EX-10.1 2 a16-6736_1ex10d1.htm EX-10.1

Exhibit 10.1

 

Execution Version

 

$1,500,000,000
Multicurrency Revolving Facility
$1,400,000,000
USD Term Loan A Facility
€1,100,000,000
EUR Term Loan A Facility



 

CREDIT AGREEMENT

 

among

 

BALL CORPORATION,
BALL UK ACQUISITION LIMITED
,
CERTAIN SUBSIDIARIES OF BALL CORPORATION,

 

DEUTSCHE BANK AG NEW YORK BRANCH
as Administrative Agent

 

and

 

VARIOUS LENDING INSTITUTIONS

 

Dated as of March 18, 2016


 

ARRANGED BY:

 

DEUTSCHE BANK SECURITIES INC.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
GOLDMAN SACHS BANK USA,
KEYBANC CAPITAL MARKETS INC.,
MIZUHO BANK, LTD.,
and
COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH
as Lead Arrangers and Bookrunners

 

and

 

DEUTSCHE BANK AG NEW YORK BRANCH
BANK OF AMERICA, N.A.
and
KEYBANK NATIONAL ASSOCIATION

 

as Initial Facing Agents



 

TABLE OF CONTENTS

 

 

 

Page

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

1

 

 

 

1.1

Definitions

1

1.2

Accounting Terms; Financial Statements

84

1.3

Calculation of Exchange Rate

85

1.4

Timing of Performance

85

1.5

Limited Condition Transactions

85

1.6

Luxembourg Terms

87

1.7

Netherlands Terms

87

1.8

Restricted Lenders

87

 

 

ARTICLE II AMOUNT AND TERMS OF DOLLAR, STERLING, EURO AND ALTERNATIVE CURRENCY CREDITS

88

 

 

 

2.1

The Commitments

88

2.2

Notes

92

2.3

Minimum Amount of Each Borrowing; Maximum Number of Borrowings

93

2.4

Borrowing Options

93

2.5

Notice of Borrowing

93

2.6

Conversion or Continuation

94

2.7

Disbursement of Funds

95

2.8

Utilization of Multicurrency Revolving Commitments in an Alternative Currency

96

2.9

Additional Facilities

99

2.10

Letters of Credit

103

2.11

Pro Rata Borrowings

114

2.12

Replacement Revolving Credit Facility

114

2.13

Replacement Term Loans

116

2.14

Extension of Maturity Date

118

2.15

Appointment and Removal of Other Subsidiary Borrowers

120

2.16

Special Provisions Relating to a Re-Denomination Event

121

 

 

ARTICLE III INTEREST AND FEES

123

 

 

 

3.1

Interest

123

3.2

Fees

124

3.3

Computation of Interest and Fees

126

3.4

Interest Periods

126

3.5

Compensation for Funding Losses

127

3.6

Increased Costs, Alternate Rate of Interest, Illegality, Etc.

128

3.7

Replacement of Affected Lenders

132

 

 

ARTICLE IV REDUCTION OF COMMITMENTS; PAYMENTS AND PREPAYMENTS

133

 

i



 

4.1

Voluntary Reduction of Commitments; Defaulting Lenders

133

4.2

Mandatory Reduction of Commitments

138

4.3

Voluntary Prepayments

138

4.4

Mandatory Prepayments

139

4.5

Application of Prepayments

143

4.6

Method and Place of Payment

144

4.7

Net Payments

145

 

 

ARTICLE V CONDITIONS PRECEDENT

153

 

 

 

5.1

Conditions Precedent to Initial Credit Event

153

5.2

Conditions Precedent to Initial Certain Funds Credit Event

157

5.3

Conditions Precedent to all Certain Funds Credit Events

158

5.4

Conditions Precedent to all Other Credit Events

158

5.5

Actions by Certain Funds Term Lenders During Certain Funds Period

159

 

 

ARTICLE VI REPRESENTATIONS AND WARRANTIES

160

 

 

 

6.1

Corporate Status

161

6.2

Corporate Power and Authority

161

6.3

No Violation

161

6.4

Governmental Approvals

161

6.5

Financial Statements; Solvency; Projections; Material Adverse Change

162

6.6

Litigation

163

6.7

True and Complete Disclosure

163

6.8

Use of Proceeds; Margin Regulations

163

6.9

Taxes

164

6.10

Labor Relations

165

6.11

Security Documents

165

6.12

Compliance With ERISA

166

6.13

Foreign Pension Matters

166

6.14

Ownership of Property

167

6.15

Capitalization of Company

167

6.16

Subsidiaries

167

6.17

Compliance With Law, Etc.

168

6.18

Investment Company Act

168

6.19

Environmental Matters

168

6.20

Intellectual Property, Licenses, Franchises and Formulas

168

6.21

OFAC; Patriot Act; FCPA

169

6.22

Press Release; Offer Document; Scheme Circular; etc.

169

6.23

Luxembourg Specific Representations

169

6.24

COMI

170

 

 

ARTICLE VII AFFIRMATIVE COVENANTS

170

 

 

 

7.1

Financial Statements

170

7.2

Certificates; Other Information

171

7.3

Notices

172

7.4

Conduct of Business and Maintenance of Existence

173

7.5

Payment of Taxes

173

 



 

7.6

Inspection of Property, Books and Records

174

7.7

ERISA

174

7.8

Foreign Pension Plan Compliance

176

7.9

Maintenance of Property, Insurance

176

7.10

Environmental Laws

176

7.11

Use of Proceeds

176

7.12

Additional Security; Further Assurances

177

7.13

End of Fiscal Years; Fiscal Quarters

180

7.14

Post-Closing Covenants

180

 

 

ARTICLE VIII NEGATIVE COVENANTS

180

 

 

 

8.1

Liens

180

8.2

Indebtedness

184

8.3

Fundamental Changes

190

8.4

Asset Sales

192

8.5

Dividends or Other Distributions

195

8.6

Issuance of Stock

197

8.7

Loans, Investment and Acquisitions

197

8.8

Transactions with Affiliates

200

8.9

Sale-Leasebacks

201

8.10

[Reserved.]

201

8.11

Lines of Business

201

8.12

Fiscal Year

201

8.13

Limitation on Voluntary Payments and Modifications of Subordinated Indebtedness; Modifications of Organizational Documents

201

8.14

Limitation on Certain Restrictions on Subsidiaries

202

8.15

Acquisition Undertakings

203

8.16

COMI Undertaking

204

 

 

ARTICLE IX FINANCIAL COVENANT

204

 

 

ARTICLE X EVENTS OF DEFAULT

204

 

 

 

10.1

Events of Default

204

10.2

Rights Not Exclusive

209

 

 

ARTICLE XI ADMINISTRATIVE AGENT

209

 

 

 

11.1

Appointment

209

11.2

Nature of Duties

210

11.3

Exculpation, Rights Etc.

210

11.4

Reliance

211

11.5

Indemnification

211

11.6

Administrative Agent In Its Individual Capacity

211

11.7

Notice of Default

212

11.8

Holders of Obligations

212

11.9

Resignation by the Administrative Agent

212

11.10

Administrative Agent or Collateral Agent as UK Security Trustee

212

11.11

The Lead Arrangers; Bookrunners; Senior Managing Agents

214

 



 

11.12

Parallel Debt Provisions

214

 

 

ARTICLE XII MISCELLANEOUS

215

 

 

 

12.1

No Waiver; Modifications in Writing

215

12.2

Further Assurances

220

12.3

Notices, Delivery Etc.

220

12.4

Costs, Expenses and Taxes; Indemnification

221

12.5

Confirmations

225

12.6

Adjustment; Setoff

225

12.7

Execution in Counterparts; Electronic Execution of Assignments

226

12.8

Binding Effect; Assignment; Addition and Substitution of Lenders

226

12.9

CONSENT TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL; SERVICE OF PROCESS

232

12.10

Release of Collateral

233

12.11

GOVERNING LAW

233

12.12

Severability of Provisions

233

12.13

Transfers of Notes

233

12.14

Registry

234

12.15

[Reserved.]

234

12.16

Headings

234

12.17

Termination of Agreement

234

12.18

Confidentiality

235

12.19

Concerning the Collateral, the Guaranty and the other Loan Documents

236

12.20

Effectiveness

239

12.21

USA Patriot Act

239

12.22

Restrictions on Guarantees and Pledges

239

12.23

Redesignation of Unrestricted Entities as Subsidiaries

239

12.24

No Fiduciary Responsibility

240

12.25

Waiver of Sovereign Immunity

240

12.26

EU Bail-In Clause

241

 



 

Exhibits

 

Exhibit 2.1(f)

Form of Swing Line Loan Participation Certificate

Exhibit 2.2(a)(1)

Form of USD Term A Note

Exhibit 2.2(a)(2)

Form of EUR Term A Note

Exhibit 2.2(a)(3)

Form of Multicurrency Revolving Note

Exhibit 2.2(a)(4)

Form of U.S. Swing Line Note

Exhibit 2.2(a)(5)

Form of European Swing Line Note

Exhibit 2.5

Form of Notice of Borrowing

Exhibit 2.6

Form of Notice of Conversion or Continuation

Exhibit 2.10(c)

Form of Notice of Issuance

Exhibit 2.15

Form of Joinder Agreement

Exhibit 4.7(f)-1

Form of U.S. Tax Compliance Certificate

Exhibit 4.7(f)-2

Form of U.S. Tax Compliance Certificate

Exhibit 4.7(f)-3

Form of U.S. Tax Compliance Certificate

Exhibit 4.7(f)-4

Form of U.S. Tax Compliance Certificate

Exhibit 5.1(a)(ii)

Form of Guaranty

Exhibit 5.1(a)(iii)

Form of U.S. Pledge Agreement

Exhibit 5.1(c)

Form of Officer’s Certificate

Exhibit 5.1(d)

Form of Secretary’s Certificate

Exhibit 5.1(g)

Form of Solvency Certificate

Exhibit 5.1(r)

Form of CP Memorandum to Cash Confirmation Provider

Exhibit 5.2(d)

Form of Officer’s Certificate Pursuant to Section 5.2(d)

Exhibit 7.2(a)

Form of Compliance Certificate Pursuant to Section 7.2(a)

Exhibit 12.8(c)

Form of Assignment and Assumption Agreement

 

Schedules

Schedule 1.1(a)

Commitments

Schedule 1.1(b)

Acquisition Undertakings

Schedule 1.1(c)

Revolver Sublimits

Schedule 1.1(d)

Subsidiary Borrowers

Schedule 1.1(e)

Unrestricted Entities

Schedule 1.1(f)

Applicable Designees

Schedule 1.1(g)

Applicable LC Sublimit

Schedule 1.1(h)

Existing Target Credit Facilities

Schedule 1.1(i)

UK Qualifying Lender Confirmation and UK DTTP Scheme

Schedule 1.1(j)

Target Domestic Subsidiaries

Schedule 1.1(k)

Senior Managing Agents

Schedule 2.10(j)

Outstanding Letters of Credit

Schedule 6.3

Approvals and Consents

Schedule 6.4

Governmental Approvals

Schedule 6.13

Foreign Pension Plans

Schedule 6.16

Organization of Subsidiaries

Schedule 8.1(u)

Foreign Pension Plan Liens

Schedule 8.2

Indebtedness

Schedule 8.7

Existing Investments

 



 

Schedule 8.8

Transactions with Affiliates

Schedule 8.14(a)

Existing Restrictions on Subsidiaries

Schedule 12.3

Notice Addresses

Schedule 12.8(b)

Voting Participants

 



 

CREDIT AGREEMENT

 

THIS CREDIT AGREEMENT is dated as of March 18, 2016 and is made by and among BALL CORPORATION, an Indiana corporation (“Company”), BALL UK ACQUISITION LIMITED, a private limited company registered in England and Wales with company number 09441371 and whose registered office is at c/o Skadden, Arps, Slate, Meagher & Flom (UK) LLP, 40 Bank Street, Canary Wharf, London E14 5DS, United Kingdom (“Purchaser”), each Other Subsidiary Borrower (as defined herein), the undersigned financial institutions, in their capacities as lenders hereunder (collectively, the “Lenders,” and each individually, a “Lender”), DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent (in such capacity “Administrative Agent”), DEUTSCHE BANK AG NEW YORK BRANCH, as collateral agent for the Lenders and DEUTSCHE BANK AG NEW YORK BRANCH, BANK OF AMERICA, N.A. and KEYBANK NATIONAL ASSOCIATION each as an initial revolving letter of credit facing agent (each, in such capacity, an “Initial Facing Agent” and collectively, in such capacities, the “Initial Facing Agents”).

 

In consideration of the premises and of the mutual covenants herein contained the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS AND ACCOUNTING TERMS

 

1.1                               Definitions. As used herein, and unless the context requires a different meaning, the following terms have the meanings indicated:

 

Acceptance Condition” has the meaning assigned to that term in Section 5.2(b).

 

Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (i) the purchase by a Person of all or substantially all of the assets of a Person, or of any business or business unit, line of business or division of a Person, (ii) the acquisition of in excess of 50% of the Capital Stock of any Person, or otherwise causing any Person to become a Subsidiary, or (iii) the merger, consolidation or amalgamation of any Person with any other Person (other than a Person that is a Subsidiary).

 

Acquisition Undertakings” means the undertakings set forth on Schedule 1.1(b).

 

Additional Facilities” has the meaning assigned to that term in Section 2.9(a).

 

Additional Facility Commitment” means, with respect to any Lender and any Additional Facility, the obligation of such Lender to make loans under such Additional Facility, as such commitment may be adjusted from time to time pursuant to this Agreement.

 

Additional Facility Limit” means an amount equal to the sum of (x)(i) $300,000,000 (or the Dollar Equivalent thereof at the time of funding) less (ii) the

 



 

aggregate principal amount of all Additional Facilities incurred or issued in reliance on clause (x)(i) of this definition plus (y) (A) the amount of any optional prepayment of any Loan including any Loan under any Additional Facility (other than, in each case, incurred pursuant to clause (z) below) in accordance with Section 4.3 (accompanied, to the extent such prepayments are of Loans under any Multicurrency Revolving Facility and/or any Additional Revolving Facility, by a commitment reduction in the like amount under such Multicurrency Revolving Facility and/or Additional Revolving Facility) and/or the amount of any permanent reduction of any Multicurrency Revolving Commitment or Additional Facility Commitment so long as, in the case of any optional prepayment, such prepayment was not funded with the proceeds of a contemporaneous refinancing with new long-term Indebtedness less (B) the aggregate principal amount of all Additional Facilities incurred or issued in reliance on clause (y)(A) of this definition plus (z) an amount such that, at the time of the incurrence of the applicable Additional Facility (after giving effect to the full utilization of the applicable Additional Facility), the First Lien Net Leverage Ratio of Company and its Subsidiaries does not exceed 2.0 to 1.0 (it being acknowledged that each Additional Facility under Section 2.9 shall be incurred under clause (z) if clause (z) is available at the time of such incurrence up to the maximum amount available, and any additional amounts incurred at any time that clause (z) is unavailable shall be incurred under clauses (x) and/or (y), and any simultaneous incurrence under clauses (x) and/or (y) shall not be given pro forma effect for purposes of determining the First Lien Net Leverage Ratio with respect to any incurrence under clause (z)), calculated on a Pro Forma Basis, after giving effect to the application of the proceeds thereof (but without “netting” the Cash proceeds of the applicable Additional Facility; provided that to the extent the Cash proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness) and, in the case of any Additional Revolving Facility, assuming a full drawing under such Additional Revolving Facility, and determined on the basis of the financial statements for the most recently completed four Fiscal Quarter period of Company that are internally available.

 

Additional Revolving Facility” has the meaning assigned to that term in Section 2.9(a).

 

Additional Security Documents” means the pledge agreements entered into pursuant to Section 7.12 with respect to additional Collateral.

 

Additional Term Loans” has the meaning assigned to that term in Section 2.9(a).

 

Administrative Agent” has the meaning assigned to that term in the introduction to this Agreement and any successor Administrative Agent in such capacity.

 

Aerospace Asset Disposition” means (i) an Asset Disposition by Company or any of its Subsidiaries of all or a portion of (a) the Aerospace Business (whether or not such disposition is to any Permitted Aerospace JV), (b) the Capital Stock of a Person holding only the Aerospace Business or (c) the Capital Stock of any Permitted Aerospace JV or (ii) the receipt by Company or any of its Subsidiaries of a liquidating dividend in respect of an interest in the Capital Stock of any Permitted Aerospace JV.

 

2



 

Aerospace Business” means the assets constituting the aerospace business of Company, including the business of Ball Aerospace and its Subsidiaries on the Closing Date, and businesses directly or indirectly owned or operated by Company or any of its Subsidiaries and reasonably related or incidental to such aerospace business, but excluding all Cash and Cash Equivalents held by said aerospace business and related or incidental businesses other than Cash and Cash Equivalents held in the ordinary course of business and in an amount consistent with past practices.

 

Affiliate” means, with respect to any Person, any Person or group acting in concert in respect of the Person in question that, directly or indirectly, controls or is controlled by or is under common control with such Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person or group of Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. None of the Administrative Agent, the Lead Arrangers, any Lender or any of their respective Affiliates shall be considered an Affiliate of Company or any of its Subsidiaries.

 

Agent” has the meaning assigned to that term in Section 11.1.

 

Aggregate Pro Rata Share” has the meaning assigned to that term in Section 11.5.

