.04.

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Qualified Capital Stock” means any Equity Interests that are not Disqualified Capital Stock.

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 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.

Quotation Day” means, with respect to any Eurodollar Borrowing for any Interest Period, (i) if the currency is Sterling, the first day of such Interest Period, (ii) if the currency is euro, the day that is two (2) TARGET2 Days before the first day of such Interest Period, and (iii) for any other currency, two (2) Business Days prior to the commencement of such Interest Period (unless, in each case, market practice differs in the relevant market where the LIBO Rate for such currency is to be determined, in which case the Quotation Day will be determined by the Administrative Agent in accordance with market practice in such market (and if quotations would normally be given on more than one day, then the Quotation Day will be the last of those days)).

Real Property Amortization Factor” means, with respect to any real property on any date of determination, 1 minus a fraction, the numerator of which is the number of full fiscal quarters of the Company elapsed as of such date (including any such fiscal quarter ending on such date) since March 31, 2019 and the denominator of which is 60.

Recipient” means (a) the Administrative Agent, (b) any Lender and (c) the Issuing Bank, or any of the foregoing or any combination thereof (as the context requires).

Refinance Indebtedness” has the meaning assigned to such term in Section 6.01(i).

Register” has the meaning assigned to such term in Section 9.04.

Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).

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.

Relevant Party” has the meaning assigned to such term in Section 2.17(h).

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Report means reports prepared by the Administrative Agent or another Person showing the results of appraisals, field examinations or audits pertaining to the assets of the Loan Parties from information furnished by or on behalf of the Borrowers, after the Administrative Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be distributed to the Lenders by the Administrative Agent.

Required Lenders” means, subject to Section 2.20, at any time, Lenders having Revolving Exposure and Unused Commitments representing more than 50% of the sum of the Aggregate Revolving Exposure and Unused Commitments at such time; provided, however, that in no event shall Required Lenders be constituted by less than two (2) unaffiliated Lenders at any time when there are two (2) or more unaffiliated Lenders; provided further that, for purposes of declaring the Loans to be due and payable pursuant to Article VII, and for all purposes after the Loans become due and payable pursuant to Article VII or the Commitments expire or terminate, then, as to each Lender, clause (a) of the definition of Swingline Exposure shall only be applicable for purposes of determining its Revolving Exposure to the extent such Lender shall have funded its participation in the outstanding Swingline Loans.

Requirement of Law” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation and bylaws or operating, management or partnership agreement, constitutional documents, articles of association, memorandum of association 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 and Anti-Corruption 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.

Reserves” means any and all reserves which the Administrative Agent deems necessary, in its Permitted Discretion, to maintain (including, without limitation (but without duplication), Banking Services Reserves ranking pari passu with the payment of principal, Priority Payables Reserves, reserves for “extended” or “extendable” retention of title, reserves for rent at locations leased by any Loan Party and for consignee’s, warehousemen’s and bailee’s charges (but (x) only for locations where Eligible Inventory or Eligible Equipment is located and, other than with respect to reserves for rent (as opposed to reserves for consignee’s, warehousemen’s and bailee’s charges) for locations in Germany, not to exceed three months’ rent and other charges and, with respect to reserves for rent for locations in Germany, not to exceed the rent for periods subsequent to the current and the following year of the lease less any existing security for such rent) and (y) only for locations in jurisdictions in which such landlord’s, consignee’s, warehousemen’s or bailee’s Liens on such Eligible Inventory or Eligible Equipment have priority over the Administrative Agent’s Liens as a matter of law), reserves for dilution of Accounts (to the extent dilution exceeds 5%), reserves for Inventory shrinkage, reserves for customs charges and shipping charges related to any Eligible Inventory in transit, reserves for Swap Agreement Obligations ranking pari passu with the payment of principal, reserves for Designated Secured Foreign Products Obligations, reserves for contingent liabilities of any Loan Party, reserves for uninsured losses of any Loan Party with respect to assets included in the Borrowing Base, reserves for Taxes, fees, assessments, reserves for VAT, and other governmental charges and reserves for fees payable to an insolvency administrator pursuant to Section 171 of the German Insolvency Code (or relevant successor provision)) with respect to the Collateral or any Loan Party; provided that, notwithstanding the foregoing, the Administrative Agent may not implement any new reserves or increase the amount of any existing Reserves without at least three (3) Business Days’ prior notice to the Borrower Representative (it being understood, however, that if the implementation of any such new or increased reserve would result in the Borrowers not being in compliance with the Revolving Exposure Limitations after giving effect to any requested Revolving Loan or Letter of Credit, notwithstanding anything contained in this Agreement to the contrary, the Lenders and the Issuing Bank shall have no obligation to make such Revolving Loan or issue such Letter of Credit

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during such three (3) Business Day period). The Administrative Agent shall be available to discuss any proposed Reserve during the three (3) Business Day period described above, and the Borrowers may take such action as may be required so that the event, condition or matter that is the basis for such new or increased Reserve no longer exists or exists in a manner that would result in the establishment of a lower Reserve or result in a lesser increase, in each case, in a manner and to the extent satisfactory to the Administrative Agent in its Permitted Discretion.  The amount of any Reserve established by the Administrative Agent, and any change in the amount of any Reserve, shall have a reasonable relationship to the event, condition or other matter that is the basis for such Reserve or such change. Notwithstanding anything herein to the contrary, Reserves shall not duplicate eligibility criteria contained in the definition of Eligible Accounts, Eligible Credit Insured Accounts, Eligible Equipment, Eligible Inventory, Eligible Real Property or any other Reserve then established. No Reserves (other than in respect to any potential Reserves with respect to the German Borrowing Base) may be taken after the Effective Date based on circumstances, conditions, events or contingencies known to the Administrative Agent as of the Effective Date and for which no reserves were imposed on the Effective Date, except if such circumstances, conditions, events or contingencies (including, without limitation, the amount thereof) shall have changed in any material adverse respect since the Effective Date.

Responsible Officer” means the president, Financial Officer or other executive officer of the applicable Borrower, or, in relation to a German Loan Party, any managing director (Geschäftsführer).

Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Company or any Restricted 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 the Company or any Restricted Subsidiary or any option, warrant or other right to acquire any such Equity Interests.

Restricted Subsidiaries” means all Subsidiaries of the Company other than the Unrestricted Subsidiaries.

Revolving Exposure means, with respect to any Lender at any time, the sum of (a) the U.S. Dollar Amount of the outstanding principal amount of such Lender’s Revolving Loans, LC Exposure and Swingline Exposure at such time, plus (b) an amount equal to its Applicable Percentage of the aggregate principal amount of Protective Advances outstanding at such time.

Revolving Exposure Limitations” has the meaning set forth in Section 2.01.

Revolving Lender” means, as of any date of determination, a Lender with a Revolving Commitment or, if the Revolving Commitments have terminated or expired, a Lender with Revolving Exposure.

Revolving Loan” means a Loan made pursuant to Section 2.01.

S&P” means S&P Global Ratings, 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 or whose government is the subject or target of any comprehensive Sanctions (as of the Effective Date, Crimea, Cuba, Iran, North Korea and Syria).

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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, the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom, (b) any Person located, organized or resident in a Sanctioned Country, (c) any Person owned 50% or more 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 or Her Majesty’s Treasury of the United Kingdom.

SEC” means the Securities and Exchange Commission of the U.S.

Secured Obligations” means all Obligations, together with all (i) Banking Services Obligations, (ii) Swap Agreement Obligations and (iii) Designated Secured Foreign Products Obligations, in each case, 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 Loan Party of (or grant of security interest by any Loan Party to support, as applicable) any Excluded Swap Obligations of such Loan Party for purposes of determining any obligations of any Loan Party.

Secured Parties” means (a) the Administrative Agent, (b) the Lenders, (c) the Issuing Banks, (d) each provider of Banking Services, to the extent the Banking Services Obligations in respect thereof constitute Secured Obligations, (e) each counterparty to any Swap Agreement, to the extent the obligations thereunder constitute Secured Obligations, (f) each provider of Designated Secured Foreign Products, to the extent the obligations thereunder constitute Secured Obligations and (g) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document.

Securities Account” has the meaning assigned to such term in the applicable Security Agreement.

Securities Account Control Agreement” has the meaning assigned to such term in the applicable Security Agreement.

Security Agreements” means, collectively, the Domestic Security Agreement and the German Security Agreements.

Settlement” has the meaning assigned to such term in Section 2.05(b).

Settlement Date” has the meaning assigned to such term in Section 2.05(b).

Significant Subsidiary” means any Subsidiary (or group of Subsidiaries) that satisfies the criteria for a “significant subsidiary” set forth in Rule 1-02(w) of Regulation S-X promulgated by the U.S. Securities and Exchange Commission, as in effect on the Effective Date, substituting “5 percent” for “10 percent”.

Solvent” means, as of any date of determination, in reference to the Company and its Restricted Subsidiaries taken as a whole, (i) the fair value of the assets of the Company and its Restricted Subsidiaries, taken as a whole, at a fair valuation, will exceed their debts and liabilities, subordinated, contingent or unliquidated; (ii) the present fair saleable value of the property of the Company and its Restricted Subsidiaries taken as a whole will be greater than the amount that will be required to pay the

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probable liability of their debts and other liabilities, subordinated, contingent or unliquidated, as such debts and other liabilities become absolute and matured; (iii) the Company and its Restricted Subsidiaries taken as a whole will be able to pay their debts and liabilities, subordinated, contingent or unliquidated, as such debts and liabilities become absolute and matured; and (iv) the Company and its Restricted Subsidiaries taken as a whole does not have unreasonably small capital with which to conduct the business.

Special Flood Hazard Area” means a “Special Flood Hazard Area” as designated on any Flood Insurance Rate Map published by FEMA.

Specified Cranes” means the cranes listed on Schedule 1.01(b).

Specified Event of Default” means any (i) Event of Default under clauses (a), (h), (i) or (j) of Article VII, (ii) any Event of Default arising from the failure of any Loan Party to deliver a Borrowing Base Certificate required to be delivered hereunder or any material inaccuracy contained in any Borrowing Base Certificate, (iii) any Event of Default arising from the failure of any Loan Party to comply with its obligations under this Agreement and the Security Agreements to make or direct payments into Deposit Accounts over which the Administrative Agent has a first priority perfected Lien and dominion and control or to maintain such Lien and dominion and control over Deposit Accounts (other than Excluded Accounts) and (iv) any Event of Default arising from the failure of the Loan Parties to comply with the financial covenant contained in Section 6.12 at any time that such financial covenant is applicable pursuant to the terms hereof.

Specified KYC Materials” has the meaning set forth in Section 1.09.

Specified Wisconsin Real Property” means (a) the real property located at 2401 South 30th Street, Manitowoc, Wisconsin and owned by Grove U.S. L.L.C. on the Effective Date, or (b) if Grove U.S. L.L.C. (or any successor owner) has disposed of any portion of the real property described in clause (a) after the Effective Date, the remaining portion of such real property at the time Borrower elects to add such real property as a Mortgaged Real Property pursuant to Section 5.14(j), provided such real property shall be subject to the approval of Administrative Agent, which approval shall not be unreasonably withheld, conditioned or delayed.

Statements” has the meaning assigned to such term in Section 2.18(f).