 

Agreed Alternative Currency” has the meaning assigned to that term in Section 2.8(b).

 

Agreed Guaranty and Security Principles” means, with respect to any Subsidiary incorporated or formed under the laws of any jurisdiction, that a guaranty of any of the Obligations (including pursuant to the Guaranty) or a pledge or grant of a security interest in an asset (including Capital Stock) otherwise required to be pledged under this Agreement or any other Loan Document, in each case shall not be required to be given by such Subsidiary to the extent that such guaranty, pledge or grant:

 

(a)                       is prohibited by or in breach of or could reasonably be expected to be in breach of (i) any Requirement of Law (including, but not limited to, any exchange control, financial assistance, corporate benefit, corporate interest, minimum capitalization, fraudulent conveyance, “interest stripping”, transfer pricing, thin capitalization, retention of title or similar laws, rules or regulations) or (ii) any contractual obligation in effect as of the Closing Date (or, if later, the date such Subsidiary is formed or acquired so long as not incurred in contemplation thereof (or contractual obligations not more restrictive in any material respect, solely in the case of limitations and restrictions impacting guarantees, pledges, security interests and assets, than those in existence at such earlier time);

 

(b)                                 would require consent, approval, license or authorization from any Governmental Authority (including supervisory board, works council, regulator or regulatory

 

3



 

board (or equivalent), or other external body) to provide a guarantee, pledge or grant (unless such consent, approval, license or authorization has been received);

 

(c)                                  could reasonably be expected to result in a risk of (i) breach of the fiduciary duties of, or personal civil or criminal liability on the part of, any of any Foreign Subsidiary’s officers, directors, employees or similar persons or (ii) criminal liability on the part of any Foreign Subsidiary;

 

(d)                                 could reasonably be expected to result in adverse tax consequences (including adverse effects in relation to interest deductibility, stamp duty and the possibility to form a fiscal unity) to Company or any of its Subsidiaries as determined in good faith by Company in consultation with the Administrative Agent; or

 

(e)                                  could reasonably be expected to result in costs (including stamp duty, VAT, notarization and registration fees) or other consequences that would be excessive in relation to the benefits afforded thereby, as determined in good faith by Company in consultation with the Administrative Agent.

 

Agreement” means this Credit Agreement.

 

Alternative Currency” means at any time, Euro, Sterling and any Agreed Alternative Currency.

 

Alternative Currency Alternate Rate” means, with respect to any Alternative Currency in any jurisdiction, the rate of interest per annum notified to the Administrative Agent by that Lender as soon as practicable after notice is given under Section 3.6(c), and in any event before interest is due to be paid in respect of the applicable Interest Period, based on the cost to that Lender of funding its participation in that Eurocurrency Loan. Notwithstanding anything to the contrary contained herein, Eurocurrency Loans may be made or maintained as Daily Rate Loans only to the extent specified in Section 3.6(c).

 

Alternative Currency Loan” means any Loan denominated in a currency other than Dollars.

 

Amounts Owing” has the meaning assigned to that term in Section 2.15(b).

 

Anti-Corruption Laws” has the meaning assigned to that term in Section 6.21(d).

 

Applicable Base Rate Margin” means (i) from the Closing Date to the date upon which the Administrative Agent receives the audited financial statements required pursuant to Section 7.1 for the fiscal year ending December 31, 2016, 0.75%, and (ii) at any date thereafter, the applicable percentage rate per annum set forth in the following table under the column “Applicable Base Rate Margin” opposite the Most Recent Total Net Leverage Ratio as of such date:

 

4



 

Most Recent Total Net
Leverage Ratio

 

Applicable Base Rate Margin

 

Greater than 3.5 to 1

 

0.75

%

Greater than or equal to 2.5 to 1 but less than or equal to 3.5 to 1

 

0.50

%

Less than 2.5 to 1

 

0.25

%

 

Any adjustment in the Applicable Base Rate Margin shall be applicable to all Base Rate Loans then existing or subsequently made or issued.

 

Applicable Currency” means as to any particular payment or Loan, Dollars or the Alternative Currency in which it is denominated or is payable.

 

Applicable Designee” means any Affiliate of a Lender designated thereby from time to time with the consent of the Administrative Agent (which such consent shall not be unreasonably withheld or delayed) to fund all or any portion of such Lender’s Multicurrency Revolving Commitment Percentage of Multicurrency Revolving Loans (and Swing Line Loans and LC Obligations) under this Agreement. As of the Closing Date, the Applicable Designees of each Multicurrency Revolving Lender are set forth on Schedule 1.1(f) (which schedule may be updated from time to time upon written notice by any such Lender to the Administrative Agent).

 

Applicable Eurocurrency Margin” means (i) from the Closing Date to the date upon which the Administrative Agent receives the audited financial statements required pursuant to Section 7.1 for the fiscal year ending December 31, 2016, 1.75%, and (ii) at any date thereafter, the applicable percentage rate per annum set forth in the following table under the column Applicable Eurocurrency Margin opposite the Most Recent Total Net Leverage Ratio on such date:

 

Most Recent Total Net
Leverage Ratio

 

Applicable Eurocurrency Margin

 

Greater than 3.5 to 1

 

1.75

%

Greater than or equal to 2.5 to 1 but less than or equal to 3.5 to 1

 

1.50

%

Less than 2.5 to 1

 

1.25

%

 

Any adjustment in the Applicable Eurocurrency Margin shall be applicable to all Eurocurrency Loans then existing or subsequently made or issued.

 

Applicable LC Sublimit” means, (i) with respect to each of the Facing Agents on the Closing Date, the amount set forth opposite such Facing Agent’s name on Schedule 1.1(g) and (ii) with respect to any other Person that becomes a Facing Agent pursuant to the terms of the applicable agreement pursuant to which such entity agrees to become a Facing Agent hereunder, such amount as agreed to in writing by Company and such Person at the time such Person becomes a Facing Agent pursuant to the terms of the applicable agreement pursuant to

 

5



 

which such entity agrees to become a Facing Agent hereunder, as each of the foregoing amounts may be decreased or increased from time to time with the written consent of Company and the Facing Agents (provided that any increase in the Applicable LC Sublimit with respect to any Facing Agent shall only require the consent of Company and such Facing Agent).

 

Applicable Multicurrency Revolving Commitment Fee Percentage” means (i) from the Closing Date to the date upon which the Administrative Agent receives the audited financial statements required pursuant to Section 7.1 for the fiscal year ending December 31, 2016, 0.30%, and (ii) at any date thereafter, the applicable percentage rate per annum set forth in the following table opposite the Most Recent Total Net Leverage Ratio as of such date:

 

Most Recent Total Net
Leverage Ratio

 

Applicable Multicurrency
Revolving Commitment Fee
Percentage

 

Greater than 3.5 to 1

 

0.30

%

Greater than or equal to 2.5 to 1 but less than or equal to 3.5 to 1

 

0.25

%

Less than 2.5 to 1

 

0.20

%

 

Applicable Term Loan Commitment Fee Percentage” means, for each Term Facility, from the Closing Date to and including the last day of the Certain Funds Period or, if earlier, the termination of the USD Term A Commitments or the EUR Term A Commitments, as applicable, 0.30%.

 

Approved Member State” means Belgium, France, Germany, Ireland, Italy, Luxembourg, The Netherlands, Spain, Sweden and the United Kingdom.

 

Asset Disposition” means any sale, lease, transfer, conveyance or other disposition (or series of related sales, leases, transfers or dispositions) of all or any part of (i) an interest in shares of Capital Stock of a Subsidiary of Company (other than directors’ qualifying shares) or (ii) property or other assets (each of (i) and (ii) referred to for the purposes of this definition as a “disposition”) by Company or any of its Subsidiaries.

 

Assignee” has the meaning assigned to that term in Section 12.8(c).

 

Assignment and Assumption Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit 12.8(c) annexed hereto and made a part hereof made by any applicable Lender, as assignor, and such Lender’s assignee in accordance with Section 12.8.

 

Attributable Debt” means as of the date of determination thereof, without duplication, (i) in connection with a Sale and Leaseback Transaction, the net present value (discounted according to GAAP at the cost of debt implied in the lease) of the obligations of the

 

6



 

lessee for rental payments during the then remaining term of any applicable lease, (ii) Receivables Facility Attributable Debt, and (iii) the liquidation or preference value of outstanding Disqualified Capital Stock.

 

Available Liquidity” means, at any date, the sum of (i) the Total Available Multicurrency Revolving Commitment on such date plus (ii) Cash and Cash Equivalents as of such date plus (iii) available amounts under any Permitted Accounts Receivable Securitization, or any Receivables Factoring Facility or similar receivable financing facility that is, in each case, made available on a committed basis on such date.

 

Available Multicurrency Revolving Commitment” means, as to any Multicurrency Revolving Lender at any time an amount equal to the excess, if any, of (a) such Lender’s Multicurrency Revolving Commitment over (b) the sum of (i) the aggregate Effective Amount of then outstanding Multicurrency Revolving Loans made by such Lender and (ii) such Lender’s Multicurrency Revolver Pro Rata Share of the Effective Amount of LC Obligations and Swing Line Loans then outstanding.

 

Available Revolver Sublimit” means, as to any Other Subsidiary Borrower at any time an amount equal to (i) such Borrower’s Revolver Sublimit at such time minus (ii) the sum of (a) the aggregate Effective Amount of then outstanding Multicurrency Revolving Loans made to such Borrower plus (b) the Effective Amount of such Borrower’s LC Obligations plus (c) the aggregate Effective Amount of then outstanding Swing Line Loans made to such Borrower.

 

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.

 

Balance Sheet” means the consolidated balance sheet of Company and its Subsidiaries for the four-Fiscal Quarter period ending on the last day of the most recent Fiscal Quarter completed prior to the first anniversary of the Initial Certain Funds Funding Date, together with all related notes and schedules thereto.

 

Ball Aerospace” means Ball Aerospace & Technologies Corp., a Delaware corporation.

 

Ball Asia Pacific” means Ball Asia Pacific, Limited, a company organized under the laws of Hong Kong.

 

7



 

Ball Delaware” means Ball Delaware Holdings, S.C.S., a limited partnership (société en commandite simple) incorporated under the laws of Luxembourg, having its registered office at 5, Rue Guillaume Kroll, L-1882 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies’ Register (R.C.S. Luxembourg) under number B 90.414.

 

Ball Europe” means Ball Packaging Europe Holding B.V., a Netherlands private limited liability company (besloten vennootschap met beperkte aansprakelijkheid), registered with the Netherlands Chamber of Commerce under number 24342293.

 

Ball Finance” means Ball (Luxembourg) Finance S.à r.l., a private limited liability company (société à responsabilité limitée), organized and existing under the laws of the Grand Duchy of Luxembourg, with registered office at 20 rue Eugène Ruppert, L-2453 Luxembourg, with a share capital of EUR 12,500 and registered with the Luxembourg Register of Commerce and Companies (R.C.S Luxembourg) under number B 90416.

 

Ball International Luxembourg” means Ball International Holdings S.à r.l., a private limited liability company (société à responsabilité limitée) organized and existing under the laws of the Grand Duchy of Luxembourg, with registered office at 20 rue Eugène Ruppert, L-2453 Luxembourg, with a share capital of EUR 11,012,500 and registered with the Luxembourg Register of Commerce and Companies (R.C.S Luxembourg) under number B 202979.

 

Ball International Partners” means Ball International Partners SCS, a limited partnership (société en commandite simple) organized and existing under the laws of the Grand Duchy of Luxembourg, with registered office at 5 rue Guillaume Kroll, L-1882 Luxembourg and registered with the Luxembourg Register of Commerce and Companies (R.C.S Luxembourg) under number B 202884, acting by its general partner Ball International, LLC.

 

Ball Metal Beverage” means Ball Metal Beverage Container Corp., a Colorado corporation.

 

Banco Bradesco Loan Agreement” means the Loan Agreement, dated as of February 28, 2013, by and among Latapack and Banco Bradesco S.A., New York Branch.

 

Banco do Brasil Fixed Credit Facility Agreement” means the Fixed Credit Facility Agreement, dated as of  May 14, 2014, by and among Latapack and Banco do Brasil S.A.

 

Banco do Brasil Tokyo Loan Agreement” means the Foreign Direct Loan Agreement in Foreign Currency and Other Covenants, dated as of March 22, 2013, by and among Latapack and Banco do Brasil S.A., Tokyo Branch and Banco do Brasil S.A.

 

Bank Guarantee” means a direct guarantee issued for the account of Company, and, if requested, a Subsidiary of Company, pursuant to this Agreement by a Facing Agent, in form acceptable to the Facing Agent, ensuring that a liability acceptable to the Facing Agent acting reasonably of Company or a Subsidiary of Company to a third Person will be met.

 

8



 

Bankruptcy Code” means Title I of the Bankruptcy Reform Act of 1978, as amended, as set forth in Title 11 of the United States Code.

 

Base Rate” means the greatest of (i) the rate most recently announced by the Administrative Agent at its principal office as its “prime rate”, which is not necessarily the lowest rate made available by the Administrative Agent, (ii) the Federal Funds Rate plus 1/2 of 1% per annum, and (iii) the Eurocurrency Rate plus 1.00%. The “prime rate” announced by the Administrative Agent is evidenced by the recording thereof after its announcement in such internal publication or publications as the Administrative Agent may designate. Any change in the interest rate resulting from a change in such “prime rate” announced by the Administrative Agent shall become effective without prior notice to Borrowers as of 12:01 a.m. (New York City time) on the Business Day on which each change in such “prime rate” is announced by the Administrative Agent. The Administrative Agent may make commercial or other loans to others at rates of interest at, above or below its “prime rate”.

 

Base Rate Loan” means any Loan which bears interest at a rate determined with reference to the Base Rate.

 

Benefited Lender” has the meaning assigned to that term in Section 12.6(a).

 

Board” means the Board of Governors of the Federal Reserve System.

 

Bookrunners” means Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA, KeyBanc Capital Markets Inc., Mizuho Bank, Ltd. and Coöperatieve Rabobank U.A., New York Branch.

 

Borrowers” means Company, Purchaser, and the Other Subsidiary Borrowers from time to time party hereto.

 

Borrowing” means a group of Loans of a single Type made by the Lenders or the European Swing Line Lender or U.S. Swing Line Lender, as appropriate on a single date (or resulting from a conversion on such date) and in the case of Eurocurrency Loans, as to which a single Interest Period is in effect.

 

Brazilian Debt Refinancing” means (i) repayment in full of all Existing Brazilian Debt, (ii) the termination and release of all commitments, security interests and guarantees in connection with the foregoing, and (iii) the payment of all fees, expenses and other amounts incurred or owing in connection with the foregoing.

 

Bridge Commitments” means the “Commitments” under and as defined in the Bridge Loan Agreement.

 

Bridge Loan Agreement” means the Bridge Loan Agreement, dated as of February 19, 2015, among Company, the lenders from time to time party thereto and Deutsche Bank AG Cayman Islands Branch.

 

9



 

Business Day” means (i) as it relates to any payment, determination, funding or notice to be made or given in connection with any Dollar-denominated Loan, or otherwise to be made or given to or from the Administrative Agent, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close, or are in fact closed; provided, however, that when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market; provided, further, that when used in connection with any Letter of Credit, the term “Business Day” shall also exclude any day on which commercial banks in the city in which the respective Facing Agent for such Letter of Credit is domiciled are required by law to close; (ii) as it relates to any payment, determination, funding or notice to be made or given in connection with any Alternative Currency Loan, any day (A) on which dealings in deposits in the Alternative Currency are carried out in the London interbank market, (B) on which commercial banks and foreign exchange markets are open for business in London, New York City, and the principal financial center for such Alternative Currency, and (C) with respect to any such payment, determination or funding to be made in connection with any Alternative Currency Loan denominated in Euros, on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) System payment system launched on November 19, 2007 or any successor settlement system is open, (iii) if such day relates to any Luxembourg law governed document or the performance of any obligations under the Loan Documents by any Luxembourg Credit Party, any day other than a Saturday, Sunday or other day on which commercial banks in Luxembourg are authorized or required by law to close, or are in fact closed, (iv) if such day relates to any English law governed document or the performance of any obligations under the Loan Documents by any UK Credit Party organized in the United Kingdom, any day other than a Saturday, Sunday or other day on which commercial banks in London are authorized or required by law to close, or are in fact closed and (v) if such day relates to any Netherlands Law governed document or the performance of any obligations under the Loan Documents by any Netherlands Credit Party, any day other than a Saturday, Sunday or other day on which commercial banks in the Netherlands are authorized or required by law to close, or are in fact closed.

 

CAM Exchange” means the mechanism among the Lenders and the Administrative Agent for the allocation and exchange of interests in the Facilities and collections thereunder established under the Re-Allocation Agreement.

 

Capital Stock” means, with respect to any Person, any and all common shares, preferred shares, interests, participations, rights in or other equivalents (however designated) of such Person’s capital stock, partnership interests, limited liability company interests, membership interests or other equivalent ownership interests and any rights, warrants or options exchangeable for or convertible into such capital stock or other ownership interests (other than debt securities convertible into or exchangeable for capital stock or other ownership interests or rights, warrants or options).

 

Capitalized Lease” means, at the time any determination thereof is to be made, any lease of property, real or personal, in respect of which the present value of the minimum rental commitment would be required to be capitalized on the balance sheet of the lessee in accordance with GAAP in effect as of the date hereof.