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, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the Federal Reserve Board, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in the applicable currency, expressed in the case of each such requirement as a decimal.  Such reserve, liquid asset, fees or similar requirements shall include those imposed pursuant to Regulation D of the Board.  Eurodollar Loans shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under any applicable law, rule or regulation, including Regulation D of the Board.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.

Sterling” or “” means the lawful currency of the U.K.

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Subordinated Indebtedness means any Indebtedness for borrowed money of any Loan Party (and the Guarantees thereof by any Loan Party); provided that (a) such Indebtedness shall mature later than, and shall not be subject to any scheduled payment of principal, mandatory sinking fund requirement or similar unconditional repayment obligation prior to, 180 days after the Maturity Date, (b) such Indebtedness shall not be subject to any terms requiring any obligor of such Indebtedness to pay (or offer to pay) such Indebtedness other than pursuant to scheduled payments of principal that comply with clause (a) above, and (c) such Indebtedness shall be subordinated to the Secured Obligations on terms reasonably satisfactory to the Administrative Agent.

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 and/or one or more subsidiaries of the parent.

Subsidiary” means any direct or indirect subsidiary of the Company or a Loan Party, as applicable.

Supermajority Lenders” means, at any time, Lenders (other than Defaulting Lenders) having Revolving Exposures and Unused Commitments representing more than 66 2/3% of the sum of the Aggregate Revolving Exposure and Unused Commitments at such time; provided, however, that in no event shall Supermajority Lenders be constituted by less than two (2) unaffiliated Lenders at any time when there are two (2) or more unaffiliated Lenders.

Supplier” has the meaning assigned to such term in Section 2.17(h).

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 the Company or its Subsidiaries shall be a Swap Agreement.

Swap Agreement Obligations” means any and all obligations of the Loan Parties (or any Subsidiaries of the Loan Parties if the Borrower Representative has provided written notice to the Administrative Agent of the services in favor of such Subsidiaries to be secured), 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 Swap Agreement transaction permitted hereunder with a Lender or an Affiliate of a Lender.

Swap Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.

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Swingline Exposure means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time.  The Swingline Exposure of any Revolving Lender at any time shall be the sum of (a) its Applicable Percentage of the aggregate Swingline Exposure at such time other than with respect to any Swingline Loans made by such Revolving Lender in its capacity as the Swingline Lender and (b) the principal amount of all Swingline Loans made by such Revolving Lender in its capacity as the Swingline Lender outstanding at such time (less the amount of participations funded by the other Lenders in such Swingline Loans).

Swingline Exposure Limitations” has the meaning set forth in Section 2.05.

Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of Swingline Loans hereunder. References to the “Swingline Lender” shall include any other branch or affiliate of JPMorgan Chase Bank, N.A. designated by JPMorgan Chase Bank, N.A. for the purpose of performing such obligations in such capacity.

Swingline Loan” means a Loan made pursuant to Section 2.05.

Syndication Agent” mean JPMorgan Chase Bank, N.A., in its capacity as syndication agent for the credit facility evidenced by this Agreement.

TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) for the settlement of payments in Euro.

Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, withholdings, (including backup withholding), 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.

Total Assets” means, as of the date of any determination thereof, total assets of the Company and its Restricted Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.

Trademark” has the meaning assigned to such term in the applicable Security Agreement.

Transactions” means, collectively, the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents, the borrowing of Loans and other credit extensions and the issuance of Letters of Credit hereunder.

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, ABR or Overnight LIBO 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 (a) not financed from the proceeds of any Indebtedness (other than the Revolving Loans), it being understood and agreed that, to the extent any Capital Expenditures are financed with

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Revolving Loans, such Capital Expenditures shall be deemed Unfinanced Capital Expenditures and (b) not paid for using the proceeds of any casualty or other insurance.

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 Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations.

Unrestricted Subsidiary” means each of MMG Holding Co., LLC, a Nevada limited liability company, The Manitowoc Company Foundation, a Michigan corporation, and Manitowoc Funding, LLC, a Nevada limited liability company, and any other Subsidiary of the Company subsequently designated by the Borrower Representative as such in writing in accordance with Section 5.14(i), which designation is reasonably acceptable to the Administrative Agent.

Unused Commitment” means, at any time, the Aggregate Commitment minus the Aggregate Revolving Exposure.

USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.

U.S.” means the United States of America.

U.S. Dollar Amount” of any currency at any date shall mean (i) the amount of such currency if such currency is U.S. Dollars or (ii) the equivalent amount thereof in U.S. Dollars if such currency is a Foreign Currency, calculated on the basis of the Exchange Rate for such currency, on or as of the most recent Computation Date provided for in Section 1.06.

U.S. Dollars” or “$” refers to lawful money of the U.S.

U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).

VAT” means (a) any Tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other Tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such Tax referred to in clause (a) of this definition or imposed elsewhere.

Wholly-Owned Subsidiary” of any Person shall mean a Subsidiary of such Person, all of the Equity Interests of which are owned by such Person or another Wholly-Owned Subsidiary of such Person.

Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

Withholding Agent” means any Loan Party and the Administrative Agent.

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Write-Down and Conversion Powers means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

SECTION 1.02.Classification of Loans and Borrowings

.  For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”).  Borrowings also may be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).

SECTION 1.03.Terms Generally

.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply) and all judgments, orders and decrees of all Governmental Authorities.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignments set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (f) any reference in any definition to the phrase “at any time” or “for any period” shall refer to the same time or period for all calculations or determinations within such definition, and (g) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. At any time a Limited Condition Acquisition is pending, all determinations of the Line Cap and all other financial ratios, tests and covenants hereunder that are required to be satisfied or met in order for a Borrower or a Restricted Subsidiary thereof to take an action permitted hereunder (by way of example only, making an investment or paying a dividend) shall include such Limited Condition Acquisition on a Pro Forma Basis as if such Acquisition (and any related incurrence or repayment of Indebtedness) had occurred on the first day of each relevant period for testing such compliance.

SECTION 1.04.Accounting Terms; GAAP.

(a)Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP (or in the case of a German Subsidiary, German GAAP), as in effect on the Effective Date.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Financial Accounting Standards Board Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to

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value any Indebtedness or other liabilities of the Company or any Subsidiary at fair value, as defined therein, and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Financial Accounting Standards Board Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.

(b)Notwithstanding anything to the contrary contained in clause (a) above or in the definition of “Financing Lease Obligations,” following an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that such leases were in existence on the Effective Date) that would constitute financing or capital leases in conformity with GAAP on the Effective Date shall be considered financing or capital leases, and all calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith.

SECTION 1.05.Status of Obligations

.  The Obligations are hereby designated as “senior debt” and as “designated senior debt” and words of similar import under and in respect of any indenture or other agreement or instrument under which such Subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under the terms of any such Subordinated Indebtedness in order that the Lenders may have and exercise any payment blockage or other remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.

SECTION 1.06.Determination of U.S. Dollar Amounts

.  The Administrative Agent will determine the U.S. Dollar Amount of:

(a)each Eurodollar Borrowing in a Foreign Currency as of the date two (2) Business Days prior to the date of such Borrowing or, if applicable, the date of conversion/continuation of any Borrowing as a Eurodollar Borrowing in a Foreign Currency,

(b)the LC Exposure as of the date of each request for the issuance, amendment, renewal or extension of any Letter of Credit, and

(c)all outstanding Credit Events on and as of the last Business Day of each calendar quarter and, during the continuation of an Event of Default, on any other Business Day elected by the Administrative Agent in its sole discretion or upon instruction by the Required Lenders.

Each day upon or as of which the Administrative Agent determines U.S. Dollar Amounts as described in the preceding clauses (a), (b) and (c) is herein described as a “Computation Date” with respect to each Credit Event for which a U.S. Dollar Amount is determined on or as of such day.

SECTION 1.07.Interest Rates. The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “LIBO Rate” or with respect to any comparable or successor rate thereto, or replacement rate therefor.

SECTION 1.08.Limited Conditionality.  Notwithstanding anything in this Agreement or any Loan Document to the contrary (but subject to the last sentence of this Section 1.08), when (i) calculating any applicable ratio in connection with the incurrence of Indebtedness, the creation of Liens, the making of any disposition pursuant to Section 6.05, the making of an Investment, the repayment of Indebtedness or the consummation of a Permitted Acquisition, or (ii) determining compliance with any

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provision of this Agreement which requires that no Default, Event of Default or Specified Event of Default has occurred, is continuing or would result therefrom and/or that representations and warranties be true and correct, in the case of each of clauses (i) and (ii) solely in connection with determining whether a Limited Condition Transaction shall have satisfied the requisite conditions to be permitted under the Loan Documents, the date of determination of such ratio, of whether any Default, Event of Default or Specified Event of Default has occurred, is continuing or would result therefrom and whether the representations and warranties are true and correct shall, at the option of the Company (the Company’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCT Test Date”).  If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) such ratios and other provisions are calculated as if such Limited Condition Transaction or other transactions had occurred as of the first day of the most recent four fiscal quarter period ending prior to such LCT Test Date for which financial statements were required to be delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financials statements, the latest financial statements referred to in Section 4.01(b)), the Company could have taken such action on the relevant LCT Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless an Event of Default pursuant to clauses (a), (b), (h), (i) or (j) of Article VII shall be continuing on the date such Limited Condition Transaction is consummated.  For the avoidance of doubt, (i) if any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in EBITDA) or other provisions at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction, unless on such date an Event of Default pursuant to clauses (a), (b), (h), (i) or (j) of Article VII shall be continuing.  If the Company has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Limited Condition Transaction on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated, and be required to be satisfied, on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.  Notwithstanding anything in this Agreement or any Loan Document to the contrary, if the Company or its Subsidiaries (x) incurs Indebtedness, creates Liens, makes any disposition pursuant to Section 6.05, makes Investments, or repays any Indebtedness in connection with any Limited Condition Transaction under a ratio-based basket and (y) incurs Indebtedness, creates Liens, makes any disposition pursuant to Section 6.05, makes Investments, or repays any Indebtedness in connection with such Limited Condition Transaction under a non-ratio-based basket (which shall occur simultaneously with the events in clause (x) above), then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such Limited Condition Transaction. Notwithstanding anything to the contrary in the foregoing, any LCT Election with respect to the transactions described in clauses (ii) and (iii) of the definition of “Limited Condition Transaction” shall be deemed to have terminated and be of no effect if such applicable Limited Condition Transaction is not consummated within 180 days of the applicable LCT Election Date.  Notwithstanding anything to the contrary in this Agreement, the provisions of this Section 1.08 shall not apply when determining the amount of Aggregate Availability under this Agreement or whether the Aggregate Availability component of the definition of Payment Conditions has been satisfied.

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SECTION 1.09.Additional Borrowers.  Notwithstanding anything in Section 9.04 to the contrary, following the Effective Date, the Borrower Representative may request that one or more wholly-owned Domestic Subsidiaries of the Company that owns assets that Borrower Representative desires to be included in the Domestic Borrowing Base, be added as an additional Domestic Borrower hereunder, by delivering written notice of such request to the Administrative Agent and the Lenders not less than twenty (20) days prior to the Borrower Representative’s proposed effective date of such borrower joinder (such date, the “Borrower Joinder Effective Date”).  The Borrower Representative agrees, on or prior to the Borrower Joinder Effective Date, to deliver (a) to the Administrative Agent a Joinder Agreement executed by the Borrower Representative and such wholly-owned Domestic Subsidiary, together with appropriate corporate resolutions, other corporate organizational and authorization documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and (b) at least ten (10) days prior to the Borrower Joinder Effective Date, such documentation and other information reasonably requested by the Lenders or the Administrative Agent for purposes of complying with all necessary " know your customer" or other similar checks under all applicable laws and regulations (including, without limitation, to the extent such Subsidiary is a "legal entity customer" under the Beneficiary Ownership Regulation, a Beneficial Ownership Certification with respect to such Subsidiary if requested by any Lender) (collectively, the "Specified KYC Materials"), which Specified KYC Materials shall be reasonably satisfactory to the Administrative Agent and/or the applicable Lenders (it being understood that such Specified KYC Materials shall be deemed satisfactory to the Administrative Agent and/or the applicable Lender if the Administrative Agent or such Lender does not provide a written notice to the Borrower Representative objecting to the form or substance of such Specified KYC Materials within ten (10) days of the Administrative Agent's and/or such Lender's receipt of such the Specified KYC Materials.  Such Joinder Agreement shall be effective, and such wholly-owned Domestic Subsidiary shall be a Domestic Borrower under this Agreement and a Guarantor on the Borrower Joinder Effective Date.  Promptly following receipt of any Joinder Agreement pursuant to this Section 1.09, the Administrative Agent shall send a copy thereof to each Lender.  Notwithstanding anything to the contrary in the foregoing, the assets of such wholly-owned Domestic Subsidiary shall not be included in the Domestic Borrowing Base until the Administrative Agent shall have received and be reasonably satisfied with a field examination and appraisal with respect to such assets from an examiner reasonably acceptable to the Administrative Agent.

Article II

The Credits

SECTION 2.01.Commitments

.  Subject to the terms and conditions set forth herein, each Revolving Lender severally (and not jointly) agrees to make Revolving Loans (a) in U.S. Dollars to the Domestic Borrowers and (b) in Agreed Currencies to the German Borrower, in each case, from time to time during the Availability Period if, after giving effect thereto:

(i)each Revolving Lender’s Revolving Exposure does not exceed such Lender’s Commitment;

(ii)the aggregate Domestic Revolving Exposure of all Lenders does not exceed the Domestic Borrowing Base;

(iii)the aggregate German Revolving Exposure of all Lenders does not exceed the lesser of (x) the German Sublimit and (y) the Aggregate Borrowing Base; and

(iv)Aggregate Revolving Exposure does not exceed the lesser of (x) the Aggregate Commitment and (y) the Aggregate Borrowing Base;

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subject, in each case, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.04.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.  The limitations on Borrowings referred to in clauses (i) through (iv) above are referred to collectively as the Revolving Exposure Limitations.

SECTION 2.02.Loans and Borrowings

.  (a) Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class.  The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that, the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.  Any Protective Advance or Swingline Loan shall be made in accordance with the procedures set forth in Sections 2.04 and 2.05.

(b)Subject to Section 2.14, (i) each Revolving Borrowing denominated in U.S. Dollars and made to the Domestic Borrowers shall be comprised entirely of ABR Loans or Eurodollar Loans and (ii) each Revolving Borrowing denominated in U.S. Dollars, Euro or Sterling and made to the German Borrower shall be comprised entirely of Eurodollar Loans, in each case, as the Borrower Representative may request in accordance herewith (subject, in each case, to the requirements of Section 2.16, including in the case of any Borrowings made or requested to be made on the Effective Date).  Each Swingline Loan made to the Domestic Borrowers shall be denominated in U.S. Dollars and shall be an ABR Loan.  Each Swingline Loan made to the German Borrower in an Agreed Currency and shall be an Overnight LIBO Rate Borrowing.  Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15, 2.16 and 2.17 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the relevant Borrower to repay such Loan in accordance with the terms of this Agreement and such Lender shall not be entitled to any amounts payable under Sections 2.15 or 2.17 solely in respect of increased costs or taxes resulting from such exercise.

(c)At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 (or, if such Borrowing is denominated in a Foreign Currency, 1,000,000 units of such currency) and not less than $5,000,000 (or, if such Borrowing is denominated in a Foreign Currency, 5,000,000 units of such currency).  Borrowings of more than one Type and Class may be outstanding at the same time; provided that, there shall not be more than a total of ten (10) Eurodollar Borrowings outstanding at any time.

(d)Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

SECTION 2.03.Requests for Revolving Borrowings

.  To request a Revolving Borrowing, the Borrower Representative shall notify the Administrative Agent of such request either in writing (delivered by hand or fax) by delivering a Borrowing Request signed by a Responsible Officer of the Borrower Representative or through Electronic System if arrangements for doing so have been approved by the Administrative Agent (or if an Extenuating Circumstance shall exist, by telephone) not later than (a) in the case of a Eurodollar Borrowing, 12:00 noon, Local Time, three (3) Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon, Local Time, on the date of the proposed Borrowing.  Each such Borrowing Request shall be irrevocable and each such telephonic Borrowing Request, if permitted, shall be confirmed immediately by hand delivery, fax or a communication through Electronic System to the Administrative Agent of a written Borrowing

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Request in a form approved by the Administrative Agent and signed by a Responsible Officer of the Borrower Representative.  Each such written (or if permitted, telephonic) Borrowing Request shall specify the following information in compliance with Section 2.02:

(i)the name of the applicable Borrower(s);

(ii)the aggregate amount of the requested Borrowing and a breakdown of the separate wires comprising such Borrowing;

(iii)the date of such Borrowing, which shall be a Business Day;

(iv)whether such Borrowing is a Domestic Borrowing or a German Borrowing;

(v)whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

(vi)in the case of a Eurodollar Borrowing, the Agreed Currency of such Borrowing; and

(vii)in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period.”

If no election as to the Type of Revolving Borrowing is specified, then (a) in the case of a Borrowing denominated in U.S. Dollars to a Domestic Borrower, the requested Revolving Borrowing shall be an ABR Borrowing and (b) in the case of a Borrowing denominated in U.S. Dollars, Sterling or Euro to the German Borrower, the requested Revolving Borrowing shall be a Eurodollar Borrowing.  If no Interest Period is specified with respect to any requested Eurodollar, then the Borrower Representative shall be deemed to have selected an Interest Period of one month’s duration.  Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

SECTION 2.04.Protective Advances

.  (a) Subject to the limitations set forth below, the Administrative Agent is authorized by the Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion (but shall have absolutely no obligation to), to (i) make Loans to the Domestic Borrowers in U.S. Dollars on behalf of the Lenders, or (ii) make Loans (such Loans, together with the Loans set forth in the foregoing clause (i), the “Protective Advances”) to the German Borrower in the Agreed Currencies on behalf of the Lenders, in each case, which the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (C) following a Default, to pay any other amount chargeable to or required to be paid by the Borrowers pursuant to the terms of this Agreement, including payments of reimbursable expenses (including costs, fees, and expenses as described in Section 9.03) and other sums payable under the Loan Documents; provided that, (w) the U.S. Dollar Amount of the aggregate amount of Protective Advances outstanding at any time shall not at any time exceed 5% of the Aggregate Commitment; provided further, that, after giving effect to the Protective Advances being made the Borrowers shall be in compliance with the Revolving Exposure Limitations.  Protective Advances may be made even if the conditions precedent set forth in Section 4.02 have not been satisfied.  The Protective Advances shall be secured by the Liens in favor of the Administrative Agent in and to the Collateral and shall constitute Obligations hereunder.  All Protective Advances made to a Domestic Borrower in U.S. Dollars shall be ABR Borrowings and all Protective Advances made to the German Borrower shall be Overnight LIBO Rate Borrowings.  The making of a Protective Advance on any one occasion shall not

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obligate the Administrative Agent to make any Protective Advance on any other occasion.  The Administrative Agent’s authorization to make Protective Advances may be revoked at any time by the Required Lenders.  Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof.  At any time that the conditions precedent set forth in Section 4.02 have been satisfied, the Administrative Agent may request the Revolving Lenders to make a Revolving Loan to repay a Protective Advance.  At any other time the Administrative Agent may require the Lenders to fund their risk participations described in Section 2.04(b).

(b)Upon the making of a Protective Advance by the Administrative Agent (whether before or after the occurrence of a Default), each Lender, as applicable, shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Administrative Agent, without recourse or warranty, an undivided interest and participation in such Protective Advance in proportion to its Applicable Percentage.  From and after the date, if any, on which any Lender is required to fund its participation in any Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Applicable Percentage of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Protective Advance.

SECTION 2.05.Swingline Loans

.  (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make, at its sole discretion, (i) Swingline Loans in U.S. Dollars to the Domestic Borrowers on behalf of the Lenders (such Loans, the “Domestic Swingline Loans”) and (ii) Swingline Loans in the Agreed Currencies to the German Borrower on behalf of the Lenders (such Loans, the “German Swingline Loans” and collectively with the Domestic Swingline Loans, the “Swingline Loans”), in each case, from time to time during the Availability Period so long as the making of any such Swingline Loan will not result in either (A) the U.S. Dollar Amount of the aggregate principal amount of outstanding Swingline Loans exceeding $30,000,000, or (B) the U.S. Dollar Amount of the aggregate principal amount of outstanding German Swingline Loans exceeding $10,000,000 (the limitations on Borrowings of Swingline Loans referred to in the foregoing clauses (A) and (B) are referred to collectively as the “Swingline Exposure Limitations”) or (C) the failure to satisfy the Revolving Exposure Limitations; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.  To request a Swingline Loan, the Borrower Representative shall notify the Administrative Agent of such request in writing (delivered by hand or fax) or through Electronic System if arrangements for doing so have been approved by the Administrative Agent (or if an Extenuating Circumstance shall exist, by telephone), in each case, not later than 1:00 p.m., Local Time, on the day of a proposed Swingline Loan.  Each such notice (whether by telephone or written) shall be irrevocable and shall specify (i) the Borrower requesting such Swingline Loan, (ii) the requested date (which shall be a Business Day) of such Swingline Loan, (iii) in the case of a German Swingline Loan, the requested Agreed Currency of such Swingline Loan and (iv) the amount of the requested Swingline Loan.  Each such telephonic Borrowing Request, if permitted, shall be confirmed immediately upon the cessation of the Extenuating Circumstance by hand delivery, fax or a communication through Electronic System to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by a Responsible Officer of the Borrower Representative.  The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower Representative.  The Swingline Lender shall make each Swingline Loan available to the Borrowers by means of a credit to the Funding Account(s) (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e), by remittance to the Issuing Bank, and in the case of repayment of another Loan or fees or expenses as provided by Section 2.18(c), by remittance to the Administrative Agent to be distributed to the Lenders) by 2:00 p.m., Local Time, on the requested date of such Swingline Loan.  Each Domestic Swingline Loan shall be an ABR Loan and each German

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Swingline Loan shall be an Overnight LIBO Rate Loan.  In addition, each Domestic Borrower hereby authorizes the Swingline Lender to, and the Swingline Lender may, in its sole discretion, subject to the terms and conditions set forth herein (but without any further written notice required), not later than 1:00 p.m., Chicago time, on each Business Day, make available to the Domestic Borrowers by means of a credit to the Funding Account, the proceeds of a Domestic Swingline Loan to the extent necessary to pay items to be drawn on any Controlled Disbursement Account that Business Day; provided that, if on any Business Day there is insufficient borrowing capacity to permit the Swingline Lender to make available to the Domestic Borrowers a Domestic Swingline Loan in the amount necessary to pay all items to be so drawn on any such Controlled Disbursement Account on such Business Day, then, subject to satisfaction of the conditions set forth in Section 4.02, the Company shall be deemed to have requested an ABR Borrowing pursuant to Section 2.03 in the amount of such deficiency to be made on such Business Day.