 

10



 

Capitalized Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a Capitalized Lease which would at such time be so required to be capitalized on the balance sheet of the lessee in accordance with GAAP in effect as of the date hereof.

 

Cash” means money, currency or the available credit balance in Dollars, an Alternative Currency or another currency reasonably acceptable to the Administrative Agent in a Deposit Account.

 

Cash Collateralize” and “Cash Collateralizing” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, a Facing Agent or a Swing Line Lender (as applicable) and the Lenders, as collateral for LC Obligations, obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the Facing Agent or the Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (i) the Administrative Agent and (ii) the applicable Facing Agent or the Swing Line Lender. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

Cash Confirmation Provider” means Greenhill & Co. International LLP, in its capacity as financial advisor to Company, for the purposes of the City Code and the Target Acquisition.

 

Cash Equivalents” means (i) any evidence of indebtedness, maturing not more than one year after the date of issue, issued by any Approved Member State, the United States of America, Canada, or any instrumentality or agency thereof, the principal, interest and premium, if any, of which is guaranteed fully by, or backed by the full faith and credit of, the Approved Member State, the United States of America, or Canada, (ii) time deposits, certificates of deposit and bankers acceptances maturing not more than one year after the date of purchase, issued or guaranteed by or placed with, and money market accounts issued or offered by, (x) any Lender or (y) a commercial banking institution having, or which is the principal banking subsidiary of a bank holding company having, at the time of such deposit, certificate of deposits or banker’s acceptance, or the opening of such money market account, combined capital and surplus and undivided profits of not less than $200,000,000 (or the Dollar Equivalent of $100,000,000 in the case of non-U.S. banking institutions) or whose commercial paper (or the commercial paper of such bank’s holding company) has a rating of “P-2” (or higher) according to Moody’s, “A-2” (or higher) according to S&P or the equivalent rating by any other nationally recognized rating agency (any such bank, an “Approved Bank”), (iii) commercial paper, maturing not more than one year after the date of purchase with a rating, at the time of the acquisition thereof, of “P-2” (or higher) according to Moody’s, or “A-2” (or higher) according to S&P, (iv) demand deposits with any bank or trust company maintained in the ordinary course of business, (v) repurchase or reverse repurchase agreements covering obligations of the type specified in clause (i) with a term of not more than 30 days with any Approved Bank, (vi) shares of any money market mutual fund rated at least AA- or the equivalent thereof by S&P or at least Aa3 or the equivalent thereof by Moody’s at the time of the acquisition thereof, including, without limitation, any such mutual

 

11



 

fund managed or advised by any Lender or the Administrative Agent, and (vii) Dollars, Alternative Currencies, Brazilian real, any national currency of any Approved Member State, and any local currencies in which Company or any of its Subsidiaries transact business from time to time in the ordinary course of its business. In the case of Investments by any Foreign Subsidiary or Investments made in a country outside of the United States of America, Cash Equivalents shall include (a) investments of the type and maturity described in clauses (i) through (vii) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (b) other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (i) through (vii) and in this sentence.

 

Certain Funds Change of Control” means Company shall cease to own, directly or indirectly, 100% of the issued and outstanding shares of Purchaser’s Voting Securities.

 

Certain Funds Default” means, in each case, other than to the extent that such Event of Default relates to, or is made in relation to, circumstances affecting any member of the Target Group, an Event of Default under paragraph (a) (solely to the extent that it relates to a Certain Funds Term Loan), (b) (solely to the extent that it relates to a Certain Funds Representation), (c) (solely to the extent that it relates to a Certain Funds Undertaking), (e), (f), (j) (to the extent relating to Subsidiary Guarantors representing more than 25% of Consolidated EBITDA) or (m) (solely to the extent it relates to Company) of Section 10.1.

 

Certain Funds Period” means the period commencing on the Closing Date and ending on the first to occur of:

 

(i) midnight (London time) on the date occurring 18 months after the date the Press Release was issued.

 

(ii)   if the Target Acquisition is effected by way of a Scheme, midnight (London time) on the first Business Day falling 20 days or more after the Scheme Effective Date;

 

(iii)  midnight (London time) on the date upon which a Scheme lapses, terminates or is withdrawn (unless a firm intention to make an Offer in place of a Scheme is simultaneously, or has already been, announced or within 5 Business Days of such lapse, termination or withdrawal, as the case may be, is announced);

 

(iv)  midnight (London time) on the date upon which an Offer lapses, terminates or is withdrawn (unless a firm intention to make a Scheme in place of an Offer is simultaneously, or has already been, announced or within 5 Business Days of such lapse, termination or withdrawal, as the case may be, is announced); and

 

(v)   midnight (London time) on the date on which the Target becomes a direct or indirect Wholly-Owned Subsidiary of Company and Purchaser has paid all sums due pursuant to, or in connection with, the Target Acquisition, any

12



 

surrender or cancellation of options or awards over Target Shares and (in the case of an Offer) any squeeze-out procedure and/or sell-out procedure in accordance with the Compulsory Acquisition Procedures.

 

Certain Funds Representations” means the representations and warranties contained in Sections 6.1(i) (solely as to due organization and valid existence only) and (ii) (solely as it relates to Company and where failure to do so could reasonably be expected to have a Material Adverse Effect), 6.2, 6.3(i), (ii) (to the extent relating to material debt instruments of Company) and (iii), 6.4, 6.8(b), 6.18, 6.21 and 6.22 in each case, solely as they relate to the Credit Parties (or, as set forth above, only Company).

 

Certain Funds Term Commitment” means the USD Term A Commitment and the EUR Term A Commitment.

 

Certain Funds Term Lender” means, with respect to any Term Facility, any Lender that has a Certain Funds Term Commitment for such Term Facility or that has made a Certain Funds Term Loan under such Term Facility.

 

Certain Funds Term Loans” means the USD Term A Loans and the EUR Term A Loans.

 

Certain Funds Undertaking” means (i) each of the Acquisition Undertakings (other than those set forth in paragraphs (g), (h) and (i) of Schedule 1.1(b)), (ii) the covenant set forth in Section 7.4 (solely as it relates to Company’s and Purchaser’s corporate existence) and (iii) solely after the initial Borrowing of Certain Funds Term Loans in each case on the Initial Certain Funds Funding Date and solely as they relate to the Credit Parties and Purchaser, Sections 8.1 through 8.4, 8.7, 8.9 and 8.13(c) (with respect to Organizational Documents only).

 

Certificated Pledged Stock” has the meaning assigned to that term in Section 6.11.

 

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority, (d) any change arising from the enactment or enforcement of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended, or any rules, regulations, interpretations, guidelines or directives promulgated thereunder (“Dodd-Frank”) or (e) all requests, rules, guidelines 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 (“Basel”); provided that notwithstanding anything herein to the contrary, in regards to Dodd-Frank and Basel, all requests, rules, regulations, guidelines, interpretations, requirements and directives thereunder or issued in connection therewith or in implementation thereof whether or not having the force of

 

13



 

law shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.

 

Change of Control” means (i) any person or group of persons (within the meaning of the Exchange Act) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of more than 40% of the issued and outstanding shares of Company’s Voting Securities, or (ii) any “Change of Control” (as such term is defined in any Permitted Debt Document related solely to any Senior Notes or any Permitted Refinancing Indebtedness with respect thereto).

 

City Code” means the United Kingdom City Code on Takeovers and Mergers and any practice statements issued by the Panel on Takeovers and Mergers in connection with the City Code.

 

Clean-up Date” has the meaning assigned to that term in Section 10.1.

 

Closing Date” has the meaning assigned to that term in Section 5.1.

 

Code” means the Internal Revenue Code of 1986, as from time to time amended, including the regulations promulgated thereunder, or any successor statute and the regulations promulgated thereunder.

 

COLI Policy Advances” of Company or any of its Subsidiaries means, with respect to any Company Owned Life Insurance Program, policy loans made to Company or any of its Subsidiaries under life insurance policies in an amount not in excess of the available cash surrender values of such policies, which loans are made pursuant to the contractual terms of life insurance policies issued in connection with a Company Owned Life Insurance Program.

 

Collateral” means all “Collateral” as defined in each of the Security Documents (if applicable), and all other assets pledged pursuant to the Security Documents.

 

Collateral Account” has the meaning assigned to that term in Section 4.4(a).

 

Collateral Agent” means Deutsche Bank AG New York Branch acting as collateral agent or as the UK Security Trustee under the laws of England and Wales, in each case for the benefit of the Secured Creditors pursuant to its appointment as the Collateral Agent in Section 11.1 and/or pursuant to any UK Security Document or any other agent or subagent or trustee acting for the benefit of the Secured Creditors with the consent of the Administrative Agent.

 

Commitment” means, with respect to each Lender, the aggregate of the Multicurrency Revolving Commitment, Term Commitment, and each Additional Facility Commitment, Replacement Revolving Commitment, Replacement Term Commitment, Extended Revolving Commitment, Extended Term Commitment, and Extended Additional Facility Commitment of such Lender and “Commitments” means such commitments of all of the Lenders collectively.

 

14



 

Common Stock” means the common stock of Company, no par value.

 

Companies Act” means the Companies Act 2006 of the United Kingdom.

 

Company” has the meaning assigned to that term in the introduction to this Agreement.

 

Company 2013 Credit Facility Refinancing” means (i) repayment in full of all Indebtedness of Company and its Subsidiaries under the Existing 2013 Credit Agreement, together with the payment of all fees and other amounts owing thereon, and (ii) all commitments, security interests and guaranties in connection therewith shall have been terminated and released.

 

Company 2015 Credit Facility Refinancing” means (i) repayment in full of all Indebtedness of Company and its Subsidiaries under the Existing 2015 Credit Agreement, together with the payment of all fees and other amounts owing thereon and (ii) all commitments, security interests and guaranties in connection the foregoing shall have been terminated and released, all to the reasonable satisfaction of the Administrative Agent

 

Company 2016 Bridge Facility Reduction” means a permanent reduction of all Bridge Commitments under the Bridge Loan Agreement in accordance with Section 4.1(a)(iii) of the Bridge Loan Agreement.

 

Company Owned Life Insurance Program” means a life insurance program in which Company is a participant, pursuant to which Company is the owner of whole life policies insuring the lives of certain of its employees.

 

Compliance Certificate” has the meaning assigned to that term in Section 7.2(a).

 

Compulsory Acquisition Procedures” means the compulsory squeeze-out procedures for the acquisition of minority shareholdings in the Target pursuant to the squeeze-out procedure set out in Sections 974 to 991 of the Companies Act.

 

Computation Date” has the meaning assigned to that term in Section 2.8(a).

 

Confidentiality Agreement” has the meaning assigned to that term in Section 12.18.

 

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.

 

Consenting Lender” has the meaning assigned to that term in Section 2.14(b).

 

Consolidated Assets” means, for any Person, the total assets of such Person and its Subsidiaries, as determined from a consolidated balance sheet of such Person and its consolidated Subsidiaries prepared in accordance with GAAP.

 

15



 

Consolidated EBITDA” means, for any period, on a consolidated basis for Company and its Subsidiaries, the sum of the amounts for such period, without duplication, of:

 

 

 

(i)

 

Consolidated Net Income,

 

 

 

 

 

plus

 

(ii)

 

Consolidated Interest Expense, to the extent deducted in computing Consolidated Net Income,

 

 

 

 

 

plus

 

(iii)

 

charges against income for foreign, federal, state and local taxes in each case based on income or profits, to the extent deducted in computing Consolidated Net Income,

 

 

 

 

 

plus

 

(iv)

 

depreciation expense, to the extent deducted in computing Consolidated Net Income,

 

 

 

 

 

plus

 

(v)

 

amortization expense, including, without limitation, amortization of goodwill and other intangible assets, fees, costs and expenses in connection with the execution, delivery and performance of any of the Loan Documents, and other fees, costs and expenses in connection with Permitted Acquisitions, in each case, to the extent deducted in computing Consolidated Net Income,

 

 

 

 

 

minus

 

(vi)

 

the gain (or plus the loss) (net of any tax effect) resulting from the sale of any capital assets other than in the ordinary course of business to the extent added (deducted) in computing Consolidated Net Income,

 

 

 

 

 

minus

 

(vii)

 

extraordinary or non-cash nonrecurring after-tax gains (or plus extraordinary or non-cash nonrecurring after-tax losses) to the extent added (deducted) in computing Consolidated Net Income,

 

 

 

 

 

minus

 

(viii)

 

any non-cash gain resulting from any write-up of assets (other than with respect to any Company Owned Life Insurance Program) to the extent added in computing Consolidated Net Income,

 

16



 

plus

 

(ix)

 

any non-cash charge resulting from any write-down of assets to the extent deducted in computing Consolidated Net Income,

 

 

 

 

 

plus

 

(x)

 

any non-cash restructuring charge to the extent deducted in computing Consolidated Net Income,

 

 

 

 

 

plus

 

(xi)

 

all other non-cash charges (except to the extent such non-cash charges are reserved for cash charges to be taken in the future),

 

 

 

 

 

plus

 

(xii)

 

(A) fees, costs and expenses in connection with the Transaction, the Target Acquisition (including, without limitation, separations, consolidations, divestitures and reorganizations in preparation therefor or in connection therewith), the Target Notes Refinancing, the Designated Existing Notes Refinancing, the issuance of the Senior Notes (2025) and the Senior Notes (Target Acquisition), the Replacement Target Note Financing, the Company 2013 Credit Facility Refinancing, the Brazilian Debt Refinancing, and each Permitted Reorganization, (B) transaction fees, costs and expenses (including up-front fees, commissions, premiums or charges) incurred in connection with, to the extent permitted under the Loan Documents and whether or not consummated, equity issuances, Investments, Acquisitions, Asset Dispositions, recapitalizations, refinancings, mergers, option buy-outs, or the incurrence or repayment of Indebtedness or any amendments, waivers or other modifications under the agreements relating to such Indebtedness or similar transactions, (C) fees, costs and expenses in connection with strategic initiatives, transition costs and other business optimization and information systems related fees costs and expenses (including non-recurring employee bonuses in connection therewith and including in connection with each Permitted Reorganization and the separation and eventual disposal of businesses or lines of business) and (D) fees, costs and expenses with respect to Receivables Factoring Facilities, to the extent not included in Consolidated Interest Expense,

 

 

 

 

 

plus

 

(xiii)

 

the amount of “run-rate” cost savings, product margin synergies (including increased share of shelf), operating expense reductions and product cost (including sourcing), and other operating improvements and synergies reasonably identifiable and factually supportable relating to, and projected by Company in good faith to result from, actions taken or with respect to which substantial steps have been taken or are expected to be

 

17



 

 

 

 

 

taken by Company or any of its Subsidiaries within 24 months after (A) in the case of the Transactions and the Target Acquisition, the Initial Certain Funds Funding Date, and (B) in the case of asset sales, Investments, Asset Dispositions, operating improvements, mergers or other business combinations, acquisitions, divestitures, restructurings and cost savings initiatives, the date it is consummated; provided that the aggregate amount added back pursuant to this clause (xiii) (other than in connection with any mergers, business combinations, acquisitions or divestitures) and clause (xiv) and pursuant to any pro forma adjustments in accordance with the definition of Pro Forma Basis in any Test Period shall not exceed 30% of Consolidated EBITDA with respect to such period (after giving effect to such add-backs pursuant to this clause (xiii) and clause (xiv) and such adjustments),

 

 

 

 

 

plus

 

(xiv)

 

costs, charges, accruals, reserves or expenses attributable to the undertaking or implementation of cost savings initiatives, operating expense reductions, integration, transition, facilities opening and pre-opening, business optimization and other restructuring costs, charges, accruals, reserves and expenses (including, without limitation, inventory optimization programs, software development costs and costs related to the closure or consolidation of facilities, stores or distribution centers and curtailments, costs related to entry into new markets, consulting fees, signing costs, retention or completion bonuses, relocation expenses, severance payments, modifications to pension and post-retirement employee benefit plans, new systems design and implementation costs and project startup costs); provided that the aggregate amount of any such costs, charges, accruals, reserves or expenses (other than in connection with any mergers, business combinations, acquisitions or divestures), together with any amounts added back pursuant to clause (xiii) and pursuant to any pro forma adjustment in accordance with the definition of Pro Forma Basis in any Test Period shall not exceed 30% of Consolidated EBITDA with respect to such period (after giving effect to such add-backs pursuant to this clause (xiv) and clause (xiii) and such adjustments);

 

 

 

 

 

minus

 

(xv)

 

all other non-cash items increasing Consolidated Net Income for such period,

 

in each case calculated for the applicable period in conformity with GAAP; provided, however, Consolidated EBITDA shall be decreased by the amount of any cash expenditures in such period related to non-cash charges added back to Consolidated EBITDA during any prior periods.

 

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Consolidated Interest Expense” means, for any period, without duplication, the sum of the total interest expense (including that attributable to Capitalized Leases in accordance with GAAP) of Company and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of Company and its Subsidiaries, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing but excluding, however, any amortization of deferred financing costs, all as determined on a consolidated basis for Company and its consolidated Subsidiaries in accordance with GAAP plus the interest component of any lease payment under Attributable Debt transactions paid by Company and its Subsidiaries on a consolidated basis plus any discount and/or interest component in respect of a sale of Receivables Facility Assets by Company and its Subsidiaries regardless of whether such discount or interest would constitute interest under GAAP plus dividends paid in cash on Disqualified Capital Stock.