(b)The Swingline Lender shall effect settlement (a “Settlement”) with the Lenders on at least a weekly basis, or on any date that the Swingline Lender elects, by requiring the Lenders to acquire participations in all or a portion  of the outstanding Swingline Loans made by it by written notice given to the Administrative Agent not later than 11:00 a.m., Local Time (i) on the date of such requested Settlement (the “Settlement Date”), in the case of Domestic Swingline Loans and (ii) three (3) Business Days prior to the Settlement Date, in the case of the German Swingline Loans (or on the Settlement Date, if a Default or Event of Default has occurred and is continuing).  Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate.  Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans.  Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans.  Notwithstanding the foregoing, upon the occurrence of (i) the Maturity Date, (ii) any Event of Default described in clause (h), (i) or (j) of Article VII, (iii) the date on which the Loans are accelerated; or (iv) the date on which the Commitments shall be terminated (each, a “Swingline Participation Event”), each Lender shall be deemed to absolutely and unconditionally acquire participations in all of the Swingline Loans outstanding at such time in each case without notice or any further action from the Swingline Lender, any Lender or the Administrative Agent.  Each Lender hereby absolutely and unconditionally agrees, promptly upon the occurrence of such Swingline Participation Event and the receipt by such Lender of a request from the  Swingline Lender or the Administrative Agent for payment thereof and the amount of such payment, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of all such Swingline Loans.  Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Lenders.  The Administrative Agent shall notify the Borrower Representative of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender from any Borrower (or other party on behalf of such Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided

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that, any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to any Borrower for any reason.  The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve any Borrower of any default in the payment thereof.

SECTION 2.06.Letters of Credit

.  (a) General.  Subject to the terms and conditions set forth herein, the Borrower Representative may request the issuance of, and the Issuing Banks agree to issue, Letters of Credit in U.S. Dollars for the account of any Domestic Borrower, and in any Agreed Currency for the account of the German Borrower, in each case, as the applicant thereof for the support of its or its Subsidiaries’ obligations, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time during the Availability Period.  In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any Letter of Credit Agreement, the terms and conditions of this Agreement shall control.  Notwithstanding anything herein to the contrary, the Issuing Bank shall have no obligation hereunder to issue, and shall not issue, any Letter of Credit (i) the proceeds of which would be made available to any Person (A) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the time of such funding, is a Sanctioned Country or (B) in any manner that would result in a violation of any Sanctions by any party to this Agreement, (ii) if any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the Issuing Bank from issuing such Letter of Credit, or any Requirement of Law relating to the Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective Date, or shall impose upon the Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date and which the Issuing Bank in good faith deems material to it, or (iii) if the issuance of such Letter of Credit would violate one or more policies of the Issuing Bank applicable to letters of credit generally; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder 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 not to be in effect on the Effective Date for purposes of clause (ii) above, regardless of the date enacted, adopted, issued or implemented.  All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Effective Date shall be subject to and governed by the terms and conditions hereof. Notwithstanding anything to the contrary herein, the Issuing Bank may, but shall not be obligated to, issue a Letter of Credit that supports the obligation of a Borrower or any of its Subsidiaries in respect of (x) a lease of real property to the extent that the face amount of such Letter of Credit exceeds the highest rent (including all rent-like charges) payable under such lease for a period of one year or (y) an employment contract to the extent that the amount of such Letter of Credit exceeds the highest compensation payable under such contract for a period one year.

(b)Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower Representative shall deliver by hand or fax (or transmit through Electronic System, if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension, it being understood and agreed that the form of any requested German Letters of Credit requested to be issued for the account of a German Loan Party must be in agreed form at least three (3)

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Business Days prior to the issuance thereof (unless the Administrative Agent and the applicable Issuing Bank otherwise agree)) a notice requesting the issuance of a Letter of Credit (which Letter of Credit shall be in a form reasonably acceptable to the Administrative Agent and the Issuing Bank), or identifying the Letter of Credit to be amended, renewed or extended, and specifying the name of the applicable Borrower, the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the Letter of Credit Currency applicable thereto, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.  In addition, as a condition to any such Letter of Credit issuance, the applicable Borrower shall have entered into a continuing agreement (or other letter of credit agreement) for the issuance of letters of credit and/or shall submit a letter of credit application in each case, as required by the Issuing Bank and using such bank's standard form (each, a Letter of Credit Agreement).  A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrowers shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) subject to Sections 1.06 and 2.11(b), the U.S. Dollar Amount of the LC Exposure shall not exceed $75,000,000, (ii) the U.S. Dollar Amount of the German Borrower LC Exposure shall not exceed $10,000,000 and (iii) the Revolving Exposure Limitations shall be satisfied. Notwithstanding the foregoing or anything to the contrary contained herein, no Issuing Bank shall be obligated to issue or modify any Letter of Credit if, immediately after giving effect thereto, the outstanding LC Exposure in respect of all Letters of Credit issued by such Person and its Affiliates would exceed such Issuing Bank’s Issuing Bank Sublimit.  Without limiting the foregoing and without affecting the limitations contained herein, it is understood and agreed that the Borrower Representative may from time to time request that an Issuing Bank issue Letters of Credit in excess of its individual Issuing Bank Sublimit in effect at the time of such request, and each Issuing Bank agrees to consider any such request in good faith.  Any Letter of Credit so issued by an Issuing Bank in excess of its individual Issuing Bank Sublimit then in effect shall nonetheless constitute a Letter of Credit for all purposes of the Credit Agreement, and shall not affect the Issuing Bank Sublimit of any other Issuing Bank, subject to the limitations on the aggregate LC Exposure set forth in clause (i) of this Section 2.06(b).

(c)Expiration Date.  Each Letter of Credit shall expire (or be subject to termination by notice from the Issuing Bank to the beneficiary thereof) at or prior to the close of business on the date that is two (2) Business Days prior to the Maturity Date; provided that any Letter of Credit may provide by its terms that it may be automatically extended for additional successive one year periods (which, except as provided below, shall in no event extend beyond the date that is two (2) Business Days prior to the Maturity Date) on terms reasonably acceptable to the applicable Issuing Bank in its sole discretion; provided further that, if any Letter of Credit is cash collateralized on or prior to the date that is two (2) Business Days prior to the Maturity Date in accordance with Section 2.06(j) or backstopped on terms acceptable to the Administrative Agent and the applicable Issuing Bank, such Letter of Credit may expire up to one year following the Maturity Date.

(d)Participations.  By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the Issuing Bank or the Revolving Lenders, the Issuing Bank hereby grants to each Lender with respect to a Letter of Credit, and each applicable Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.  In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by the applicable Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the applicable Borrower for any reason.  Each

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Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e)Reimbursement.  If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent in U.S. Dollars the U.S. Dollar Amount equal to such LC Disbursement (or, if the Issuing Bank shall so elect in its sole discretion by notice to the Borrower Representative for any Letter of Credit Currency, in such other Letter of Credit Currency which was paid by the Issuing Bank pursuant to such LC Disbursement in an amount equal to such LC Disbursement) not later than 12:00 noon, Local Time, on (a)(i) the Business Day that the Borrower Representative receives notice of such LC Disbursement or (ii) the Business Day immediately following the day that the Borrower Representative receives such notice, if such notice is received after 9:00 a.m., Local Time on the date of receipt; provided that, the Borrower Representative may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.05 that such payment be financed with (i) a Swingline Loan in an amount equal to such LC Disbursement, (ii) to the extent such LC Disbursement was made in U.S. Dollars with respect to a Letter of Credit issued for the benefit of a Domestic Borrower, an ABR Revolving Borrowing in an amount equal to such LC Disbursement, and (iii) to the extent such LC Disbursement was made in an Agreed Currency with respect to a Letter of Credit issued for the benefit of the German Borrower, an Overnight LIBO Rate Revolving Borrowing in an amount equal to such LC Disbursement, in each case, to the extent so financed, the applicable Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Swingline Loan, ABR Revolving Borrowing or Overnight LIBO Rate Borrowing, as applicable.  If the applicable Borrower fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the applicable Borrower in respect thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice, each applicable Revolving Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the applicable Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Revolving Lenders.  Promptly following receipt by the Administrative Agent of any payment from the applicable Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear.  Any payment made by a Revolving Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding Swingline Loan, ABR Revolving Loan or Overnight LIBO Rate Loans as contemplated above) shall not constitute a Loan and shall not relieve the applicable Borrower of its obligation to reimburse such LC Disbursement.

(f)Obligations Absolute.  Each Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any Letter of Credit Agreement or this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) any payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable

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discharge of, or provide a right of setoff against, such Borrower’s obligations hereunder.  None of the Administrative Agent, the Revolving Lenders, the Issuing Bank or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that, the foregoing shall not be construed to excuse the Issuing Bank from liability to any Borrower to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by each Borrower to the extent permitted by applicable law) suffered by such Borrower that are caused by the Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.  In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(g)Disbursement Procedures.  The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit.  The Issuing Bank shall promptly notify the Administrative Agent and the applicable Borrower by telephone (confirmed by fax or through Electronic Systems) of such demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that, any failure to give or delay in giving such notice shall not relieve the Borrowers of their obligation to reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.

(h)Interim Interest.  If the Issuing Bank shall make any LC Disbursement, then, unless the applicable Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that such Borrower reimburses such LC Disbursement, at the rate per annum then applicable to (i) if such Borrower is a Domestic Borrower and such LC Disbursement is denominated in U.S. Dollars, ABR Revolving Loans and (ii) if such Borrower is the German Borrower and such LC Disbursement is denominated in U.S. Dollars, Sterling or Euro, at the Overnight LIBO Rate for such Letter of Credit Currency, in each case, plus the Applicable Rate; and such interest shall be payable on the date when such reimbursement is due; provided that, if any Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall apply.  Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.

(i)Replacement of the Issuing Bank.  

(i)The Issuing Bank may be replaced at any time by written agreement among the Borrower Representative, the Administrative Agent, the replaced Issuing Bank (unless such replaced Issuing Bank is a Defaulting Lender that is not responsive to a request for such written agreement after

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reasonable notice) and the successor Issuing Bank.  The Administrative Agent shall notify the Revolving Lenders of any such replacement of the Issuing Bank.  At the time any such replacement shall become effective, the Borrowers shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b).  From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term Issuing Bank shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.  After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit then outstanding and issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.

(ii)Subject to the appointment and acceptance of a successor Issuing Bank, the Issuing Bank may resign as an Issuing Bank at any time upon thirty days’ prior written notice to the Administrative Agent, the Borrower Representative and the Lenders, in which case, such Issuing Bank shall be replaced in accordance with Section 2.06(i)(i) above.

(j)Cash Collateralization.  If any Event of Default shall occur and be continuing, on the Business Day that the Borrower Representative receives notice from the Administrative Agent or the Required  Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure representing greater than 50% of the aggregate LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, each Borrower shall deposit in one or more accounts with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders (collectively, the “LC Collateral Account”), an amount in cash equal to 103% of the U.S. Dollar Amount of the LC Exposure as of such date plus accrued and unpaid interest thereon for Letters of Credit under which such Borrower is an account party; provided that (i) the portions of such amount attributable to undrawn Foreign Currency Letters of Credit or LC Disbursements in a Foreign Currency that any Borrower is not late in reimbursing shall be deposited in the applicable Foreign Currencies in an amount equal to 103% of the actual amount of such undrawn Letters of Credit and LC Disbursements and (ii) the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to any Borrower described in clause (h) or (i) of Article VII.  For the purposes of this paragraph, the German Borrower LC Exposure shall be calculated using the applicable Exchange Rate on the date notice demanding cash collateralization is delivered to the Company.  Each applicable Borrower shall also deposit cash collateral pursuant to this paragraph as and to the extent required by Sections 2.10(b), 2.11(b) or 2.20.  Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Secured Obligations.  The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the LC Collateral Account and each Borrower hereby grants the Administrative Agent a security interest in the LC Collateral Account.  Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrowers’ risk and expense, such deposits shall not bear interest.  Interest or profits, if any, on such investments shall accumulate in the LC Collateral Account.  Moneys in the LC Collateral Account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrowers for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing greater than 50% of the aggregate LC Exposure), be applied to satisfy other Secured Obligations.  If any Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Company within three (3) Business Days after all such Events of Defaults have been cured

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or waived as confirmed in writing by the Administrative Agent.  The Administrative Agent shall return to the Borrowers cash collateral required by Section 2.11(b) within three (3) Business Days following the date that such cash collateral is no longer required thereunder.  Notwithstanding anything herein to the contrary, (x) cash collateral provided by any Domestic Subsidiary shall be used to pay the Secured Obligations (other than the German Secured Obligations and the Secured Obligations that constitute a Guarantee of the German Secured Obligations) before being used to pay any of the other Secured Obligations, (y) cash collateral provided by any German Restricted Subsidiary shall be used solely to pay the German Secured Obligations and (z) cash collateral provided by any German Loan Party shall be subject to the German Guaranty Limitations.

 

(k)Issuing Bank Reports to the Administrative Agent.  Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date and U.S. Dollar Amount of such LC Disbursement, (iv) on any Business Day on which any Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such LC Disbursement, and (v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.  

(l)LC Exposure Determination.  For all purposes of this Agreement, the amount of a Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at the time of determination.

(m)Letters of Credit Issued for Account of Subsidiaries.  Notwithstanding that a Letter of Credit issued or outstanding hereunder supports any obligations of, or is for the account of, a Subsidiary, or states that a Subsidiary is the “account party,” “applicant,” “customer,” “instructing party,” or the like of or for such Letter of Credit, and without derogating from any rights of the Issuing Bank (whether arising by contract, at law, in equity or otherwise) against such Subsidiary in respect of such Letter of Credit, (i) the Domestic Borrowers shall reimburse, indemnify and compensate the Issuing Bank hereunder for any such Domestic Letter of Credit (including to reimburse any and all drawings thereunder) as if such Domestic Letter of Credit had been issued solely for the account of a Domestic Borrower (ii) the Borrowers shall reimburse, indemnify and compensate the Issuing Bank hereunder for any such German Letter of Credit (including to reimburse any and all drawings thereunder) as if such German Letter of Credit had been issued solely for the account of the German Borrower and (iii) each Borrower irrevocably waives any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit.  Each Borrower hereby acknowledges that the issuance of such Letters of Credit for its Subsidiaries inures to the benefit of the Borrowers, and that each Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

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(n)Foreign Line LCs.  Any Domestic Borrower may request the issuance of Letters of Credit to secure Indebtedness of Subsidiaries of Parent that are not Loan Parties (any such Letters of Credit, “Foreign Line LCs”), or renewals or increases of any such Foreign Lines LCs, subject to (and only in compliance with) the following restrictions: (i) the Domestic LC Exposure with respect to Foreign Line LCs shall not exceed $50,000,000 at any time, (ii) the Indebtedness secured thereby shall be permitted hereunder and (iii) except with respect to Foreign Lines LCs issued on the Effective Date (or such later date as may be agreed to by the Administrative Agent and the beneficiary thereof) to be issued for the benefit of the beneficiaries set forth on Schedule 2.06(n) to secure the credit facilities of Subsidiaries of the Company that are not Loan Parties that are described on such Schedule 2.06(n) in amounts not to exceed the amounts listed for such credit facilities on such Schedule 2.06(n) (and in respect of subsequent renewals or replacements thereof that do not increase the outstanding amount thereof), either (x) the Administrative Agent shall have provided its prior written consent to the applicable Domestic Borrower’s request to cause such Foreign Line LC to be issued, increased or renewed, or (y) (1) the Aggregate Availability shall exceed $75,000,000 after giving pro forma effect to such issuance, increase or renewal of such Foreign Line LC, and (2) the average daily Aggregate Availability for the 30 day period ending on the date of such issuance, increase or renewal shall exceed $75,000,000 (calculated, in the case of any issuance or increase, as if such Foreign Line LC had been so issued or increased on the first day of such 30 day period and remained outstanding for each subsequent day during such 30 day period). The German Borrower may not request the issuance of Letters of Credit to support Indebtedness of any Person other than the German Borrower.

(o)Conflicts with Letter of Credit Agreement.  In the event of a direct conflict between the provisions of this Section 2.06 and any provision contained in any Letter of Credit Agreement, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.06 shall prevail.

SECTION 2.07.Funding of Borrowings

.  (a) Each Lender shall make each Loan to be made by such Lender hereunder on the proposed date thereof by wire transfer of immediately available funds in an amount equal to such Lender’s Applicable Percentage thereof by 1:00 p.m., Local Time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that, Swingline Loans shall be made as provided in Section 2.05.  The Administrative Agent will make such Loans available to the relevant Borrower by promptly crediting the amounts so received, in like funds, to the Funding Account; provided that, Loans made to finance the reimbursement of (i) an LC Disbursement as provided in Section 2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank and (ii) a Protective Advance shall be retained by the Administrative Agent.

(b)Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and such Borrower each severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the NYFRB and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency) and (ii) in the case of such Borrower, (x) if such amount is a Borrowing denominated in U.S. Dollars and made to the Domestic Borrowers, the interest rate applicable to ABR Loans, (y) if

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such amount is a Borrowing denominated in a Foreign Currency and made to the German Borrower, the interest rate applicable to Overnight LIBO Rate Loans and (z) if such amount is a Borrowing made to the German Borrower, the interest rate applicable to Overnight LIBO Rate Loans.  If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing, provided, that any interest received from a Borrower by the Administrative Agent during the period beginning when Administrative Agent funded the Borrowing until such Lender pays such amount shall be solely for the account of the Administrative Agent.

SECTION 2.08.Interest Elections

.  (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower Representative may elect to convert such Borrowing to a different Type as permitted by this Agreement or to continue such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as provided in this Section.  The Borrower Representative may elect different options with respect to different portions of the affected 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.  This Section shall not apply to Swingline Borrowings or Protective Advances, which may not be converted or continued.

(b)To make an election pursuant to this Section, the Borrower Representative shall notify the Administrative Agent of such election either in writing (delivered by hand or fax) by delivering an Interest Election Request signed by a Responsible Officer of the Borrower Representative or through Electronic System if arrangements for doing so have been approved by the Administrative Agent (or if an Extenuating Circumstance shall exist, by telephone) (provided that, Borrowings made to the German Borrower require irrevocable written notice (via an Interest Election Request signed by a Responsible Officer of the Borrower Representative) and cannot be made by telephone) by the time that a Borrowing Request would be required under Section 2.03 if the Borrower Representative were requesting a Revolving Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such Interest Election Request shall be irrevocable and each such telephonic Interest Election Request, if permitted, shall be confirmed immediately upon the cessation of the Extenuating Circumstance by hand delivery, Electronic System or fax to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by a Responsible Officer of the Borrower Representative.  Notwithstanding any contrary provision herein, this Section shall not be construed to permit any Borrower, or the Borrower Representative on its behalf, to (i) change the currency of any Borrowing, (ii) elect an Interest Period for Eurodollar Loans that does not comply with Section 2.02 or (iii) convert any Borrowing to a Borrowing of a Type not available under such Borrowing or to such Borrower.

(c)Each written (or if permitted, telephonic) Interest Election Request (including requests submitted through Electronic System) shall specify the following information in compliance with Section 2.02:

(i)the name of the applicable Borrower and 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;

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(iii)whether the existing and resulting Borrowing is a Domestic Borrowing or a German Borrowing;

(iv)whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

(v)if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period and Agreed Currency 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 applicable 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 Representative 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 (i) in the case of a Borrowing by a Domestic Borrower denominated in U.S. Dollars, such Borrowing shall be converted to an ABR Borrowing and (ii) in the case of a Borrowing by the German Borrower in any Agreed Currency, such Borrowing shall automatically continue as a Eurodollar Borrowing in the same Agreed Currency with an Interest Period of one month unless such Eurodollar Borrowing is or was repaid in accordance with Section 2.11.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower Representative, then, so long as an Event of Default is continuing (i) no outstanding Revolving Borrowing denominated in U.S. Dollars and made to a Domestic Borrower may be converted to or continued as a Eurodollar Borrowing, (ii) unless repaid, each Eurodollar Revolving Borrowing denominated in U.S. Dollars and made to the Company shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto, (iii) unless repaid, each Eurodollar Revolving Borrowing denominated in a Foreign Currency and made to the Company shall automatically be continued as a Eurodollar Borrowing with an Interest Period of one month and (iv) unless repaid, each Eurodollar Revolving Borrowing made to the German Borrower shall automatically be continued as a Eurodollar Borrowing with an Interest Period of one month.

SECTION 2.09.Termination and Reduction of Commitments; Increase in Commitments

.  (a) Unless previously terminated, all Commitments shall terminate on the Maturity Date.

(b)The Borrowers may at any time terminate the Commitments upon (i) the payment in full of all outstanding Loans, together with accrued and unpaid interest thereon, (ii) the cancellation and return of all outstanding Letters of Credit unless any such Letter of Credit has been cash collateralized in the manner set forth in Section 2.06(j) or the applicable Borrower has provided a backstop letter of credit in such amount and otherwise in form and substance acceptable to the applicable Issuing Bank and the Administrative Agent, (iii) the payment in full of accrued and unpaid fees and (iv) the payment in full of all reimbursable expenses and other Obligations (other than Unliquidated Obligations), together with accrued and unpaid interest thereon.

(c)The Borrowers may from time to time reduce the Commitments (including reductions of the Commitments to zero); provided that (i) each reduction of the Commitments shall be not less than $10,000,000 (unless the Commitments are being reduced to zero and the amount of the Commitments in

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effect immediately prior to such reduction are less than $10,000,000) and (ii) the Borrower Representative shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.11, the Borrowers shall not be in compliance with the Revolving Exposure Limitations.

(d)The Borrower Representative shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) or (c) of this Section at least three (3) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower Representative pursuant to this Section shall be irrevocable; provided that, a notice of termination of the Commitments delivered by the Borrower Representative may state that such notice is conditioned upon the effectiveness of another financing, refinancing or conditional event, in which case such notice may be revoked by the Borrower Representative (by notice to the Administrative Agent on or prior to the specified effective date) if such financing, refinancing or conditional event does not occur.  Any termination or reduction of the Commitments shall be permanent.  Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.