 

Consolidated Net Debt” means, at any time, (i) without duplication, all Indebtedness described in clauses (i) through (vii) (other than commercial letters of credit and undrawn amounts under standby letters of credit) of the definition of “Indebtedness” and Guarantee Obligations in respect of the foregoing, in each case, of Company and its Subsidiaries (other than the Unrestricted Entities) determined on a consolidated basis in accordance with GAAP (which shall not include any Indebtedness under a Term Facility or any Permitted Refinancing Indebtedness in respect thereof unless and until any Term Loans under such Term Facility or equivalent under any Permitted Refinancing Indebtedness are drawn hereunder or thereunder) plus (ii) the aggregate outstanding amount, without duplication of clause (i), of Attributable Debt of Company and its Subsidiaries (other than the Unrestricted Entities) determined on a consolidated basis (exclusive of Attributable Debt under any Receivables Factoring Facility which is non-recourse except for standard representations, warranties, covenants and indemnities made in connection with such facilities and/or any off-balance sheet Permitted Accounts Receivable Securitization) minus (iii) unrestricted Cash and Cash Equivalents of Company and its Subsidiaries (other than the Unrestricted Entities) determined on a consolidated basis in accordance with GAAP; provided that proceeds of any debt securities or loans deposited into a segregated account in escrow or held pursuant to a similar arrangement in connection with the offering of such debt securities or syndication of such loans or in connection with any Subject Transaction under clause (a), (e) or (g) of such definition shall be deemed unrestricted for purposes of this definition. Consolidated Net Debt shall not include the amount of any Indebtedness that has been defeased or satisfied and discharged in accordance with the terms of such Indebtedness.

 

Consolidated Net Income” means, with respect to any period, the aggregate of the net income (loss) of the Person in question for such period, determined in accordance with GAAP on a consolidated basis; provided that there shall be excluded (i) the income of any unconsolidated Subsidiary and any Person in which any other Person (other than Company or any of the Subsidiaries or any director holding qualifying shares in compliance with applicable law or any other third party holding a de minimis number of shares in order to comply with other similar requirements) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to Company or any of its Wholly-Owned Subsidiaries by such Person during such period and (ii) the cumulative effect of a change in accounting principles. All income of Unrestricted Entities shall be excluded from Consolidated Net Income.

 

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Consolidated Tangible Assets” means, for any Person, the total assets of such Person and its Subsidiaries, as determined from a consolidated balance sheet of such Person and its consolidated Subsidiaries prepared in accordance with GAAP, but excluding therefrom all items that are treated as goodwill and other intangible assets (net of applicable amortization) under GAAP.

 

Contractual Obligation” means, as to any Person, any provision of any Securities issued by such Person or of any indenture or credit agreement or any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound or to which it is otherwise subject.

 

Controlled Group” means the group consisting of (i) any corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as Company; (ii) a partnership or other trade or business (whether or not incorporated) which is under common control (within the meaning of Section 414(c) of the Code) with Company; (iii) a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as Company, any corporation described in clause (i) above or any partnership or trade or business described in clause (ii) above; or (iv) any other Person which is required to be aggregated with Company or any of its Subsidiaries pursuant to regulations promulgated under Section 414(o) of the Code.

 

Controlled Subsidiary” of any Person means a Subsidiary of such Person (i) ninety percent (90%) or more of the Capital Stock of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person and (ii) of which such Person possesses, directly or indirectly, the power to direct or cause the direction of the management or policies, whether through the ownership of voting securities, by agreement or otherwise and “controlled” and “controlling” have correlative meanings thereto.

 

Co-operation Agreement” means that certain Deed, dated as of February 19, 2015, among Company, Purchaser and Target.

 

Cost of Funds” means the rate of interest on each Lender’s share of the relevant Loan under any Facility for the relevant Interest Period which is the percentage rate per annum equal to the sum of: (i) the Applicable Eurocurrency Margin and (ii) the weighted average of the rates notified to the Administrative Agent by each Lender under such Facility as soon as practicable and in any event within 5 Business Days of the first day of that Interest Period (or, if earlier, on the date falling 5 Business Days before the date on which interest is due to be paid in respect of that Interest Period), which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select; provided that if the Administrative Agent or Company so requires, the Administrative Agent and Company shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest and any alternative basis agreed pursuant to this proviso shall, with the prior consent of all the Lenders under such Facility and Company, be binding on all parties to this Agreement.

 

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Court” means The High Court of Justice of England and Wales.

 

Court Meeting” means a meeting convened by the Court between the owners of the Target Shares to seek their approval of the Scheme.

 

Credit Event” means the making of any Loan or the issuance of any Letter of Credit.

 

Credit Exposure” has the meaning assigned to that term in Section 12.8(b).

 

Credit Party” means any Borrower or any Guarantor, and “Credit Parties” means all Borrowers and Guarantors.

 

Customary Permitted Liens” means for any Person:

 

(i)  Liens for Taxes, assessments, levies or governmental charges that are not required to be discharged pursuant to Section 7.5 or not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings diligently pursued for which adequate provision for the payment of such Taxes, assessments or governmental charges has been made on the books of such Person to the extent required by GAAP or, in the case of a Foreign Subsidiary, generally accepted accounting principles in effect from time to time in its jurisdiction of organization;

 

(ii)  (A) mechanics’, suppliers’, processor’s, materialmen’s, carriers’, warehousemen’s, workmen’s, repairmen’s, landlord’s and other Liens arising by operation of law and arising or created in the ordinary course of business and securing obligations of such Person that are not overdue for a period of more than 60 days or are being contested in good faith by appropriate proceedings diligently pursued; provided that adequate provision for the payment of such Liens has been made on the books of such Person to the extent required by GAAP or, in the case of a Foreign Subsidiary, generally accepted accounting principles in effect from time to time in its jurisdiction of organization and (B) deposits securing letters of credit supporting such obligations;

 

(iii)  Liens consisting of pledges or deposits in connection with worker’s compensation, unemployment insurance, old age pensions and social security benefits, other similar benefits and other social security laws or regulations or liens created by pension standards legislation and Liens consisting of pledges and deposits securing letters of credit securing such obligations;

 

(iv)  (A)          Liens consisting of deposits made in the ordinary course of business to secure the performance of bids, tenders, trade contracts, leases (other than Indebtedness), statutory obligations, fee and expense arrangements with trustees and fiscal agents and other similar obligations (exclusive of obligations incurred in connection with the borrowing of money or the payment of the deferred purchase price of property) and customary deposits granted in the ordinary course of business under

 

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operating leases, (B) Liens securing surety, indemnity, performance, appeal, customs and release bonds, and other similar obligations incurred in the ordinary course of business and (C) Liens consisting of pledges and deposits securing letters of credit securing such obligations;

 

(v)  Permitted Real Property Encumbrances;

 

(vi)  attachment, judgment, writs or warrants of attachment or other similar Liens arising in connection with court or arbitration proceedings which do not constitute an Event of Default under Section 10.1(h);

 

(vii)  licenses and sublicenses of patents, trademarks, or other intellectual property rights not interfering, individually or in the aggregate, in any material respect, with the conduct of the business of Company or any of its Subsidiaries taken as a whole;

 

(viii)  Liens (A) in respect of an option or agreement to sell, transfer or dispose of any asset and, to the extent constituting a Lien, negative pledges of such assets pending the consummation of such transaction or (B) solely on any earnest money deposits made by Company or any of its Subsidiaries in connection with any letter of intent or purchase agreement entered into by it;

 

(ix)  Liens arising due to any treasury, depositary, cash management services, automated clearinghouse transfer of funds, overdraft protections, cash pooling, netting or composite accounting arrangements between any one or more of Company and any of its Subsidiaries or between any one or more of such entities and one or more banks or other financial institutions where any such entity maintains deposit accounts, commodities accounts and securities accounts;

 

(x)  leases or subleases granted to others to the extent permitted in Section 8.4(b) and any interest or title of a lessor, licensor or sublessor or sublicensor under any lease or license not prohibited by this Agreement;

 

(xi)  customary rights of set off, revocation, refund or chargeback, Liens or similar rights under agreements with respect to deposits of cash, deposit accounts, securities accounts, commodities accounts, deposit disbursements, concentration accounts or comparable accounts under the laws of any foreign jurisdiction or under the UCC (or comparable foreign law) or arising by operation of law of banks or other financial institutions where Company or any of its Subsidiaries maintains securities accounts, commodities accounts, deposit disbursements, concentration accounts or comparable accounts under the laws of any foreign jurisdiction in the ordinary course of business permitted by this Agreement; and

 

(xii)  Liens arising from filing precautionary UCC financing statements relating solely to personal property operating leases entered into in the ordinary course of business or to goods on consignment.

 

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Daily Rate” means, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternative Currency Alternate Rate.

 

DBNY” has the meaning assigned to that term in Section 4.1(a).

 

Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or other similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

 

Declining Lender” has the meaning assigned to that term in Section 2.14(b).

 

Default Rate” means a variable rate per annum which shall be two percent (2%) per annum plus either (i) the then applicable interest rate hereunder in respect of the amount on which the Default Rate is being assessed or (ii) if there is no such applicable interest rate, the Base Rate plus the Applicable Base Rate Margin.

 

Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Multicurrency Revolving Loans, the Term Loans, participations in LC Obligations or participations in Swing Line Loans required to be funded by it hereunder on (in the case of Term Loans), or within 3 Business Days of (in the case of any other Loans or participations), the date required to be funded by it hereunder (unless such funding is the subject of a good faith dispute), (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within 1 Business Day of the date when due, unless such amount is the subject of a good faith dispute, (c) has notified Company, the Administrative Agent or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply or has failed to comply with its funding obligations under this Agreement or generally under other agreements in which it commits or is obligated to extend credit, or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in such Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

 

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Deposit Account” means a demand, time, savings, passbook, or similar account maintained with a bank, savings and loan association, credit union, or like organization, other than investment property or an account evidenced by a negotiable certificate of deposit.

 

Designated Existing Notes” means those certain (a) 6 3/4% Senior Notes due September 15, 2020 (the “Senior Notes (2020)”), issued by Company in the aggregate principal amount of $500 million pursuant to the Senior Note (2020) Indenture, which term shall include and shall constitute the notes issued in exchange therefor as contemplated by that certain Indenture dated as of March 27, 2006, between Company and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), as trustee, as supplemented from time to time and (b) 5 3/4% Senior Notes due May 15, 2021 (the “Senior Notes (2021)”), issued by Company in the aggregate principal amount of $500 million pursuant to the Senior Note (2021) Indenture, which term shall include and shall constitute the notes issued in exchange therefor as contemplated by that certain Indenture dated as of March 27, 2006, between Company and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), as trustee, as supplemented from time to time.

 

Designated Existing Notes Refinancing” means the redemption of the Designated Existing Notes, together with the payment of all fees and other amounts owing thereon or resulting from such redemption.

 

Disqualified Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event:

 

(i) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than for Capital Stock that is not Disqualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, on or prior to the latest Maturity Date in effect at the time of the incurrence or issuance thereof (measured at the time of the incurrence or issuance thereof) (except as a result of a change of control, asset sale or other requirement to make a customary offer to repurchase upon a “fundamental change” (or similar event) that is customary at the time of incurrence or issuance, in each case so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale or fundamental change event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the termination or expiration of all outstanding Letters of Credit (unless the Unpaid Drawings of the LC Obligations related thereto have been Cash Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable Facing Agent or deemed reissued under another agreement reasonably acceptable to the applicable Facing Agent));

 

(ii) is or becomes convertible into or exchangeable (unless at the sole option of the issuer thereof) for (a) debt securities or (b) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time on or prior to the latest Maturity Date in effect at the time of the incurrence or issuance thereof (measured at the time of the incurrence or issuance thereof) (except in the case of this clause (ii) as a result of a change of control, asset sale

 

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or other requirement to make a customary offer to repurchase upon a “fundamental change” (or similar event) that is customary at the time of incurrence or issuance, in each case so long as any rights of the holders thereof upon the occurrence of a change of control, asset sale or fundamental change event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and the termination or expiration of all outstanding Letters of Credit (unless the Unpaid Drawings of the LC Obligations related thereto have been Cash Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable Facing Agent or deemed reissued under another agreement reasonably acceptable to the applicable Facing Agent)); or

 

(iii) provides for the scheduled payments of dividends in Cash on or prior to the latest Maturity Date in effect at the time of the incurrence or issuance thereof (measured at the time of the incurrence or issuance thereof).

 

Notwithstanding anything to the contrary in the first sentence of this definition, (A) if such Capital Stock is issued to any plan for the benefit of employees or by any such plan to such employees, in each case in the ordinary course of business of Company or any of its Subsidiaries, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any future, present or former employee, director, officer or consultant (or their respective Affiliates or immediate family members) of Company or any of its Subsidiaries shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.

 

Disqualified Institution” has the meaning assigned to that term in the definition of “Eligible Assignee”.

 

Dividend” has the meaning assigned to that term in Section 8.5.

 

Dollar” and “$” means lawful money of the United States of America.

 

Dollar Equivalent” means, at any time, (a) as to any amount denominated in Dollars, the amount thereof at such time and (b) as to any amount denominated in any other currency, the equivalent amount in Dollars as determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of Dollars with such other currency on the most recent Computation Date provided for in Section 2.8(a).

 

Dollar Senior Note (2020) Documents” means the Dollar Senior Notes (2020), the Dollar Senior Note (2020) Indenture and all other documents evidencing, guaranteeing or otherwise governing the terms of the Dollar Senior Notes (2020).

 

Dollar Senior Note (2020) Indenture” means that certain Indenture dated as of November 27, 2015, between Company and Deutsche Bank Trust Company Americas, as

 

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trustee, as supplemented by that certain first supplemental indenture, dated as of December 14, 2015, among Company, the Subsidiaries of Company party thereto and the trustee, as further amended, supplemented, restated or otherwise modified in accordance with the terms hereof.

 

Dollar Senior Notes (2020)” means those certain 4.375% Senior Notes due December 15, 2020, issued by Company in the aggregate principal amount of $1 billion pursuant to the Dollar Senior Note (2020) Indenture, which term shall include and shall constitute the notes issued in exchange therefor as contemplated by the Dollar Senior Note (2020) Indenture.

 

Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United States of America or any state thereof or the District of Columbia other than any such Subsidiary that is (i) an entity that is disregarded for United States federal income tax purposes that owns an Capital Stock in one or more Foreign Subsidiaries and (ii) an entity substantially all the assets of which are Capital Stock in one or more Foreign Subsidiaries. Each Subsidiary described in clauses (i) and (ii) of this definition shall be a Foreign Subsidiary; provided that, at any time, each Subsidiary listed on Schedule 1.1(j) shall be treated as a Domestic Subsidiary under the Loan Documents to the extent that such Person satisfies the requirements of clauses (x) and (y) of the proviso at the end of the definition of “U.S. Domiciled Foreign Guarantor” at such time.

 

Drawing” has the meaning assigned to that term in Section 2.10(d)(ii).

 

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

EEA Member Country” 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 Amount” means (a) with respect to any Loans on any date, the aggregate outstanding principal Dollar Equivalent amount thereof after giving effect to any Borrowings and prepayments or repayments of Loans occurring on such date and (b) with respect to any outstanding LC Obligations on any date, the Dollar Equivalent amount of such LC Obligations on such date after giving effect to any issuances of Letters of Credit occurring on such date and any other changes in the aggregate amount of the LC Obligations as of such date, including as a result of any reimbursements of outstanding Unpaid Drawings under any Letters of Credit or any reductions in the maximum amount available for Drawing under Letters of Credit taking effect on such date.

 

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Eligible Assignee” means a commercial bank, financial institution, financial company, Fund or insurance company in each case, together with its Affiliates or Related Funds, which extends credit or buys loans in the ordinary course of its business or any other Person approved by the Administrative Agent and Company, such approval not to be unreasonably withheld or delayed; provided that an “Eligible Assignee” shall not include (i) a private individual (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a private individual), (ii) an entity (a “Residual Entity”) defined in Article 4.2 of European Council Directive 2003/48/EC on the taxation of savings income, in each case, if such assignee is a resident for tax purposes of any member state of the European Union, Aruba, Guernsey, Jersey, the Isle of Man, Montserrat, or the British Virgin Islands as well as the former Netherlands Antilles (i.e., Bonaire, Curacao, Saba, Sint Eustatius and Sint Maarten), (iii) a competitor of Company and its Subsidiaries or any of such competitor’s Affiliates, in each case identified in writing to the Administrative Agent from time to time and/or (iv) any Person that has been identified by Company in writing to the Administrative Agent prior to the Closing Date, and such Person’s Affiliates identified by Company in writing to the Administrative Agent from time to time thereafter; provided, further, that any designation pursuant to subclause (iii) or subclause (iv) (x) shall become effective two days after delivery of notice in writing to the Administrative Agent and (y) shall not apply retroactively to disqualify any Lender or Participant as of the date such designation becomes effective (each Person under (i), (ii), (iii) or (iv), an “Ineligible Assignee” and each Person under (iii) or (iv), a “Disqualified Institution”).

 

EMU Legislation” means the legislative measures of the European Union for the introduction of, changeover to, or operation of, the Euro in one or more member states.

 

Environmental Claim” means any notice of violation, claim, suit, demand, abatement order, or other lawful order by any Governmental Authority or any Person for any damage, personal injury (including sickness, disease or death), property damage, contribution, cost recovery, or any other common law claims, indemnity, indirect or consequential damages, damage to the environment, nuisance, cost recovery,  the pollution or contamination of  the environment,  or natural resources, or for fines, penalties, restrictions or injunctive relief, in each case, resulting from or based upon (a) the occurrence or existence of a Release or substantial threat of a material Release (whether sudden or non-sudden or accidental or non-accidental) of, or exposure to, any Hazardous Material in, into or onto the environment at, in, by, from or related to the Premises or (b) the violation, or alleged violation, of any Environmental Laws relating to  Company’s or any of its Subsidiaries’ operations or any Premises.

 

Environmental Laws” means any and all applicable foreign, federal, state, provincial or local laws, statutes, ordinances, codes, rules, regulations, orders, decrees, judgments, directives, or Environmental Permits relating to the protection of the environment or, as it relates to exposure to Hazardous Materials, health and safety, including, but not limited to, the following statutes as now written and hereafter amended: the Water Pollution Control Act, as codified in 33 U.S.C. § 1251 et seq., the Clean Air Act, as codified in 42 U.S.C. § 7401 et seq., the Toxic Substances Control Act, as codified in 15 U.S.C. § 2601 et seq., the Solid Waste Disposal Act, as codified in 42 U.S.C. § 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act, as codified in 42 U.S.C. § 9601 et seq., the Emergency Planning and Community Right-to-Know Act of 1986, as codified in 42 U.S.C. §

 

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11001 et seq., and the Safe Drinking Water Act, as codified in 42 U.S.C. § 300f et seq., as well as all provincial, state, local or other equivalents.

 

Environmental Lien” means a Lien in favor of any Governmental Authority for (i) any liability under Environmental Laws or Environmental Permits or (ii) damages relating to, or costs incurred by such Governmental Authority in response to, a Release or threatened Release of a Hazardous Material into the environment.

 

Environmental Permits” means any and all permits, licenses, certificates, authorizations or approvals of any Governmental Authority required by Environmental Laws and necessary or reasonably required for the current operation of the business of Company or any Subsidiary of Company.

 

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

 

ERISA Affiliate” means any Person who together with any Credit Party or any of its Subsidiaries is treated as a single employer with the meaning of (i) Section 414(b) or (c) of the Code or Section 4001(b) of ERISA or (ii) solely for purposes of Sections 412 of the Code or 302 of ERISA, within the meaning of Section 414(m) or (o) of the Code.

 

Escrow Agent” has the meaning assigned to that term in Section 4.1(a).

 

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.

 

EUR Term A Commitment” means, with respect to each EUR Term A Lender, the obligation of such EUR Term A Lender to make EUR Term A Loans, as such commitment may be adjusted from time to time pursuant to this Agreement, which commitment as of the Closing Date is the amount set forth opposite such EUR Term A Lender’s name on Schedule 1.1(a) hereto under the caption “Amount of EUR Term A Commitment”, and “EUR Term A Commitments” means such commitments of all of the EUR Term A Lenders collectively which commitments equal €1,100,000,000 in the aggregate on the Closing Date.

 

EUR Term A Commitment Fee” has the meaning assigned to that term in Section 3.2(b)(ii)(2).

 

EUR Term A Facility” means the credit facility under this Agreement evidenced by the EUR Term A Commitments and the EUR Term A Loans.

 

EUR Term A Lender” means, any Lender that has a EUR Term A Commitment or that has made a EUR Term A Loan.

 

EUR Term A Loan” and “EUR Term A Loans” have the meanings assigned to those terms in Section 2.1(c).

 

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EUR Term A Loan Maturity Date” means the 5th year anniversary of the Initial Certain Funds Funding Date.

 

EUR Term A Pro Rata Share” means, when used with reference to any EUR Term A Lender and any described aggregate or total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the numerator of which shall be such EUR Term A Lender’s EUR Term A Commitment, or if the EUR Term A Commitments have expired, such EUR Term A Lender’s EUR Term A Commitment most recently in effect immediately prior to such expiry, giving effect to any subsequent assignments and the denominator of which shall be the EUR Term A Commitments, or if the EUR Term A Commitments have expired, the EUR Term A Commitments most recently in effect immediately prior to such expiry.

 

Euro” means the lawful currency adopted by or which is adopted by Participating Member States of the European Union.

 

Euro Senior Note (2020) Documents” means the Euro Senior Notes (2020), the Euro Senior Note (2020) Indenture and all other documents evidencing, guaranteeing or otherwise governing the terms of the Euro Senior Notes (2020).

 

Euro Senior Note (2020) Indenture” means that certain Indenture dated as of November 27, 2015, between Company and Deutsche Bank Trust Company Americas, as trustee, as supplemented by that certain second supplemental indenture, dated as of December 14, 2015, among Company, the Subsidiaries of Company party thereto and the trustee, as further amended, supplemented, restated or otherwise modified in accordance with the terms hereof.

 

Euro Senior Notes (2020)” means those certain 3.500% Senior Notes due December 15, 2020, issued by Company in the aggregate principal amount of €400 million pursuant to the Euro Senior Note (2020) Indenture, which term shall include and shall constitute the notes issued in exchange therefor as contemplated by the Euro Senior Note (2020) Indenture.

 

Euro Senior Note (2023) Documents” means the Euro Senior Notes (2023), the Euro Senior Note (2023) Indenture and all other documents evidencing, guaranteeing or otherwise governing the terms of the Euro Senior Notes (2023).

 

Euro Senior Note (2023) Indenture” means that certain Indenture dated as of November 27, 2015, between Company and Deutsche Bank Trust Company Americas, as trustee, as supplemented by that certain third supplemental indenture, dated as of December 14, 2015, among Company, the Subsidiaries of Company party thereto and the trustee, as further amended, supplemented, restated or otherwise modified in accordance with the terms hereof.

 

Euro Senior Notes (2023)” means those certain 4.375% Senior Notes due December 15, 2023, issued by Company in the aggregate principal amount of €700 million pursuant to the Euro Senior Note (2023) Indenture, which term shall include and shall constitute the notes issued in exchange therefor as contemplated by the Euro Senior Note (2023) Indenture.

 

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Eurocurrency Loan” means any Loan bearing interest at a rate determined by reference to the Eurocurrency Rate.

 

Eurocurrency Rate” means the aggregate of (1) and (2) below:

 

(1)

 

(a)                                 in the case of Dollar denominated Loans, (i) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the appropriate page of the Reuters screen that displays the ICE Benchmark Administration Limited rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (or the successor thereto if ICE Benchmark Administration Limited is no longer making the applicable interest settlement rate available) (the “US LIBOR Screen Rate”), determined as of approximately 11:00 a.m. (London time) on the applicable Interest Rate Determination Date; provided that if the US LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates) or, in the event such rate is not available for any reason, (ii) the rate for such Interest Period shall be the interest rate per annum at which the Administrative Agent could borrow deposits in Dollars for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurocurrency Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period, were it to do so by asking for and then accepting offers from major banks in the London interbank market for Dollars at their request at approximately 11:00 a.m. (London time) on the applicable Interest Rate Determination Date; or

 

(b)                                 in the case of Euro denominated Loans, (i) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the appropriate page of the Reuters screen that displays the Global Rate Set Systems Limited rate for deposits in Euros (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (or the successor thereto appointed by the European Money Markets Institute, if Global Rate Set Systems Limited is no longer making the applicable interest settlement rate available) (the “EURIBOR Screen Rate”), determined as of approximately 11:00 a.m. (Brussels time) on the applicable Interest Rate Determination Date; provided that if the EURIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates) or, in the event such rate is not available, (ii) the rate for such Interest Period shall be the interest rate per annum at which the Administrative Agent could borrow deposits in Euros for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurocurrency Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest

 

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Period, were it to do so by asking for and then accepting offers from major banks in the European interbank market for Euros at their request at approximately 11:00 a.m. (Brussels time) on the applicable Interest Rate Determination Date; or

 

(c)                                  in the case of Loans denominated in any Alternative Currency (other than Euro), (i) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the appropriate page of the Reuters screen that displays the ICE Benchmark Administration Limited rate for deposits in the applicable Alternative Currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period (or the successor thereto if ICE Benchmark Administration Limited is no longer making the applicable interest settlement rate available) (the “LIBOR Screen Rate”), determined as of approximately 11:00 a.m. (London time) on the applicable Interest Rate Determination Date; provided that if the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates) or, in the event such rate is not available for any reason, (ii) the rate for such Interest Period shall be the interest rate per annum at which the Administrative Agent could borrow deposits in the applicable Alternative Currency for delivery on the first day of such Interest Period in immediately available funds in the approximate amount of the Eurocurrency Loan being made, continued or converted by the Administrative Agent and with a term equivalent to such Interest Period, were it to do so by asking for and then accepting offers from major banks in the London interbank market for the applicable Alternative Currency at their request at approximately 11:00 a.m. (London time) on the applicable Interest Rate Determination Date; or

 

(d)                                 for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to (i) the US LIBOR Screen Rate (or any successor to or substitute for such rate), determined at approximately 11:00 a.m. (London Time) on the applicable Interest Rate Determination Date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day; provided that if the US LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement (but if more than one rate is specified on such page, the rate will be an arithmetic average of all such rates) or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in Same Day Funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month would be offered by the Administrative Agent (or an affiliate thereof) to major banks in the London interbank market at their request at the date and time of determination; and

 

(2)                                 the then current cost of the Lenders of complying with any Eurocurrency Reserve Requirements.

 

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Eurocurrency Reserve Requirements” means, for any day as applied to a Eurocurrency Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve liquid asset or similar requirements in effect on such day (including, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto), including without limitation, under regulations issued from time to time by (a) the Board, (b) any Governmental Authority of the jurisdiction of the relevant currency or (c) any Governmental Authority of any jurisdiction in which advances in such currency are made to which banks in any jurisdiction are subject for any category of deposits or liabilities customarily used to fund loans in such currency or by reference to which interest rates applicable to loans in such currency are determined.

 

European Holdco” means Ball European Holdings S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of Luxembourg, having its registered office at 20, Rue Eugène Ruppert, L-2453 Luxembourg, Grand Duchy of Luxembourg, having a share capital of EUR 26,027,900 and registered with the Luxembourg Trade and Companies’ Register (R.C.S. Luxembourg) under number B 90.413.

 

European Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of May 29, 2000 on Insolvency Proceedings, as amended from time to time.

 

European Swing Line Lender” means Deutsche Bank AG New York Branch or any of its Affiliates acting in such capacity.

 

European Swing Line Loans” has the meaning assigned to that term in Section 2.1(f)(i)(2).

 

“European Swing Line Note” has the meaning assigned to such term in Section 2.2(a)(5).

 

Event of Default” has the meaning assigned to that term in Section 10.1.

 

Excess Cash On Hand” has the meaning assigned to that term in Section 4.4(e).

 

Exchange Act” means the Securities Exchange Act of 1934, as amended and as codified in 15 U.S.C. 78a et seq., and as hereafter amended.

 

Exchange Rate” means, on any day, with respect to conversions between Dollars and any other currency, the Spot Rate; provided that if at the time of any such determination, for any reason, no such Spot Rate is being quoted, the Administrative Agent may use any reasonable method it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error. For purposes of determining the Exchange Rate in connection with an Alternative Currency Loan such Exchange Rate shall be determined as of the Exchange Rate Determination Date for such Borrowing. The Administrative Agent shall provide Borrowers with the then current Exchange Rate from time to time upon any Borrower’s request therefor.

 

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Exchange Rate Determination Date” means for purposes of the determination of the Exchange Rate of any stated amount on any Business Day in relation to any Alternative Currency Loan, the date which is 2 Business Days prior to such Eurocurrency borrowing and the same day for Sterling borrowings.

 

Excluded Amounts” has the meaning assigned to that term in Section 4.4(c).

 

Excluded Subsidiary” means any Subsidiary of Company:

 

(a)                                 that is an Unrestricted Entity;

 

(b)                                 that, in accordance with the Agreed Guaranty and Security Principles, is not required to guarantee the Obligations (including pursuant to the Guaranty) or pledge or grant a security interest in its assets (including Capital Stock) on the Closing Date (or, if later, on the date such Subsidiary is formed or acquired);

 

(c)                                  that is a special purpose entity (including Receivables Subsidiaries) or a captive insurance company; or

 

(d)                                 in the case of any obligation under any hedging arrangement that constitutes a “swap” within the meaning of section 1(a)(47) of the Commodity Exchange Act, any Subsidiary of Company that is not an “Eligible Contract Participant” as defined under the Commodity Exchange Act.

 

Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient:

 

(a)                                 Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes,

 

(b)                                 in the case of a Lender, withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (1) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment under Section 3.6(e)) or (2) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 4.7, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office,

 

(c)                                  any United Kingdom taxes required to be deducted or withheld (a “UK Tax Deduction”) from a payment of interest under any Loan Document if on the date on which the payment falls due:

 

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(i)             the payment could have been made to the relevant Lender without a UK Tax Deduction if it was a UK Qualifying Lender, but on that date that Lender is not or has ceased to be a UK Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; or

 

(ii)          the relevant Lender is a UK Qualifying Lender solely by virtue of sub-paragraph (b) of the definition of UK Qualifying Lender and that relevant Lender has not given a UK Tax Confirmation to Company and the payment could have been made to the relevant Lender without a UK Tax Deduction if that Lender had given a UK Tax Confirmation to Company, on the basis that the UK Tax Confirmation would have enabled the relevant Credit Party to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the UK Taxes Act; or

 

(iii)       the relevant Lender is a UK Qualifying Lender solely under sub-paragraph (b) of the definition of UK Qualifying Lender and an officer of HMRC has given (and not revoked) a direction (a “UK Direction”) under section 931 of the UK Taxes Act which relates to that payment and that Lender has received from the relevant Credit Party a certified copy of that UK Direction and the payment could have been made to the Lender without any UK Tax Deduction if that UK Direction had not been made; or

 

(d)                                 Taxes attributable to such Recipient’s failure to comply with Section 4.7(f);

 

(e)                                  the bank levy as set out in the Finance Act 2011 of the United Kingdom, the bank levy as set out in the Bank Tax Act of the Netherlands and any other levy or tax of a similar nature imposed by reference to the balance sheet, assets, liabilities, capital base (or any part of it) or minimum regulatory capital of a financial institution or other entity carrying out financial transactions; and/or

 

(f)                                   any U.S. federal withholding Taxes imposed under FATCA.

 

Existing 2013 Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of June 13, 2013, among Company, certain Subsidiaries of Company, the lenders party thereto, Deutsche Bank AG New York Branch, as administrative agent, and the other parties thereto.

 

Existing 2015 Credit Agreement” means that certain Credit Agreement, dated as of February 19, 2015, among Company, certain Subsidiaries of Company, the lenders party thereto, Deutsche Bank AG New York Branch, as administrative agent, and the other parties thereto.

 

Existing Brazilian Debt” means Indebtedness of Latapack under the Banco Bradesco Loan Agreement, the Banco do Brasil Fixed Credit Facility Agreement, the Banco do

 

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Brasil Tokyo Loan Agreement, the IFC Loan Agreement, and the Itau Unibanco Loan Agreement.

 

Existing Confidentiality Agreement” has the meaning assigned to that term in Section 12.18.

 

Existing Maturity Date” has the meaning assigned to that term in Section 2.14(a).

 

Existing Target Credit Facilities” means each of the agreements evidencing Indebtedness in Schedule 1.1(h).

 

Existing Target Notes” means those certain Notes (under and as defined in the Note Purchase Agreement, dated as of October 23, 2012, between Target and the purchasers named therein), issued by Target.

 

Existing Target Subordinated Debt” means Indebtedness under the €750,000,000 6.75 per cent capital securities of Target due 2067.

 

Extended Additional Facility Commitment” means the Additional Facility Commitment of any Lender that agrees to an extension of the Maturity Date with respect to such Additional Facility Commitment pursuant to a Maturity Date Extension Request, as such commitment may be adjusted from time to time pursuant to this Agreement.

 

Extended Facility” means any Extended Term Facility and/or any Extended Revolving Facility, as the context requires.

 

Extended Revolving Commitment” means the Multicurrency Revolving Commitment of any Multicurrency Revolving Lender that agrees to an extension of the Maturity Date with respect to such Multicurrency Revolving Commitment pursuant to a Maturity Date Extension Request, as such commitment may be adjusted from time to time pursuant to this Agreement.

 

Extended Revolving Facility” means any Multicurrency Revolving Facility, Additional Revolving Facility or Replacement Revolving Facility that is extended pursuant to Section 2.14.

 

Extended Revolving Loans” means the Multicurrency Revolving Loans of any Lender that agrees to an extension of the Maturity Date with respect to such Multicurrency Revolving Loans pursuant to a Maturity Date Extension Request.

 

Extended Term Commitment” means the Term Commitment of any Term Lender that agrees to an extension of the Maturity Date with respect to such Term Commitment pursuant to a Maturity Date Extension Request, as such commitment may be adjusted from time to time pursuant to this Agreement.

 

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Extended Term Facility” means any Term Facility that is extended pursuant to Section 2.14.

 

Extended Term Loans” means the Term Loans of any Lender that agrees to an extension of the Maturity Date with respect to such Term Loans pursuant to a Maturity Date Extension Request.

 

Extension Effective Date” has the meaning assigned to that term in Section 2.14(b).

 

Facility” means any of the credit facilities established under this Agreement, including pursuant to Sections 2.1, 2.9, 2.12, 2.13 and 2.14.