(e)The Borrowers shall have the right to increase the Commitments by obtaining additional Commitments, either from one or more of the Lenders (an “Increasing Lender”) or another lending institution (other than an Ineligible Institution) (“an “Augmenting Lender”); provided that (i) any such request for an increase shall be in a minimum amount of $25,000,000, (ii) the Borrower Representative may make a maximum of four (4) such requests during the term of this Agreement, (iii) after giving effect thereto, the sum of the total of the additional Commitments does not exceed $100,000,000, (iv) the Administrative Agent and the Issuing Bank have approved the identity of any such Augmenting Lender, such approvals not to be unreasonably withheld, (v) any such Augmenting Lender assumes all of the rights and obligations of a “Lender” hereunder and (vi) the procedure described in Section 2.09(f) have been satisfied.  In connection with, and to the extent of, an increase to the Commitments pursuant to the foregoing sentence, the Borrowers may request an increase to the German Sublimit; provided that (A) after giving effect thereto, the aggregate amount of the German Sublimit shall not exceed $125,000,000 and (B) the increase to the German Sublimit shall not exceed the amount of the increase to the Commitments pursuant to which the increase to the German Sublimit was requested.  Nothing contained in this Section 2.09 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Commitment hereunder at any time.  

(f)Any amendment hereto for such an increase or addition shall be in form and substance satisfactory to the Administrative Agent and shall only require the written signatures of the Administrative Agent, the Borrowers and each Increasing Lender or Augmenting Lender, as the case may be.  As a condition precedent to such an increase or addition, the Borrowers shall deliver to the Administrative Agent, to the extent reasonably requested by the Administrative Agent (including after giving due consideration to whether such increase or addition is to the Commitment) (i) a certificate of each Loan Party signed by an authorized officer of such Loan Party (A) certifying and attaching the resolutions  adopted by such Loan Party approving or consenting to such increase and (B) in the case of the Borrowers, certifying that, before and after giving effect to such increase or addition, (1) the representations and warranties contained in Article III and the other Loan Documents are true and correct in all material respects (or, with respect to any representation or warranty which by its terms is made as of an earlier date, is true and correct in all material respects as of such earlier date or, with respect to any representation or warranty which is subject to any materiality qualifier, is true and correct in all respects), (2) no Default exists and (3) if the covenant set forth in Section 6.12 is in effect, the Borrowers are in compliance (on a Pro Forma Basis) with the covenant contained in Section 6.12 on the date of such increase and (ii) the Administrative Agent shall have received documents consistent with those delivered

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on the Effective Date as to the corporate power and authority of the Borrowers to borrow hereunder after giving effect to such increase, and legal opinions consistent with those delivered on the Effective Date with respect to such power and authority and other matters to the extent reasonably requested by the Administrative Agent; provided that, with respect to any increase in the Commitments incurred for the primary purpose of financing a Limited Condition Acquisition (Acquisition-Related Incremental Commitments), with the consent of each Lender providing such Acquisition-Related Incremental Commitments, (x) clauses (B)(1) and (B)(2) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Condition Acquisition Agreement, no Default is in existence or would result from entry into such Limited Condition Acquisition Agreement, (2) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, no Event of Default under clause (a), (b), (h), (i) or (j) of Article VII is in existence immediately before or immediately after giving effect to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Condition Acquisition Agreement (or, to the extent such representation and warranty is stated to relate solely to an earlier date, as of such earlier date) and (4) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary SunGard representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower Representative) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the incurrence of such Acquisition-Related Incremental Commitment (or, to the extent such representation and warranty is stated to relate solely to an earlier date, as of such earlier date) and (y) at the option of the Borrower Representative (notified in writing to the Administrative Agent on or prior to the date of execution of the applicable Limited Condition Acquisition Agreement) and with the consent of each Lender being added or increasing its Commitment, the condition in clause (B)(3) above shall be deemed to be satisfied if such condition is satisfied on the date of execution of the applicable Limited Condition Acquisition Agreement on a Pro Forma Basis after giving effect to such Limited Condition Acquisition, recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available, as if such acquisition (and any related incurrence or repayment of Indebtedness) had occurred on the first day of each relevant period for testing such compliance.

(g)On the effective date of any such increase or addition, any Increasing Lender increasing (or, in the case of any Augmenting Lender, extending) its Commitment shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders that have a Commitment, as being required in order to cause, after giving effect to such increase or addition and the use of such amounts to make payments to such other Lenders, each such Lender’s portion of the outstanding Loans of all the Lenders to equal its revised Applicable Percentage of such outstanding Loans and the Administrative Agent shall make such other adjustments among the Lenders with respect to the Loans then outstanding and amounts of principal, interest, commitment fees and other amounts paid or payable with respect thereto as shall be necessary, in the opinion of the Administrative Agent, in order to effect such reallocation, subject, in each case, to indemnification by the Borrowers pursuant to the provisions of Section 2.16.

SECTION 2.10.Repayment and Amortization of Loans; Evidence of Debt

.  (a) Each Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Revolving Lender the then unpaid principal amount of each Revolving Loan made to such Borrower on the Maturity Date in the currency of such Loan, (ii) to the Administrative Agent the then unpaid amount of each Protective Advance made for the account of such Borrower on the earlier of the Maturity Date and demand by the Administrative Agent and (iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan made for the account of such Borrower on the earliest of (x) the Maturity

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Date and (y) the first date after such Swingline Loan is made that is the 15th or last day of a calendar month (subject to Section 2.18 in the event any such date is not a Business Day) and is at least two (2) Business Days after such Swingline Loan is made; provided that, on each date that a Revolving Loan is made, the applicable Borrower shall repay all Swingline Loans then outstanding and the proceeds of any such Revolving Loan shall be applied by the Administrative Agent to repay any Swingline Loans outstanding; provided, further, that, subject to satisfaction of the conditions set forth in Section 4.02, to the extent not earlier paid, the applicable Borrower shall automatically be deemed to have requested an ABR Revolving Loan on the date such Swingline Loans are required to be repaid in an amount necessary to satisfy the requirement of this clause (y). To the extent this Section 2.10 creates an obligation of the German Borrower to repay Loans of any other Borrower, such obligations shall be subject to the German Guaranty Limitations.

(b)At all times during a Cash Dominion Period, on each Business Day, the Administrative Agent shall apply all funds credited to any Collection Account on such Business Day or the immediately preceding Business Day (at the discretion of the Administrative Agent, whether or not immediately available) first to prepay any Protective Advances that may be outstanding, second to prepay the Revolving Loans (including Swingline Loans) and third to cash collateralize outstanding LC Exposure (provided that, collections and cash collateral provided by any Foreign Subsidiary shall be used solely to pay the German Secured Obligations, and collections, the application of funds credited to any Collection Account of the German Borrower, and cash collateral provided by any German Loan Party shall be subject to the German Guaranty Limitations).  Notwithstanding the foregoing, funds of the Domestic Loan Parties credited to any Collection Account shall be used to pay the Secured Obligations (other than the German Secured Obligations and the Secured Obligations that constitute a Guarantee of the German Secured Obligations) prior to being used to pay any of the other Secured Obligations.

(c)Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Indebtedness of each Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(d)The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class, Agreed Currency and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(e)The Register and corresponding entries made in the accounts maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that, the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of any Borrower to repay the Loans in accordance with the terms of this Agreement.

(f)Any Lender may request that Loans made by it to any Borrower be evidenced by a promissory note.  In such event, the relevant Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the Lender or its registered assigns and in a form approved by the Administrative Agent and the Borrowers.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee or its registered assigns.

SECTION 2.11.Prepayment of Loans

.  (a) Any Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to the payment of any accrued

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interest to the extent required by Section 2.13 and, if applicable, the payment of any break funding expenses under Section 2.16, but otherwise without premium or penalty.

(b)If, at any time, (i) other than as a result of fluctuations in currency exchange rates, the Borrowers are not in compliance with the Revolving Exposure Limitations (calculated with respect to Credit Events denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Credit Event) or (ii) solely as a result of fluctuations in currency exchange rates, the Borrowers exceeded any Revolving Exposure Limitation by 105% of the applicable threshold, the applicable Borrowers who have exceeded such limits with respect to their Obligations shall in each case immediately repay Borrowings or cash collateralize LC Exposure in accordance with Section 2.06(j), as applicable, in an aggregate amount equal to such excess (without a corresponding reduction to the Commitments).  If, at any time, (i) other than as a result of fluctuations in currency exchange rates, the Borrowers are not in compliance with the Swingline Exposure Limitations (calculated with respect to Credit Events denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Credit Event) or (ii) solely as a result of fluctuations in currency exchange rates, the Borrowers exceeded any Swingline Exposure Limitation by 105% of the applicable threshold, the applicable Borrowers who have exceeded such limits with respect to their Obligations shall in each case immediately repay Domestic Swingline Loans or German Swingline Loans, as applicable, in an aggregate amount equal to such excess (without a corresponding reduction to the Commitments).  To the extent this Section 2.11 creates an obligation of the German Borrower to repay Borrowings of any other Borrower, the German Guaranty Limitations shall apply.

(c)In the event and on each occasion that any Net Proceeds are received by or on behalf of any Loan Party in respect of any Prepayment Event, such Loan Party shall, within three (3) Business Days after such Net Proceeds are received by such Loan Party, prepay the Obligations and cash collateralize LC Exposure as set forth in Section 2.11(d) below in an aggregate amount equal to 100% of such Net Proceeds (without any reduction to the Commitments); provided that, in the case of any event described in clause (a)(x) or (b) of the definition of the term “Prepayment Event” only, if no Default or Event of Default has occurred and is continuing or would result therefrom, and the Borrower Representative shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Loan Parties intend to apply the Net Proceeds from such event (or a portion thereof specified in such certificate), within 270 days after receipt of such Net Proceeds, to acquire (or replace or rebuild) tangible assets (excluding inventory) to be used in the business of the Loan Parties, and certifying that no Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds specified in such certificate; provided, further that, (i) to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 270-day period (or within a period of 90 days thereafter if by the end of such initial 270-day period the applicable Loan Parties or their Subsidiaries shall have entered into a binding commitment to reinvest such Net Proceeds), a prepayment shall be required at such time in an amount equal to such Net Proceeds that have not been so applied and (ii) the Borrowers shall not be permitted to make elections to use Net Proceeds to acquire (or replace or rebuild) tangible assets (excluding inventory) with respect to Net Proceeds in any fiscal year in an aggregate amount in excess of $25,000,000.  Notwithstanding the foregoing, to the extent that, as a result of such Prepayment Event, the Borrowers would not be in compliance with the Revolving Exposure Limitations immediately after giving effect to such Prepayment Event, the Borrower shall prepay the Loans to the extent required by Section 2.11(b).  

(d)

All such amounts pursuant to Section 2.11(c) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, and second to prepay the Revolving Loans (including Swingline Loans) without a corresponding reduction in the Commitments and third, if an Event of Default shall have occurred and be continuing, to cash collateralize outstanding LC Exposure.  Notwithstanding the foregoing, (i) Net Proceeds received by any Domestic Loan Party in respect of any

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Prepayment Event shall be used to prepay the Secured Obligations (other than the German Secured Obligations and the Secured Obligations that constitute a Guarantee of the German Secured Obligations) before being applied to any of the other Secured Obligations, (ii) no Net Proceeds received by any German Loan Party in respect of any Prepayment Event shall be used to prepay any Secured Obligations other than the German Secured Obligations and (iii) Net Proceeds received by any German Loan Party in respect of any Prepayment Event shall be subject to the German Guaranty Limitations.