 

Facing Agent” means each Initial Facing Agent and any other Lender agreed to by such Lenders from time to time (in each case other than any Defaulting Lender), Company and the Administrative Agent which has issued, or has agreed to issue, a Letter of Credit pursuant to Section 2.10.

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version of such Sections that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with any of the foregoing and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.

 

Federal Funds Rate” means on any one day, the rate per annum equal to the weighted average (rounded upwards, if necessary, to the nearest 1/100th of 1%) of the rate on overnight federal funds transactions with members of the Federal Reserve System only arranged by federal funds brokers, as published as of such day by the Federal Reserve Bank of New York, or, if such rate is not so published, the average of the quotations for such day on such transactions received by the Administrative Agent from 3 federal funds brokers of recognized standing selected by the Administrative Agent; provided that if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

Fee Letter” means that certain Fee Letter, dated as of the date hereof, among Company, the Administrative Agent and the Lead Arrangers and their respective affiliates party thereto, as the same may at any time be amended, supplemented, restated or otherwise modified.

 

Finance Party” has the meaning assigned to that term in Section 4.7(h).

 

First Lien Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Net Debt as of such date that is secured by Liens on the property or assets of Company and its Subsidiaries that rank pari passu with the Liens on the Collateral that secure the Facilities to (b) Consolidated EBITDA for the most recently completed four Fiscal Quarter period for which financial statements are internally available.

 

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Fiscal Quarter” has the meaning assigned to that term in Section 7.13.

 

Fiscal Year” has the meaning assigned to that term in Section 7.13.

 

Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

 

Foreign Pension Plan” means any plan, fund (including, without limitation, any super-annuation fund) or other similar program, arrangement or agreement established or maintained outside of the United States of America by Company or one or more of its Subsidiaries primarily for the benefit of employees of Company or such Subsidiaries residing outside the United States of America, which plan, fund, or similar program provides or results in, retirement income, a deferral of income in contemplation of retirement or payments required by applicable law to be made upon termination of employment, and which is not subject to ERISA or the Code.

 

Foreign Proceeds” has the meaning assigned to that term in Section 4.4(f).

 

Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.  Each U.S. Domiciled Foreign Guarantor shall be treated as a Foreign Subsidiary for all purposes under the Loan Documents.

 

Form 10-K” means the annual report in the Form 10-K filed by Company with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act for the 2015 Fiscal Year.

 

Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to a Facing Agent, such Defaulting Lender’s Multicurrency Revolver Pro Rata Share of the outstanding LC Obligations other than LC Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Multicurrency Revolving Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to a Swing Line Lender, such Defaulting Lender’s Multicurrency Revolver Pro Rata Share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Multicurrency Revolving Lenders, repaid by the applicable Borrower or Cash Collateralized in accordance with the terms hereof.

 

Fund” means a Person that is a fund that makes, purchases, holds or otherwise invests in commercial loans or similar extensions of credit in the ordinary course of its existence.

 

Funding Date” means the date of any making of Certain Funds Term Loans pursuant to Section 5.2 or Section 5.3.

 

GAAP” means generally accepted accounting principles in the U.S. as set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant

 

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segment of the accounting profession in the U.S., that are applicable to the circumstances as of the date of determination.

 

General Meeting” means an extraordinary general meeting of the shareholders of the Target convened at the direction of the Court to approve a Scheme.

 

Government Acts” has the meaning assigned to that term in Section 2.10(h).

 

Governmental Authority” means any nation or government, any intergovernmental or supranational body, any state, province or other political subdivision thereof and any entity lawfully exercising executive, legislative, judicial, regulatory or administrative functions of government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).

 

Guarantee Obligations” means, as to any Person, without duplication, any direct or indirect contractual obligation of such Person guaranteeing or intended to guarantee any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent: (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (ii) to advance or supply funds (a) for the purchase or payment of any such primary obligation, or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; or (iv) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligations shall not include any endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation at any time shall be deemed to be an amount equal to the lesser at such time of (a) the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made or (b) the maximum amount for which such Person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation; or, if not stated or determinable, the maximum reasonably anticipated liability (assuming full performance) in respect thereof.

 

Guarantors” means, collectively, Company and each of Company’s Wholly-Owned Domestic Subsidiaries and Wholly-Owned U.S. Domiciled Foreign Guarantors (in each case other than Excluded Subsidiaries), in each case that is a Material Subsidiary now or hereafter party to the Guaranty (until released therefrom as expressly permitted hereunder); provided that the guarantee obligations of each Wholly-Owned U.S. Domiciled Foreign Guarantor that is a party to the Guaranty shall be limited to the Obligations of Credit Parties that are Foreign Subsidiaries in accordance with Section 7.12. Notwithstanding anything to the contrary in any Loan Document, by written notice to the Administrative Agent, Company may elect to have a Subsidiary become a Guarantor hereunder or to cause an Excluded Subsidiary to become a Guarantor hereunder; provided that such Subsidiary shall comply with the requirements of Section 7.12 mutatis mutandis.

 

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Guaranty” has the meaning assigned to that term in Section 5.1(a)(ii).

 

Hazardous Materials” means (a) any petrochemical or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, polychlorinated biphenyls and radon gas; or (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “restricted hazardous materials,” “extremely hazardous wastes,” “restrictive hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar meaning and regulatory effect.

 

HMRC” means Her Majesty’s Revenue & Customs.

 

Honor Date” has the meaning assigned to that term in Section 2.10(d).

 

IFC Loan Agreement” means the Loan Agreement, dated as of April 15, 2011, by and among Latapack and International Finance Corporation.

 

Indebtedness” means, as applied to any Person (without duplication):

 

(i)                       all indebtedness of such Person for borrowed money;

 

(ii)                    the deferred and unpaid balance of the purchase price of assets or services (other than (x) trade payables and other accrued liabilities incurred in the ordinary course of business, (y) deferred compensation arrangements and (z) earn-out obligations unless such earn-out obligations have been liquidated and are not paid when due) which purchase price is due more than 6 months from the date of incurrence of the obligation in respect thereof;

 

(iii)      all Capitalized Lease Obligations;

 

(iv)                all Indebtedness of the type described in clauses (i) through (iii) above and clauses (v) through (x) below secured by any Lien on any property owned by such Person, whether or not such Indebtedness has been assumed by such Person or is nonrecourse to such Person (provided that with respect to Indebtedness that is nonrecourse to the credit of such Person, such Indebtedness shall be taken into account only to the extent of the lesser of the fair market value of the asset(s) subject to such Lien and the amount of Indebtedness secured by such Lien);

 

(v)                   [reserved];

 

(vi)                indebtedness or obligations of such Person, in each case, evidenced by bonds, notes or similar written instruments;

 

(vii)             the face amount of all letters of credit and bankers’ acceptances issued for the account of such Person, and without duplication, all drafts drawn thereunder other than, in each case, commercial or standby letters of credit or the functional equivalent thereof issued in connection with performance, bid or advance

 

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payment obligations incurred in the ordinary course of business, including, without limitation, performance requirements under workers compensation or similar laws;

 

(viii)   net obligations of such Person under Swap Contracts;

 

(ix)                Guarantee Obligations of such Person in respect of Indebtedness described in clauses (i) through (viii) and clause (x) of this definition); and

 

(x)                   Attributable Debt of such Person;

 

provided that Indebtedness shall exclude (A) COLI Policy Advances except to the extent such COLI Policy Advances constitute Indebtedness of Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP and (B) loans or advances made by Company or any of its Subsidiaries to Company or any of its Subsidiaries to the extent that such loans or advances are made or issued in the ordinary course of business and have a term of 364 days or less (inclusive of any rollover or extension of the term).

 

Indemnified Person” has the meaning assigned to that term in Section 12.4(c).

 

Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of a Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

Ineligible Assignee” has the meaning assigned to that term in the definition of “Eligible Assignee”.

 

Initial Certain Funds Funding Date” means the first date on which the conditions precedent set forth in Section 5.2 have been satisfied or waived in accordance with this Agreement, the initial acquisition of Target Shares is consummated and there occurs a Borrowing of Certain Funds Term Loans under this Agreement.

 

Initial Facing Agents” has the meaning assigned to that term in the introduction to this Agreement.

 

Intellectual Property” has the meaning assigned to that term in Section 6.20.

 

Intercompany Indebtedness” means Indebtedness of Company or any of its Subsidiaries which is owing to Company or any of its Subsidiaries.

 

Interest Payment Date” means (a) as to any Base Rate Loan, each Quarterly Payment Date to occur while such Loan is outstanding, (b) as to any Eurocurrency Loan having an Interest Period of 3 months or less, the last day of the Interest Period applicable thereto and (c) as to any Eurocurrency Loan having an Interest Period longer than 3 months, each day that is a 3 month anniversary of the first day of the Interest Period applicable thereto and the last day of the Interest Period applicable thereto; provided, however, that in addition to the foregoing, each of (i) the date upon which both the Multicurrency Revolving Commitments have been terminated and the Multicurrency Revolving Loans are due and payable, and (ii) the applicable Maturity

 

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Date, shall be deemed to be an “Interest Payment Date” with respect to any interest which is then accrued hereunder for such Loan.

 

Interest Period” has the meaning assigned to that term in Section 3.4.

 

Interest Rate Determination Date” means the date for calculating the Eurocurrency Rate for an Interest Period, which date shall be (i) in the case of any Eurocurrency Loan in Dollars, the second Business Day prior to first day of the related Interest Period for such Loan or (ii) in the case of any Eurocurrency Loan in an Alternative Currency consisting of Euro or Sterling, the date on which quotations would ordinarily be given by prime banks in the relevant interbank market for deposits in the Applicable Currency for value on the first day of the related Interest Period for such Eurocurrency Loan but in any event not earlier than the second Business Day prior to the first day of the related Interest Period; provided, however, that if for any such Interest Period with respect to an Alternative Currency Loan in a currency other than Euro or Sterling, quotations would ordinarily be given on more than one date, the Interest Rate Determination Date shall be the last of those dates.

 

Inventory” means, inclusively, all inventory as defined in the UCC from time to time and all goods, merchandise and other personal property wherever located, now owned or hereafter acquired by Company or any of its Subsidiaries of every kind or description which are held for sale or lease or are furnished or to be furnished under a contract of service or are raw materials, work-in-process or materials used or consumed or to be used or consumed in a business.

 

Investment” means, as applied to any Person, (i) any direct or indirect purchase or other acquisition by that Person of, or a beneficial interest in, Securities of any other Person, or a capital contribution by that Person to any other Person, (ii) any direct or indirect loan or advance to any other Person (other than prepaid expenses or any Receivable created or acquired in the ordinary course of business and other than any intercompany loans or advances to the extent that such intercompany loans, advances are made or issued in the ordinary course of business and have a term of 364 days or less (inclusive of any rollover or extension of the term)), including all Indebtedness to such Person in respect of consideration from a sale of property by such person other than in the ordinary course of its business, (iii) any Acquisition or (iv) any purchase by that Person of a futures contract or such person otherwise becoming liable for the purchase or sale of currency or other commodity at a future date in the nature of a futures contract. The amount of any Investment by any Person on any date of determination shall be the sum of the value of the gross assets transferred to or acquired by such Person (including the amount of any liability assumed in connection with such transfer or acquisition by such Person to the extent such liability would be reflected on a balance sheet prepared in accordance with GAAP) plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, minus the amount of all cash returns of principal or capital thereon, cash dividends thereon, cash interest thereon and other cash returns on investment thereon or liabilities expressly assumed by another Person (other than Company or its Subsidiaries) in connection with the sale of such Investment. Whenever the term “outstanding” is used in this Agreement with reference to an Investment, it shall take into account the matters referred to in the preceding sentence.

 

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IRS” means the United States Internal Revenue Service, or any successor or analogous organization.

 

ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

 

Issuer Documents” means with respect to any Letter of Credit, the Notice of Issuance, the Letter of Credit Amendment Request, and any other document, agreement and instrument entered into by Facing Agent and a Borrower or in favor of Facing Agent and relating to such Letter of Credit.

 

Issuing Country” has the meaning assigned to that term in Section 2.8(e).

 

Itau Unibanco Loan Agreement” means the International Loan Agreement, dated as of December 16, 2014, by and among Latapack and Itau Unibanco SA Nassau Branch.

 

Latapack” means Latapack-Ball Embalagens Ltda, a sociedade limitada organized under the laws of Brazil.

 

LC Commission” has the meaning assigned to that term in Section 2.10(g)(ii).

 

LC Obligations” means, at any time, an amount equal to the sum of (a) the aggregate Stated Amount of the then outstanding Letters of Credit and (b) the aggregate amount of Unpaid Drawings under Letters of Credit that have not been reimbursed. The LC Obligation of any Lender at any time means its Multicurrency Revolver Pro Rata Share of the aggregate LC Obligations outstanding at such time.

 

LC Participant” has the meaning assigned to that term in Section 2.10(e)(i).

 

LCT Election” has the meaning assigned to such term in Section 1.5.

 

LCT Test Date” has the meaning assigned to such term in Section 1.5.

 

Lead Arrangers” means Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Bank USA, KeyBanc Capital Markets Inc., Mizuho Bank, Ltd. and Coöperatieve Rabobank U.A., New York Branch.

 

Lender” and “Lenders” have the meanings assigned to those terms in the introduction to this Agreement and shall include any New Lender and any Person that becomes a “Lender” as contemplated by Section 12.8, any Term Lender, any Swing Line Lender and any Multicurrency Revolving Lender.

 

Letter of Credit Amendment Request” has the meaning assigned to that term in Section 2.10(c).

 

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Letter of Credit Payment” means as applicable (a) all payments made by the respective Facing Agent pursuant to either a draft or demand for payment under a Letter of Credit or (b) all payments by Lenders having Multicurrency Revolving Commitments to such Facing Agent in respect thereof (whether or not in accordance with their Multicurrency Revolver Pro Rata Share).

 

Letters of Credit” means, collectively, all Standby Letters of Credit and Bank Guarantees, in each case issued pursuant to this Agreement.

 

Lien” means any mortgage, pledge, hypothecation, collateral assignment, security interest, encumbrance, lien (statutory or otherwise), charge, or deposit arrangement (other than a deposit to a Deposit Account not intended as security) of any kind or other arrangement of similar effect (including, without limitation, any conditional sale or other title retention agreement or lease in the nature thereof, or any sale of receivables with recourse against the seller or any Affiliate of the seller; provided that any such sale shall not be deemed to be with recourse solely because there is limited recourse on account of environmental warranties and indemnities, indemnities for and liabilities arising from fraud, misrepresentation, misapplication or non-payment of rents, profits, insurance and condemnation proceeds, and other customary carveouts in a non-recourse sale of receivables); provided that in no event shall an operating lease be deemed to constitute a Lien.

 

Limited Condition Acquisition” means any Acquisition of, or similar third-party Investment by one or more of Company and its Subsidiaries in, any assets, business or Person permitted by this Agreement the consummation of which is not conditioned on the availability of, or on obtaining, financing.

 

Limited Condition Transaction” means any (a) Limited Condition Acquisition, (b) redemption or repayment of Indebtedness requiring irrevocable advance notice or any irrevocable offer to purchase Indebtedness that is not subject to obtaining financing or (c) any declaration of a Dividend in respect of, or irrevocable advance notice of, or any irrevocable offer to, purchase, redeem or otherwise acquire or retire for value, any Capital Stock of Company that is not subject to obtaining financing.

 

Loan” means any Term Loan, Multicurrency Revolving Loan, Swing Line Loan, loan made pursuant to any tranche of Additional Term Loans, loan made pursuant to any other Additional Facility, Replacement Revolving Loan, Replacement Term Loan, loan made pursuant to any Extended Revolving Commitment, or loan made pursuant to any tranche of Extended Term Loans, as applicable, and “Loans” means all such loans collectively.

 

Loan Documents” means, collectively, this Agreement, the Notes, each Security Document, the Guaranty, each other document designated in writing by (i) the Administrative Agent and/or the Lenders and (ii) Company as a “Loan Document”, and, solely for purposes of Section 12.4(c), the Fee Letter, in each case as the same may at any time be amended, supplemented, restated or otherwise modified and in effect.

 

Luxembourg” means the Grand Duchy of Luxembourg.

 

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Luxembourg Credit Party” means (a) European Holdco, (b) Ball Finance, (c) Ball International Luxembourg, (d) Ball International Partners and (e) each other Person organized or incorporated under the laws of Luxembourg (i) that is or becomes an Other Subsidiary Borrower or (ii) grants security in respect of any Capital Stock owned by it in a Borrower or a Material Subsidiary in accordance with Section 7.12 or Section 7.14, in the case of clauses (a) through (e), solely to the extent that such Person remains an Other Subsidiary Borrower or continues to grant security in respect of Capital Stock in accordance with the terms of this Agreement.

 

Luxembourg Insolvency Proceeding” means , in relation to a Luxembourg Credit Party or any of its assets, any corporate action, legal proceedings or other legal procedure or step in relation to bankruptcy (faillite), insolvency, judicial or voluntary liquidation (liquidation judiciaire ou volontaire), composition with creditors (concordat préventif de faillite), moratorium or reprieve from payment (sursis de paiement), controlled management (gestion contrôlée), fraudulent conveyance (action paulienne).

 

Majority Lenders” of any Facility means those Non-Defaulting Lenders which would constitute the Required Lenders under, and as defined in, this Agreement if all outstanding Obligations of other Facilities under this Agreement were repaid in full and all Commitments with respect thereto were terminated.

 

Margin Stock” has the meaning specified in Regulation U issued by the Board.

 

Master Agreement” has the meaning assigned to that term in the definition of Swap Contract.

 

Material Adverse Effect” means a material adverse effect on (a) the business, financial condition or operations of Company and its Subsidiaries taken as a whole, (b) the ability of any Credit Party to perform its respective payment obligations under any Loan Document to which it is a party, or (c) the rights and benefits available to the Lenders, taken as a whole, under any Loan Document.

 

Material Subsidiary” means any Subsidiary of Company, which either (i) the consolidated total assets of which were more than 8% of Company’s Consolidated Assets as of the end of the most recently completed Fiscal Year of Company for which audited financial statements are available or (ii) the consolidated total revenues of which were more than 7% of Company’s consolidated total revenues for such period; provided that Purchaser and each Other Subsidiary Borrower (only for so long as such Subsidiary remains a Borrower, unless such Subsidiary otherwise meets the requirements under this definition) shall be deemed to be Material Subsidiaries. Assets of Foreign Subsidiaries shall be converted into Dollars at the rates used for purposes of preparing the consolidated balance sheet of Company included in such audited financial statements.

 

Maturity Date” means (a) with respect to the Multicurrency Revolving Facility (but excluding any Extended Revolving Commitments and any Loans made pursuant thereto), the Revolver Termination Date, (b) with respect to each Term Facility, the Term Maturity Date

 

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for such Term Facility, and (c) with respect to any Additional Facility or any tranche of Extended Additional Facility Commitments, Extended Revolving Commitments, Extended Term Commitments or Extended Term Loans, the date specified as the “Maturity Date” (or equivalent term) therefor in the applicable amendment to this Agreement setting forth the terms of such Additional Facility or tranche of Extended Additional Facility Commitments, Extended Revolving Commitments, Extended Term Commitments or Extended Term Loans, as the context may require.

 

Maturity Date Extension Request” has the meaning assigned to that term in Section 2.14(a).

 

Maximum Commitment” means, when used with reference to any Lender under any Facility, such Lender’s Commitment under such Facility.

 

Minimum Borrowing Amount” means (i) with respect to Base Rate Loans, $1,000,000, (ii) with respect to Eurocurrency Loans, $5,000,000 in the case of a Borrowing in Dollars, £3,000,000 in the case of a Borrowing in Sterling and €5,000,000 in the case of a Borrowing in Euros, (iii) with respect to U.S. Swing Line Loans, $1,000,000 and (iv) with respect to European Swing Line Loans, £500,000 in the case of a Borrowing in Sterling and €1,000,000 in the case of a Borrowing in Euro.

 

Minimum Borrowing Multiple” means, (i) in the case of a Borrowing in Dollars, $1,000,000, (ii) in the case of a Borrowing in Euros, €1,000,000 and (iii) in the case of a Borrowing in Sterling £500,000.

 

Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business thereof.

 

Most Recent Total Net Leverage Ratio” means, at any date, the Net Leverage Ratio as of the end of the most recent Test Period; provided, however, that if Company fails to deliver such financial statements as required by Section 7.1 and further fails to remedy such default within 5 days of notice thereof from the Administrative Agent, then, until Company delivers such financial statements, without prejudice to any other rights of any Lender hereunder, the Most Recent Total Net Leverage Ratio shall be deemed to be greater than 3.5 to 1.0 as of the date such financial statements were required to be delivered under Section 7.1.

 

Multicurrency Revolver Pro Rata Share” means, when used with reference to any Multicurrency Revolving Lender under any Facility and any described aggregate or total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the numerator of which shall be such Multicurrency Revolving Lender’s Multicurrency Revolving Commitment under such Facility or, if the Revolver Termination Date with respect to such Facility has occurred, such Multicurrency Revolving Lender’s Multicurrency Revolving Commitment most recently in effect under such Facility immediately prior to such date, giving effect to any subsequent assignments and the denominator of which shall be the Multicurrency Revolving Commitments under such Facility or, if the Revolver

 

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Termination Date with respect to such Facility has occurred, the Multicurrency Revolving Commitments most recently in effect under such Facility immediately prior to such date.

 

Multicurrency Revolving Commitment” means, with respect to any Multicurrency Revolving Lender, the obligation of such Multicurrency Revolving Lender to make Multicurrency Revolving Loans (including loans made pursuant to any Additional Facility that increases the Multicurrency Revolving Facility and loans made pursuant to any Extended Revolving Commitment or Replacement Revolving Commitment) and to participate in Letters of Credit and Swing Line Loans, as such commitment may be adjusted from time to time pursuant to this Agreement, which commitment as of the Closing Date is the amount set forth opposite such lender’s name on Schedule 1.1(a) hereto under the caption “Amount of Multicurrency Revolving Commitment”, and “Multicurrency Revolving Commitments” means such commitments collectively, which commitments equal $1,500,000,000 in the aggregate as of the Closing Date.

 

Multicurrency Revolving Commitment Fee” has the meaning assigned to that term in Section 3.2(b)(i).

 

Multicurrency Revolving Commitment Percentage” means, as to any Lender, such Lender’s Multicurrency Revolver Pro Rata Share.

 

Multicurrency Revolving Commitment Period” means, with respect to the Multicurrency Revolving Commitments, the period from and including the date hereof (or in the case of any class of Extended Revolving Commitments or Replacement Revolving Commitments, from and including the date such commitments become effective), to but not including the Maturity Date for such Facility or, in the case of the Swing Line Commitment, the earlier of the Maturity Date for such Facility and the date that is 5 Business Days prior to the latest Maturity Date for such Facility.

 

Multicurrency Revolving Facility” means the credit facility under this Agreement evidenced by the Multicurrency Revolving Commitments (including commitments under any Additional Facility that increases the Multicurrency Revolving Commitments, Extended Revolving Commitments and Replacement Revolving Commitments) and the Multicurrency Revolving Loans (including loans made pursuant to any Additional Facility that increases the Multicurrency Revolving Facility and loans made pursuant to any Extended Revolving Commitment and any Replacement Revolving Commitment).

 

Multicurrency Revolving Lender” means any Lender which has a Multicurrency Revolving Commitment or has made a Multicurrency Revolving Loan. Each reference to any Multicurrency Revolving Lender shall be deemed to include such Multicurrency Revolving Lender’s Applicable Designee. Notwithstanding the designation by any Multicurrency Revolving Lender of an Applicable Designee, the Credit Parties and the Administrative Agent shall be permitted to deal solely and directly with such Multicurrency Revolving Lender in connection with such Multicurrency Revolving Lender’s rights and obligations under this Agreement.

 

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Multicurrency Revolving Loan” and “Multicurrency Revolving Loans” have the meanings given in Section 2.1(a).

 

Multicurrency Revolving Note” has the meaning assigned to that term in Section 2.2(a)(3).

 

Multiemployer Plan” means a Plan that is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which a Credit Party, any Subsidiary or any ERISA Affiliate contributes, or is accruing an obligation to make, or has accrued an obligation to make contributions within the preceding 5 years.

 

Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Net Debt as of such date to (b) Consolidated EBITDA for the most recently completed Test Period; provided that (i) for purposes of determining compliance with Article IX for the first 4 Test Periods ended on or after the Initial Certain Funds Funding Date and (ii) when determining the Net Leverage Ratio for any other purpose under this Agreement (other than for purposes of determining compliance with Article IX for each Test Period ended after the first 4 Test Periods following the Initial Certain Funds Funding Date), Consolidated EBITDA shall be calculated for the most recently completed four Fiscal Quarter period for which financial statements are internally available.

 

Net Recovery Proceeds” means, with respect to any Recovery Event, the aggregate cash payments received by Company or any Subsidiary from such Recovery Event minus (a) the costs and expenses incurred in connection therewith, including in connection with the sale of assets subject to such Recovery Event (or, if such costs or expenses have not yet then been incurred or invoiced, such Person’s good faith estimates thereof), (b) the payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than Indebtedness owed hereunder) required to be repaid as a result of such Recovery Event, (c) any provision for Taxes in respect thereof (including any Taxes imposed as a result of the repatriation of any such net proceeds) made, reasonably estimated to be payable or held in reserve in accordance with GAAP or other applicable accounting rules, (d) the amount of any reasonable reserves established by Company or any Subsidiary of Company to fund purchase price adjustment, contingent liabilities and fixed indemnification payments reasonably estimated to be payable; provided that any amount by which such reserves are reduced for reasons other than payment of any such purchase price adjustment, contingent liabilities or indemnification payments shall be considered “Net Recovery Proceeds” upon such reduction, (e) any liabilities associated with such asset or assets and retained by Company or any of its Subsidiaries after such Recovery Event, including pension and other post-employment benefit liabilities and liabilities related to Environmental Claims or against any indemnification obligations associated with the transaction, (f) all distributions and other payments required to be made to minority interest holders in Subsidiaries, Unrestricted Entities or joint ventures as a result of such Recovery Event, or to any other Person (other than Company or any of its Subsidiaries) owning a beneficial interest in the assets subject to such Recovery Event, and (g) in the case of a Recovery Event under clause (ii) of such definition, the costs and expenses of putting any affected property in a safe and secure position. Any proceeds received in a currency other than Dollars shall, for purposes of the calculation of the amount of Net Recovery Proceeds, be in an amount equal to

 

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the Dollar Equivalent thereof as of the date of receipt thereof by Company or any Subsidiary of Company.

 

Net Sale Proceeds” means, with respect to any Asset Disposition (including any Aerospace Asset Disposition) the aggregate cash payments received by Company or any Subsidiary from such Asset Disposition (including, without limitation, cash received by way of deferred payment pursuant to a note receivable, conversion of non-cash consideration, cash payments in respect of purchase price adjustments or otherwise, but only as and when such cash is actually received) minus (a) the costs and expenses incurred in connection therewith (or, if such costs or expenses have not yet then been incurred or invoiced, such Person’s good faith estimates thereof), (b) the payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than Indebtedness owed hereunder) required to be repaid as a result of such Asset Disposition, (c) any provision for Taxes in respect thereof (including any Taxes imposed as a result of the repatriation of any such net proceeds) made, reasonably estimated to be payable or held in reserve in accordance with GAAP or other applicable accounting rules, (d) the amount of any reasonable reserves established by Company or any Subsidiary of Company to fund purchase price adjustment, contingent liabilities and fixed indemnification payments reasonably estimated to be payable; provided that any amount by which such reserves are reduced for reasons other than payment of any such purchase price adjustment, contingent liabilities or indemnification payments shall be considered “Net Sale Proceeds” upon such reduction, (e) in the case of proceeds arising out of the sublease or sublicense of any property, amounts required to be paid in respect of the lease or license of such property, (f) any liabilities associated with such asset or assets and retained by Company or any of its Subsidiaries after such Asset Disposition, including pension and other post-employment benefit liabilities and liabilities related to Environmental Claims or against any indemnification obligations associated with the transaction, and (g) all distributions and other payments required to be made to minority interest holders in Subsidiaries, Unrestricted Entities or joint ventures as a result of such Asset Disposition, or to any other Person (other than Company or any of its Subsidiaries) owning a beneficial interest in the assets disposed of in such Asset Disposition. Any proceeds received in a currency other than Dollars shall, for purposes of the calculation of the amount of Net Sale Proceeds, be in an amount equal to the Dollar Equivalent thereof as of the date of receipt thereof by Company or any Subsidiary of Company.

 

Netherlands” or “the Netherlands” means the European territory of the Kingdom of the Netherlands.

 

Netherlands Borrower” means a Netherlands Credit Party acting as Borrower.

 

Netherlands Credit Party” means (a) Ball Europe and (b) any other Person incorporated or established in the Netherlands (i) that is or becomes an Other Subsidiary Borrower or (ii) grants security in respect of any Capital Stock owned by it in a Borrower or a Material Subsidiary in accordance with Section 7.12 or Section 7.14, in the case of clauses (a) and (b), solely to the extent that such Person remains an Other Subsidiary Borrower or continues to grant security in respect of Capital Stock in accordance with the terms of this Agreement.

 

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Netherlands Insolvency Proceeding” means , in relation to a Netherlands Credit Party or any of its assets, any corporate action, legal proceedings or other legal procedure or step in relation to bankruptcy (faillissement), suspension of payments (surseance van betaling), administration (onderbewindstelling), dissolution (ontbinding), a notice begin filed under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990).

 

Netherlands Law” means the law directly applicable in the Netherlands.

 

New Lender” means any Person that becomes a Lender with respect to (a) a tranche of Additional Facilities pursuant to Section 2.9, (b) a tranche of Replacement Revolving Loans and Replacement Revolving Commitments pursuant to Section 2.12, or (c) a tranche of Replacement Term Loans pursuant to Section 2.13.

 

New Maturity Date” has the meaning assigned to that term in Section 2.14(a).

 

Non-Defaulting Lender” means each Lender which is not a Defaulting Lender.

 

Note” means a Multicurrency Revolving Note, a Swing Line Note or a Term Note, as the context may require.

 

Notice Address” means the office of the Administrative Agent located at 60 Wall Street, New York, NY 10005, Attn: Peter Cucchiara, or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

 

Notice of Borrowing” has the meaning assigned to that term in Section 2.5.

 

Notice of Conversion or Continuation” has the meaning assigned to that term in Section 2.6.

 

Notice of Issuance” has the meaning assigned to that term in Section 2.10(c).

 

Obligations” means all liabilities and obligations of Company and the other Credit Parties now or hereafter arising under this Agreement and all of the other Loan Documents, and of Company and any of its Subsidiaries now or hereafter arising under any Swap Contract entered into with a Person that is a Lender or an Affiliate of a Lender, whether for principal, interest, fees, expenses, indemnities or otherwise, and whether primary, secondary, direct, indirect, contingent, fixed or otherwise (including obligations of performance); provided that (i) the Obligations of Company and its Subsidiaries under any Swap Contract entered into with a Person that is a Lender or an Affiliate of a Lender will be secured and guaranteed pursuant to the Loan Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and such Person remains a Lender or an Affiliate of a Lender; and (ii) any release of Collateral or Guarantors effected in a manner permitted by this Agreement or any other Loan Document will not require the consent of any Lender or any Affiliate of a Lender in its capacity as a counterparty under any Swap Contract.

 

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OFAC” means the Office of Foreign Assets Control, Department of Treasury.

 

Offer” means a public offer by, or made on behalf of, Purchaser in accordance with the City Code and the provisions of the Companies Act for Purchaser to acquire all of the Target Shares not owned, held or agreed to be acquired by Purchaser.

 

Offer Document” means an offer document dispatched to shareholders of the Target setting out in full the terms and conditions of an Offer.

 

Organizational Documents” means, with respect to any Person, such Person’s articles or certificate of incorporation, certificate of amalgamation, memorandum or articles of association, by-laws, partnership agreement, limited liability company agreement, joint venture agreement or other similar governing documents.

 

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 Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

Other Pledge Agreement” means, subject to the Agreed Guaranty and Security Principles, Section 7.14 and Section 12.22, and to the extent required by Section 7.12, each pledge agreement (as each may be amended, restated, supplemented or otherwise modified from time to time) granting the Collateral Agent a security interest or its equivalent under relevant Requirements of Law in each applicable jurisdiction (other than the United States or any state thereof or the District of Columbia) in and to the Capital Stock owned by the parent (if a Wholly-Owned Subsidiary of Company and not an Excluded Subsidiary) of a Wholly-Owned Foreign Subsidiary of Company (other than an Excluded Subsidiary) that is an Other Subsidiary Borrower or a Material Subsidiary; provided that neither Company nor any Domestic Subsidiary of Company (individually or in combination) shall pledge more than 65% of the stock of any Foreign Subsidiary (or more than 65% of the total combined voting power of all classes of stock of such Foreign Subsidiary entitled to vote) in respect of any Obligation of a U.S. Credit Party.

 

Other Subsidiary Borrower” means each Subsidiary that is a Borrower under the Multicurrency Revolving Facility and listed as an Other Subsidiary Borrower on Schedule 1.1(d) as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with Section 2.15 or otherwise in accordance with the terms of this Agreement; provided that each Person that becomes an Other Subsidiary Borrower after the Closing Date must be organized in a jurisdiction as to which all Multicurrency Revolving Lenders have confirmed to the Administrative Agent their ability and willingness to make Loans into such jurisdiction; provided further, that no such Lender confirmation shall be required with respect to any new Other Subsidiary Borrower organized in a jurisdiction (x) in which any Borrower was organized on the Closing Date or (y) in which any Other Subsidiary Borrower is organized.

 

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Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.6(f)).

 

Outstanding Letters of Credit” has the meaning assigned to that term in Section 2.10(j).

 

Overnight Euro Rate” on any date means the offered quotation to first-class banks in the London interbank market by European Swing Line Lender for Euro overnight deposits of amounts in immediately available funds comparable to the outstanding principal amount of the Euro Swing Line Loan of European Swing Line Lender as of 11:00 a.m. (London time) on such date; provided that in the event the Administrative Agent has made any determination pursuant to Section 3.6 in respect of European Swing Line Loans denominated in Euros, or in the circumstances described in Section 3.6 in respect of European Swing Line Loans denominated in Euros, the Overnight Euro Rate determined pursuant to this definition shall instead be the rate determined by European Swing Line Lender as the all-in-Cost of Funds for European Swing Line Lender to fund such Euro Swing Line Loan in each case, plus the Applicable Eurocurrency Margin for Multicurrency Revolving Loans.