SECTION 2.12.Fees

.  (a) Each Borrower agrees to pay to the Administrative Agent for the account of each Lender a commitment fee, which shall accrue at a rate equal to 0.250% per annum on the average daily amount of such Lender’s Percentage of the Unused Commitment during the period from and including the Effective Date to but excluding the date on which the Commitments terminate.  Accrued commitment fees shall be payable in arrears (x) promptly on, but in any case, no later than two (2) Business Days after, the first Business Day of each calendar quarter and (y) on the date on which the Commitments terminate, commencing on the first such date to occur after the date hereof.  All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(b)Each Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender a participation fee with respect to its participations in Letters of Credit issued for the account of any Borrower, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving Loans on the average daily U.S. Dollar Amount of such Lender’s LC Exposure in respect thereof (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily U.S. Dollar Amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable to Letters of Credit issued by the Issuing Bank for the account of such Borrower during the period from and including the Effective Date to but excluding the later of the date of termination of the Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees and commissions with respect to the issuance, amendment, cancellation, negotiation, transfer, presentment, renewal or extension of any Letter of Credit issued for the account of such Borrower or processing of drawings thereunder.  Participation fees and fronting fees accrued through and including the last day of each calendar quarter shall be payable in arrears in arrears promptly on, but in any case, no later than two (2) Business Days after, the first Business Day of each calendar quarter, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the Commitments terminate and any such fees accruing after the date on which the Commitments terminate shall be payable on demand.  Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within ten (10) Business Days after demand.  All participation fees and fronting fees in respect of Letters of Credit denominated in Agreed Currencies (other than Sterling) shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  All participation fees and fronting fees in respect of Letters of Credit denominated in Sterling shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  Participation fees and fronting fees in respect of Letters of Credit denominated in U.S. Dollars shall be paid in U.S. Dollars, and participation fees and fronting fees in respect of Letters of Credit denominated in a Foreign Currency shall be paid in such Foreign Currency.

(c)The Company agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Company and the Administrative Agent.

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(d)All fees payable hereunder shall be paid on the dates due, in U.S. Dollars (except as otherwise expressly provided in this Section 2.12) and in immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders.  Fees paid shall not be refundable under any circumstances.

SECTION 2.13.Interest

.  (a) The Loans comprising each ABR Borrowing (including each Swingline Loan made to a Domestic Borrower) shall bear interest at the Alternate Base Rate plus the Applicable Rate. The Loans comprising each Overnight LIBO Rate Borrowing (including each Swingline Loan denominated in U.S. Dollars and made to the German Borrower) shall bear interest at the Overnight LIBO Rate plus the Applicable Rate.

(b)The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.

(c)Each Protective Advance made to a Domestic Borrower and denominated in U.S. Dollars shall bear interest at the Alternate Base Rate plus the Applicable Rate plus 2%.  Each Protective Advance made to the German Borrower and denominated in an Agreed Currency shall bear interest at the Overnight LIBO Rate plus the Applicable Rate plus 2%.

(d)Notwithstanding the foregoing, if any principal of or interest on any Loan (other than Protective Advances) or any fee or other amount payable by any Loan Party hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of such Loan, 2% plus the  rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.

(e)Accrued interest on each Loan (for ABR Loans and Overnight LIBO Rate Loans, accrued through the last day of the prior calendar month) shall be payable in arrears on each Interest Payment Date for such Loan and upon termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan and Overnight LIBO Rate Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(f)All interest hereunder shall be computed on the basis of a year of 360 days, except that interest (i) computed by reference to the Alternate Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and (ii) for Borrowings denominated in Sterling shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable Alternate Base Rate, Adjusted LIBO Rate, LIBO Rate or Overnight LIBO Rate shall be determined by the Administrative Agent in accordance with their terms, and such determination shall be conclusive absent manifest error.

(g)For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of interest or fees to which the rates of interest or fees provided in this Agreement and the other Loan Documents (and stated herein or therein, as applicable, to be computed on the basis of 360 days or any other period of time less than a calendar year) are equivalent are the rates so determined multiplied by the

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actual number of days in the applicable calendar year and divided by 360 or such other period of time, respectively.

SECTION 2.14.Alternate Rate of Interest.

(a)If prior to the commencement of any Interest Period for a Eurodollar Borrowing:

(i)the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including by means of an Interpolated Rate or because the LIBO Screen Rate is not available or published on a current basis) for such Interest Period; or

(ii)the Administrative Agent is advised by any Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period or the applicable Agreed Currency;

then the Administrative Agent shall give notice thereof to the Borrower Representative and the Lenders through Electronic System as provided in Section 9.01 as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, (A) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and unless repaid, (I) in the case of a Eurodollar Borrowing denominated in U.S. Dollars to a Domestic Borrower, such Borrowing shall be made as an ABR Borrowing and (II) in the case of a Eurodollar Borrowing to the German Borrower, such Eurodollar Borrowing shall be made as an Alternate Rate Borrowing, (B) if any Borrowing Request requests a Eurodollar Borrowing in U.S. Dollars to a Domestic Borrower, such Borrowing shall be made as an ABR Borrowing, and (C) if any Borrowing  Request requests a Eurodollar Borrowing denominated in an Agreed Currency to the German Borrower, such Borrowing Request shall be made as an Alternate Rate Borrowing; provided that, if such circumstances only affect one Class or Type of Borrowing or currency, then the foregoing will only be applicable to the affected Class or Type of Borrowing or currency.

(b)If any Lender determines that any Requirement of Law has made it unlawful, or if any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain, fund or continue any Eurodollar Borrowing, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower Representative through the Administrative Agent, any obligations of such Lender to make, maintain, fund or continue Eurodollar Loans or to convert ABR Borrowings to Eurodollar Borrowings will be suspended until such Lender notifies the Administrative Agent and the Borrower Representative that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowers will upon demand from such Lender (with a copy to the Administrative Agent), either (i) (x) with respect to any Eurodollar Borrowings denominated in U.S. Dollars for a Domestic Borrower, convert such Eurodollar Borrowings to ABR Borrowings, and (y) with respect to any Eurodollar Borrowings denominated in an Agreed Currency for the German Borrower, convert such Eurodollar Borrowings to Alternate Rate Borrowings, or (ii) prepay all Eurodollar Borrowings of such Lender, in each case of the foregoing clauses (i) and (ii), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Borrowings to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans.  Upon any such conversion or prepayment, the Borrowers will also pay accrued interest on the amount so converted or prepaid.

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(c)If at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made a public statement that the administrator of the LIBO Screen Rate is insolvent (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate may no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrower Representative shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate).  Notwithstanding anything to the contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment.  Until an alternate rate of interest shall be determined in accordance with this clause (c) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.14(c), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and any such Eurodollar Borrowing shall be repaid or (A) with respect to Eurodollar Borrowings denominated in U.S. Dollars for a Domestic Borrower, converted into an ABR Borrowing, and (B) with respect to any Eurodollar Borrowings denominated in an Agreed Currency for the German Borrower, converted into an Alternate Rate Borrowing, in each case of the foregoing clauses (A) and (B), on the last day of the then current Interest Period applicable thereto, and (y) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made (A) with respect to Eurodollar Borrowings denominated in U.S. Dollars for a Domestic Borrower, as an ABR Borrowing and (B) with respect to any Eurodollar Borrowings denominated in an Agreed Currency for the German Borrower, as an Alternate Rate Borrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

(d)If at any time the Administrative Agent determines in good faith (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Overnight LIBO Rate or the Overnight LIBO Rate will not adequately and fairly reflect the cost to the Administrative Agent or the Swingline Lender, as applicable, of making or maintaining Protective Advances, or Swingline Loans, the Administrative Agent or Swingline Lender, as applicable, shall give notice thereof to the Borrower Representative and the Lenders by telephone (provided that, any notice to any Swingline Lender providing German Swingline Loans to a German Loan Party must be given in writing) or fax as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, Overnight LIBO Rate Borrowings shall be made as Alternate Rate Borrowings.

SECTION 2.15.Increased Costs

.  (a) If any Change in Law shall:

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(i)impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank in a manner consistent with similarly situated customers of the applicable Lender or Issuing Bank;

(ii)impose on any Lender or the Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or

(iii)subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (e) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or maintaining any Loan or of maintaining its obligation to make any such Loan (including pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to increase the cost to such Lender, the Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (including pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency) or to reduce the amount of any sum received or receivable by such Lender, the Issuing Bank or such other Recipient hereunder, whether of principal, interest or otherwise (including pursuant to any conversion of any Borrowing denominated in an Agreed Currency into a Borrowing denominated in any other Agreed Currency), then the applicable Borrower will pay to such Lender, the Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, the Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered as reasonably determined by the Administrative Agent, such Lender or the Issuing Bank (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and generally consistent with similarly situated customers of the Administrative Agent, such Lender or the Issuing Bank, as applicable, under agreements having provisions similar to this Section 2.15, after consideration of such factors as the Administrative Agent, such Lender or the Issuing Bank, as applicable, then reasonably determines to be relevant; provided that none of the Administrative Agent, such Lender or the Issuing Bank, as applicable, shall be required to disclose any confidential or proprietary information in connection therewith).

(b)If any Lender or the Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of or the Loans made by, or participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy and liquidity), then from time to time the applicable Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered as reasonably determined by the Administrative Agent, such Lender or the Issuing Bank (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and generally consistent with similarly situated customers of the Administrative Agent, such Lender or the Issuing Bank, as applicable, under agreements having provisions similar to this

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Section 2.15, after consideration of such factors as the Administrative Agent, such Lender or the Issuing Bank, as applicable, then reasonably determines to be relevant; provided that none of the Administrative Agent, such Lender or the Issuing Bank, as applicable, shall be required to disclose any confidential or proprietary information in connection therewith)

(c)A certificate of a Lender or the Issuing Bank setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section, shall be delivered to the Company and shall be conclusive absent manifest error.  The Company shall pay, or cause the other Borrowers to pay, such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

(d)Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation; provided that, the Loan Parties shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Borrower Representative of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

SECTION 2.16.Break Funding Payments

.  In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result of any prepayment pursuant to Section 2.11), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.09(d) and is revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 2.19 or 9.02(e), then, in any such event, the applicable Borrowers shall compensate each Lender for the loss, cost and expense attributable to such event (provided that (i) each German Borrower shall only be required to compensate each Lender in respect of Borrowings of the German Borrowers and (ii) each German Borrower shall only be required to compensate each Lender subject to the German Guaranty Limitations).  In the case of a Eurodollar Loan, such actual loss, cost or expense to any Lender shall include an amount determined by such Lender to be the excess, if any, and to the extent actually incurred by such Lender of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan (exclusive of the Applicable Rate), for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Eurodollar Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for the relevant currency of a comparable amount and period from other banks in the Eurodollar market.  A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower Representative and shall be conclusive absent manifest error.  The Borrower Representative shall pay such Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

SECTION 2.17.Withholding of Taxes; Gross-Up

.  (a) Payments Free of Taxes.  Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be

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made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings of Indemnified Taxes applicable to additional sums payable under this Section 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b)Payment of Other Taxes by the Loan Parties.  The relevant Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, Other Taxes.

(c)Evidence of Payments.  As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.17, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(d)Indemnification by the Loan Parties.  Without duplication of any amount indemnified pursuant to Section 9.03(a), the Loan Parties shall jointly and severally (but subject to the limitations set forth in Section 9.20) indemnify each Recipient, within ten (10) Business Days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to 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, (i) for 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) for 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) for 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.  

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(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 Representative and the Administrative Agent, at the time or times reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower Representative or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding (e.g., a certificate of residence issued by the competent Tax authority in the jurisdiction where the relevant Loan Party is resident).  In addition, any Lender, if reasonably requested by the Borrower Representative or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower Representative or the Administrative Agent as will enable the Borrower Representative 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 any Borrower is a U.S. Person,

(A)any Lender that is a U.S. Person shall deliver to the Borrower Representative 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 Representative or the Administrative Agent), an executed copy of IRS Form W‑9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;

(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower Representative 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 Representative 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 copy of IRS Form W‑8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such Tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W‑8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such Tax treaty;

(2)in the case of a Foreign Lender claiming that its extension of credit will generate U.S. effectively connected income, an executed copy of 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 E‑1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W‑8BEN or IRS Form W-8BEN-E; or

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(4)to the extent a Foreign Lender is not the Beneficial Owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W‑8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3, IRS Form W-9, and/or other certification documents from each Beneficial Owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner;

(C)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative 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 Representative or the Administrative Agent), executed copies 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 Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)if a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower Representative and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower Representative or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and the Administrative Agent in writing of its legal inability to do so.

(g)Treatment of Certain Refunds.  If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and

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the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph (g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(h)VAT.

(i)All amounts expressed to be payable under any Loan Document by any Loan Party to any Secured Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply and accordingly, subject to Section 2.17(h)(ii) below, if VAT is or becomes chargeable on any supply made by any Secured Party to any Loan Party under a Loan Document and such Secured Party is required to account to the relevant tax authority for the VAT, that Loan Party must pay to such Secured Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Secured Party shall promptly provide an appropriate VAT invoice to that Loan Party). In relation to any supply made by a Secured Party to any Loan Party under a Loan Document, if reasonably requested by such Secured Party, that Loan Party must promptly provide such Secured Party with details of that Loan Party's VAT registration and such other information as is reasonably requested in connection with such Secured Party's VAT reporting requirements in relation to such supply.

(ii)If VAT is or becomes chargeable on any supply made by any Secured Party (the “Supplier”) to any other Secured Party (the “Customer”) under a Loan Document and any party other than the Customer (the “Relevant Party”) is required by the terms of any Loan Document to pay an amount equal to the consideration for that supply to the supplier (rather than being required to reimburse or indemnify the Customer in respect of that consideration, then:

(A)if the Supplier is the Person required to account to the relevant tax authority for the VAT, the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT.  The Customer must (where this paragraph (A) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Customer receives from the relevant tax authority which the Customer reasonably determines relates to the VAT chargeable on that supply; and

(B)if the Customer is the Person required to account to the relevant tax authority for the VAT, the Relevant Party must promptly, following demand from the Customer, pay to the Customer an amount equal to the VAT chargeable on that supply but only to the extent that the Customer reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

(iii)Where a Loan Document requires any Loan Party to reimburse or indemnify a Secured Party for any cost or expense that Loan Party shall reimburse or indemnify (as the case may be) such Secured Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Secured Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

(iv)Any reference in this Section 2.17(h) to any Secured Party or Loan Party shall, at any time when such Secured Party or Loan Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member or “parent” of such group at such time (the term “representative member” and “parent” to have the same meaning as in the Value Added Tax Act 1994 of England and Wales or applicable legislation in

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other jurisdictions having implemented Council Directive 2006/112 EC on the common system of value added tax).

(i)Survival.  Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

(j)Defined Terms.  For purposes of this Section 2.17, the term “Lender” includes any Issuing Bank and the term “applicable law” includes FATCA.

SECTION 2.18.Payments Generally; Allocation of Proceeds; Sharing of Setoffs

.  (a) Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 2:00 p.m., Local Time, on the date when due, in immediately available funds, without setoff, recoupment or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.   Other than payments to be made directly to the Issuing Bank or Swingline Lender as expressly provided herein, all payments shall be made (i) in the same currency in which the applicable Credit Event was made and (ii) to the Administrative Agent at its offices at 10 South Dearborn Street, 22nd Floor, Chicago, Illinois; provided that, (x) in the case of a Credit Event denominated in Sterling or Euro, such payments shall be made to the Administrative Agent’s Eurodollar Payment Office for such currency and (y) payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any such payments denominated in the same currency received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.  Unless otherwise provided for herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  Notwithstanding the foregoing provisions of this Section, if, after the making of any Credit Event in any Foreign Currency, currency control or exchange regulations are imposed in the country which issues such currency with the result that the type of currency in which the Credit Event was made (the “Original Currency”) no longer exists, or any Borrower is not able to make payment to the Administrative Agent for the account of the Lenders in such Original Currency, or the terms of this Agreement require the conversion of such Credit Event into U.S. Dollars, then all payments to be made by such Borrower hereunder in such currency shall, to the fullest extent permitted by law, instead be made when due in U.S. Dollars in an amount equal to the U.S. Dollar Amount (as of the date of repayment) of such payment due, it being the intention of the parties hereto that the Borrowers take all risks of the imposition of any such currency control or exchange regulations or conversion, and each Borrower agrees to indemnify and hold harmless the Swingline Lender, the Issuing Bank, the Administrative Agent and the Lenders from and against any loss resulting from any Credit Event made to or for the benefit of such Borrower denominated in a Foreign Currency that is not repaid to the Swingline Lender, the Issuing Bank, the Administrative Agent or the Lenders, as the case may be, in the Original Currency.

(b)Any proceeds of Collateral received by the Administrative Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (C) amounts to be applied from the Collection Account during a Cash Dominion Period (which shall be applied in accordance with Section 2.10(b)) or (ii) after an Event of Default has occurred and is continuing and the Required Lenders so direct the Administrative Agent, shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including

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amounts then due to the Administrative Agent and the Issuing Bank from the Borrowers (other than in connection with Banking Services Obligations or Swap Agreement Obligations), second, to pay any fees, indemnities or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking Services Obligations or Swap Agreement Obligations), third, to pay interest due in respect of the Protective Advances, fourth, to pay the principal of the Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Protective Advances) ratably, sixth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements and to pay any amounts owing in respect of Banking Services Obligations and Swap Agreement Obligation up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, for which Reserves have been established, ratably, seventh, to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid LC Disbursements, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing with respect to Banking Services Obligations and Swap Agreement Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22 and to the extent not paid pursuant to clause sixth above, ninth, to pay any amounts owing in respect of any Designated Secured Foreign Products, and tenth, to the payment of any other Secured Obligation due to the Administrative Agent or any Lender by the Borrowers.  Notwithstanding the foregoing, amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation of such Loan Party.  Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower Representative, or unless an Event of Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan of a Class, except (a) on the expiration date of the Interest Period applicable thereto or (b) in the event, and only to the extent, that there are no outstanding ABR Loans of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16.  If an Event of Default has occurred and is continuing, the Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations.  Notwithstanding the foregoing, (x) any such applicable proceeds from property of the Domestic Loan Parties shall be applied to the Secured Obligations (other than the German Secured Obligations and the Secured Obligations that constitute a Guarantee of the German Secured Obligations) before being applied to any of the other Secured Obligations, (y) the application of any such applicable proceeds from Collateral securing solely the German Secured Obligations shall only be made in respect of the German Secured Obligations in the same order set forth above, and (z) the application of any such applicable proceeds from Collateral granted by any German Loan Party shall be subject to the German Guaranty Limitations (in respect of Collateral granted under the German Collateral Documents as set forth in the German Collateral Documents).

(c)At the written election of the Administrative Agent and unless instructed by the Borrower Representative prior to the due date therefor that payment will otherwise be made, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including 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 Representative pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account (other than payroll accounts, trust accounts and employee benefit accounts that constitute Excluded Accounts) of any Borrower maintained with the Administrative Agent; provided that (i) proceeds deducted from any deposit account of the German Borrower shall only be used to pay the German Secured Obligations and (ii) proceeds of any Borrowing of the German Borrower and proceeds deducted from any deposit account of any German Borrower shall only be used to pay amounts owed by such German Borrower or any of its Subsidiaries.  Each Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due

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under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03, 2.04 or 2.05, as applicable, and (ii) the Administrative Agent to charge any deposit account (other than payroll accounts, trust accounts and employee benefit accounts that constitute Excluded Accounts) of the relevant Borrower maintained with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.

(d)If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements and Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the applicable Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements and Swingline Loans; 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 any 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 or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).  Each 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 such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.  Notwithstanding the foregoing, any such applicable payment from a German Loan Party shall only be used to purchase a participation in a German Secured Obligation in the same order set forth above.

(e)Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due.  In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank 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 NYFRB and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including the Overnight Foreign Currency Rate in the case of Loans denominated in a Foreign Currency).

(f)The Administrative Agent may from time to time provide the Borrowers with account statements or invoices with respect to any of the Secured Obligations (the “Statements”).  The Administrative Agent is under no duty or obligation to provide Statements, which, if provided, will be

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solely for the Borrowers’ convenience.  Statements may contain estimates of the amounts owed during the relevant billing period, whether of principal, interest, fees or other Secured Obligations.  If the Borrowers pay the full amount indicated on a Statement on or before the due date indicated on such Statement, the Borrowers shall not be in default of payment with respect to the billing period indicated on such Statement; provided, that acceptance by the Administrative Agent, on behalf of the Lenders, of any payment that is less than the total amount actually due at that time (including but not limited to any past due amounts) shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in full at another time.

SECTION 2.19.Mitigation Obligations; Replacement of Lenders.

(a)If any Lender requests compensation under Section 2.15, or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrowers hereby agree to pay all reasonable and documented out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b)If any Lender requests compensation under Section 2.15, or if any Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or if any Lender becomes a Defaulting Lender, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights (other than its existing rights to payments pursuant to Section 2.15 or 2.17) and obligations under this Agreement and other Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrowers shall have received the prior written consent of the Administrative Agent (and in circumstances where its consent would be required under Section 9.04, the Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment will result in a reduction in such compensation or payments.  A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.  Each party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower Representative, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to an be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as

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reasonably requested by the applicable Lender, provided that any such documents shall be without recourse to or warranty by the parties thereto.

SECTION 2.20.Defaulting Lenders

.  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

(a)fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.12(a);

(b)any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.18(b) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder; third, to cash collateralize the Issuing Bank’s LC Exposure with respect to such Defaulting Lender in accordance with this Section; fourth, as the Borrower Representative may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower Representative, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the Issuing Bank’s future LC Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with this Section; sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement or under any other Loan Document; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by any Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement or under any other Loan Document; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Disbursements owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments without giving effect to clause (d) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto;

(c)such Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly provided in Section 9.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or the Supermajority Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02) or under any other

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Loan Document; provided, that, except as otherwise provided in Section 9.02, this clause (c) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification expressly requiring the consent of such Lender or each Lender directly affected thereby;

(d)if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a Defaulting Lender then:

(i)all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender (other than the portion of such Swingline Exposure referred to in clause (b) of the definition of such term) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent that such reallocation does not, as to any non-Defaulting Lender, cause such non-Defaulting Lender’s Revolving Exposure to exceed its Commitment;

(ii)if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Company or the applicable Borrowers shall within one (1) Business Day following notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y) second, cash collateralize, for the benefit of the Issuing Bank, the Borrowers’ obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.06(j) for so long as such LC Exposure is outstanding;