 

Overnight LIBOR Rate” on any date means the offered quotation to first-class banks in the London interbank market by European Swing Line Lender for Sterling overnight deposits of amounts in immediately available funds comparable to the outstanding principal amount of the European Swing Line Loan denominated in Sterling of European Swing Line Lender as of 11:00 a.m. (London time) on such date; provided that in the event the Administrative Agent has made any determination pursuant to Section 3.6 in respect of European Swing Line Loans denominated in Sterling, or in the circumstances described in Section 3.6 in respect of European Swing Line Loan, the Overnight LIBOR Rate determined pursuant to this definition shall instead be the rate determined by European Swing Line Lender as the all-in-Cost of Funds for European Swing Line Lender to fund such European Swing Line Loan, in each case, plus the Applicable Eurocurrency Margin for Multicurrency Revolving Loans.

 

Overnight Rate Loan” means each European Swing Line Loan which bears interest at a rate determined with reference to the Overnight Euro Rate or the Overnight LIBOR Rate, as applicable, based on the Alternative Currency borrowed.

 

Parallel Debt” has the meaning assigned to that term in Section 11.12.

 

Participant Register” has the meaning assigned to that term in Section 12.8(b).

 

Participants” has the meaning assigned to that term in Section 12.8(b).

 

Participating Member State” means each state so described in any EMU Legislation.

 

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Participating Subsidiary” means any Subsidiary of Company or any other entity formed as necessary or customary under the laws of the relevant jurisdiction that is a participant in a Permitted Accounts Receivable Securitization.

 

Patriot Act” has the meaning assigned to that term in Section 6.21(c).

 

PBGC” means the Pension Benefit Guaranty Corporation created by Section 4002(a) of ERISA.

 

Permitted Accounts Receivable Securitization” means any receivables financing program providing for the sale, conveyance or contribution to capital of Receivables Facility Assets or interests therein by Company and its Participating Subsidiaries to a Receivables Subsidiary in transactions purporting to be sales, which Receivables Subsidiary shall finance the purchase of such Receivables Facility Assets by the direct or indirect sale, transfer, conveyance, lien, grant of participation or other interest or pledge of such Receivables Facility Assets or interests therein to one or more limited purpose financing companies, special purpose entities, trusts and/or financial institutions, in each case, on a limited recourse basis as to Company and the Participating Subsidiaries (except to the extent a limitation on recourse is not customary for similar transactions or is prohibited in the relevant jurisdiction); provided that any such transaction shall be consummated pursuant to documentation necessary or customary for such transactions in the relevant jurisdiction (or otherwise reasonably satisfactory to the Administrative Agent as evidenced by its written approval thereof).

 

Permitted Acquisition” means (x) the Target Acquisition and (y) subject to Section 1.5, any Acquisition by Company or a Subsidiary of Company if, solely in the case of this clause (y), all of the following conditions are met on the date such Acquisition is consummated:

 

(a)                       on the date of execution of the definitive agreement in respect of such Acquisition, immediately after giving effect thereto on a Pro Forma Basis, no Event of Default under Sections 10.1(a), (e) or (f) shall have occurred and be continuing or would result therefrom;

 

(b)                       in the case of any acquisition of Capital Stock of a Person, such acquisition shall have been approved by the board of directors or comparable governing body of such Person;

 

(c)                        all transactions related thereto are consummated in compliance, in all material respects, with applicable Requirements of Law;

 

(d)                       all actions, if any, required to be taken under Section 7.12 or Section 7.14 (subject to any grace periods set forth therein) on or prior to such date with respect to any newly formed Subsidiary or Person that becomes a Subsidiary as a result of such Permitted Acquisition (other than an Excluded Subsidiary) and its property shall have been taken; and

 

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(e)                        if the aggregate amount of Investments consisting of such acquisition by Credit Parties in assets that are not (or do not become) owned by a Credit Party or in Capital Stock of Persons that do not become Credit Parties is $250,000,000 or greater (excluding the maximum value of earn out obligations, if any) then:

 

(i)             immediately after giving effect thereto, there is at least $150,000,000 of Available Liquidity; and

 

(ii)          on or before the date of the consummation of such acquisition, Company delivers to the Administrative Agent:

 

(1)                     financial statements of the business or Person to be acquired, including, to the extent available, income statements or statements of cash flows and balance sheet statements for at least the fiscal year or the four fiscal quarters then most recently completed (or such shorter period of time as such Person has been in existence); and

 

(2)                     pro forma financial statements supporting the calculation required by clause (i) hereof, if applicable, certified on behalf of Company by the Chief Financial Officer or Treasurer of Company to his or her knowledge.

 

Permitted Aerospace JV” means a Person (together with its Subsidiaries, if any) organized by Company or Ball Aerospace and one or more third parties for the purpose, among other things, of conducting the Aerospace Business regardless of whether such Person is a subsidiary, a joint venture or a minority-owned Person; provided that (i) such Person shall not be a Controlled Subsidiary and (ii) to the extent the assets (net of cash proceeds) transferred by Company and its Subsidiaries to such Permitted Aerospace JV were more than 8% of Company’s Consolidated Assets as of the end of the most recently completed Fiscal Year of Company for which audited financial statements are available or the business transferred by Company and its Subsidiaries to such Permitted Aerospace JV accounted for more than 7% of Company’s consolidated total revenues for such period, subject to the Agreed Guaranty and Security Principles and Section 12.22, all of the Capital Stock of such Person owned by Company and its Subsidiaries shall, within 60 days after the date of such transfer (or within such longer period of time that the Collateral Agent may agree in its sole discretion), in the case such Person is a Domestic Subsidiary, and 120 days after the date of such transfer (or within such longer period of time that the Collateral Agent may agree in its sole discretion), in the case such Person is a first-tier Foreign Subsidiary, be pledged as collateral to the Collateral Agent for the benefit of the Secured Creditors.

 

Permitted Asset Disposition” means any sale, lease, transfer, conveyance or other disposition (or series of related sales, leases, transfers or dispositions) of all or any part of (i) an interest in shares of Capital Stock of a Subsidiary of Company, (ii) any interest in any joint venture to which Company or any Subsidiary is a party, or (iii) any other assets (each of (i), (ii) or (iii) referred to for purposes of this definition as a “disposition”) by Company or any of its Subsidiaries, so long as, after giving effect to such sale, lease, transfer, conveyance or other

 

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disposition (or series of related sales, leases, transfers or dispositions), Company shall be in compliance with the financial covenant set forth in Article IX (calculated on a Pro Forma Basis) as of the end of the most recent Test Period.

 

Permitted Call Spread Transaction” means any Permitted Convertible Bond Hedge and any Permitted Warrant entered into on customary market terms and conditions.

 

Permitted Convertible Bond Hedge” means any call, call spread or capped call option (or substantively equivalent derivative transaction) on or by reference to Company’s Common Stock purchased by Company from an unaffiliated third party in an arm’s-length dealing in connection with its convertible debt securities or convertible Qualified Capital Stock.

 

Permitted Debt Documents” means, collectively, the Senior Note Documents and any other documents evidencing, guaranteeing or otherwise governing Permitted Refinancing Indebtedness in respect thereof.

 

Permitted Guarantee Obligations” means (i) Guarantee Obligations of any Credit Party with respect to Indebtedness permitted under Section 8.2 (other than clauses (b)(i), (g) (unless such Person becomes a Credit Party as a result of such Permitted Acquisition) and (v) of such Section) of any other Credit Party; provided that to the extent that such Indebtedness is subordinated to the Obligations, such Guarantee Obligations shall also be subordinated to the Obligations on similar subordination terms or otherwise on terms reasonably acceptable to the Administrative Agent, (ii) Guarantee Obligations of any Subsidiary that is not a Credit Party with respect to Indebtedness permitted under Section 8.2 of Company or any Subsidiary (except that a Subsidiary that is not a Credit Party may not, by virtue of this clause (ii), guarantee Indebtedness that such Subsidiary could not otherwise incur under Section 8.2), (iii) Guarantee Obligations with respect to surety, appeal, performance bonds and similar bonds or statutory obligations incurred by Company or any of its Subsidiaries in the ordinary course of business, (iv) Guarantee Obligations of Company and any of its Subsidiaries with respect to Indebtedness permitted under Sections 8.2(b)(ii), (g) (solely in the case of Indebtedness of the type that would be permitted under Section 8.2(b)(ii)) and (v); provided that in each case, such Guarantee Obligations shall rank no higher than pari passu in right of payment with the Obligations, and (vi) additional Guarantee Obligations which (other than Guarantee Obligations of Indebtedness permitted under Section 8.2(b)(i)) do not exceed the Dollar Equivalent of $350,000,000 in the aggregate at any time.

 

Permitted Liens” has the meaning assigned to that term in Section 8.1.

 

Permitted Real Property Encumbrances” means (i) as to any particular real property at any time, such easements, encroachments, covenants, conditions, restrictions, reservations, rights of way, subdivisions, parcelizations, licenses, minor defects, irregularities, encumbrances on title (including leasehold title) or other similar charges or encumbrances which do not materially detract from the value of such real property for the purpose for which it is held by the owner thereof, (ii) municipal and zoning ordinances and other land use or environmental regulations or restrictions, which are not violated in any material respect by the existing improvements and the present use made by the owner thereof of the premises, (iii) general real

 

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estate Taxes and assessments not yet due or as to which the grace period has not yet expired (not to exceed 30 days) or the amount or validity of which are being contested in good faith by appropriate proceedings diligently pursued, if adequate provision for the payment of such Taxes has been made on the books of such Person to the extent required by GAAP or, in the case of a Foreign Subsidiary, generally accepted accounting principles in effect from time to time in its jurisdiction of organization, (iv) any matters disclosed on any survey, aerial survey, ExpressMap or equivalent photographic depiction delivered by a Borrower to the Administrative Agent, and (v) such other items to which the Administrative Agent may consent in its reasonable discretion.

 

Permitted Refinancing Indebtedness” means a replacement, renewal, refinancing, extension, defeasance, restructuring, or refunding of any Indebtedness by the Person that originally incurred such Indebtedness (or, in the case of Permitted Refinancing Indebtedness of the Senior Notes, by European Holdco, Ball Delaware, a Subsidiary of European Holdco, or Ball Asia Pacific, a Subsidiary of Ball Metal Beverage, solely to the extent that such Permitted Refinancing Indebtedness is permitted pursuant to Section 8.2(c)); provided that:

 

(a)                       the Dollar Equivalent of the principal amount of such Indebtedness plus, in the case of a revolving facility or other undrawn letter of credit or term loan, the unutilized commitments thereunder (as determined as of the date of the incurrence of the Indebtedness in accordance with GAAP) does not exceed the Dollar Equivalent of the principal amount of the aggregate amount of Indebtedness and unutilized commitments refinanced thereby on such date plus all accrued interest and premiums and the amounts of all fees, expenses, penalties (including prepayment penalties) and premiums incurred in connection with such replacement, renewal, refinancing, extension, defeasance, restructuring or refunding;

 

(b)                       the final maturity date of such Indebtedness shall be no earlier than the final maturity date of the Indebtedness being replaced, renewed, refinanced, extended, defeased, restructured, or refunded;

 

(c)                        the Weighted Average Life to Maturity of such Indebtedness is not less than the Weighted Average Life to Maturity of the Indebtedness being replaced, renewed, refinanced, extended, defeased, restructured, or refunded;

 

(d)                       such Indebtedness is not guaranteed by any Credit Party or any Subsidiary of any Credit Party except to the extent such Person guaranteed or was the borrower or issuer of such Indebtedness being replaced, renewed, refinanced, extended, defeased, restructured, or refunded;

 

(e)                        such Indebtedness is not secured by any assets other than those securing or required to secure such Indebtedness on the Closing Date (or, if later, the date such Indebtedness was incurred, assumed or acquired), or in the case of Indebtedness of the Target or any of its Subsidiaries, if the Target Acquisition is consummated by way of a Scheme, on the Scheme Effective Date or if the Target Acquisition is consummated by way of an Offer, the date on which the Offer has become unconditional in all respects and Purchaser has become, directly or indirectly, the legal and beneficial owner of at least 90% of the Voting Securities of the Target; provided that in the case of any Indebtedness that refinances or replaces in part the

 

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Indebtedness under this Agreement, such Indebtedness may be secured by the Capital Stock of any direct or indirect Subsidiary of Company;

 

(f)                         in the case of other such Indebtedness the Dollar Equivalent amount which is in excess of $100,000,000, the covenants, defaults and similar non-economic provisions applicable to such Indebtedness, taken as a whole, are not materially less favorable to the obligor thereon or to the Lenders than the provisions contained in the original documentation for such Indebtedness or in this Agreement and do not contravene in any material respect the provisions of this Agreement and such Indebtedness is at the then prevailing market rates (it being understood and agreed that Company may, at its option, deliver a certificate to the Administrative Agent at least 5 Business Days prior to the incurrence of such Indebtedness certifying that the requirements of this clause (f) have been satisfied, and such certification shall be conclusive evidence that such requirements have been satisfied unless the Administrative Agent provides notice to Company of its objection during such 5 Business Day period (including a reasonable description of the basis upon which it objects)) and notwithstanding the foregoing, the covenants, defaults and similar non-economic provisions applicable to such Indebtedness shall not be deemed to contravene in any material respect the provisions of this Agreement solely because (i) prepayment or repayment of such Indebtedness, in whole or in part, by Company or its Subsidiaries is required pursuant to any “change of control” or “asset sale” prepayment provisions customary for such Indebtedness, (ii) such Indebtedness may be converted into, exchanged for, or which may, in whole or in part, be satisfied by the delivery of Company’s Common Stock upon the occurrence of a conversion or exchange event related to the price of Company’s Common Stock, the trading price of such Indebtedness, a “change of control”, “asset sale” or “fundamental change” or other specified corporate transaction or corporate event or (iii) prepayment or repayment of such Indebtedness, in whole or in part, by Company or its Subsidiaries is required upon the occurrence of any special and/or mandatory redemption event (or similar or equivalent terms) as a result of a specified corporate transaction or corporate event not proceeding because of a failure of condition precedent in relation to such specified corporate transaction or corporate event; and

 

(g)                        in the case of Permitted Refinancing Indebtedness of the Senior Notes, (i) such Indebtedness is not Indebtedness under the Multicurrency Revolving Facility unless Available Liquidity after giving effect to such incurrence would equal at least $250,000,000 and (ii) unless such Indebtedness is Indebtedness under the Loan Documents, the scheduled maturity date shall not be earlier than, nor shall any amortization commence, prior to the date that is 91 days after the latest Term Maturity Date.

 

Permitted Reorganization” means one or more internal reorganizations of Company, any of its Subsidiaries or any of the Unrestricted Entities, to be completed at any time after the Closing Date, substantially in the order of and substantially in compliance with the steps set forth in, and resulting in a corporate structure of the reorganized entities substantially as set forth in, a Permitted Reorganization Disclosure Letter, which reorganization may include, among other things, mergers, asset sales, consolidations, separations of businesses and lines of business, and other divestitures (including antitrust divestitures and other reorganizations in connection therewith in connection with the Target Acquisition), and intercompany transactions involving asset transfers or sales, contributions, Indebtedness or Capital Stock of Company, any of its

 

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Subsidiaries and/or any of the Unrestricted Entities (including mergers or sales of Other Subsidiary Borrowers that are not a Borrower under any Term Facility); provided that, both immediately before and immediately after giving effect to such Permitted Reorganization, and at all times during such Permitted Reorganization, the following conditions shall be satisfied:

 

(a)                       no Event of Default has occurred and is continuing or would result therefrom;

 

(b)                       subject to the Agreed Guaranty and Security Principles and Sections 7.12, 7.14 and 12.22, following the consummation of such Permitted Reorganization, the Collateral that remains in existence and owned by a Credit Party that would otherwise be required to pledge such Collateral pursuant to a Pledge Agreement shall remain subject to (or, in the case of Collateral created or transferred to any such Person as part of any step of such Permitted Reorganization, shall become subject to) a perfected security interest of the Collateral Agent to the extent required by and in accordance with the terms of the Loan Documents (giving due regard to any grace periods provided for herein or therein);

 

(c)                        such Permitted Reorganization shall be completed no later than the close of business on the 45th Business Day (or the date that is 9 months after the Initial Certain Funds Funding Date, in the case of antitrust divestitures in connection with the Target Acquisition and other Permitted Reorganizations completed within 9 months of the Initial Certain Funds Funding Date) after the initiation of the first step of such Permitted Reorganization (or such longer period (y) as may be required by any Governmental Authority or applicable law for a Subsidiary to comply with corporate formalities, local employee consultation requirements or otherwise customary in the jurisdiction of such Subsidiary, as applicable, in order to complete any step of such Permitted Reorganization or (z) as may be agreed to by the Administrative Agent (such agreement not be to unreasonably withheld, conditioned or delayed)), substantially as set forth in the applicable Permitted Reorganization Disclosure Letter;

 

(d)                       immediately after giving effect to such Permitted Reorganization, Company shall continue to be a Borrower under the Multicurrency Revolving Facility, and the Borrower under each Term Facility shall continue to be the Borrower under such Term Facility; and

 

(e)                        such Permitted Reorganization shall be permitted under the Senior Notes and any Permitted Refinancing Indebtedness in respect thereof.

 

Notwithstanding anything to the contrary in any Loan Document, any advance notices or certificates that would be required to be delivered under any Loan Document in connection with or in advance of any transactions contemplated by a Permitted Reorganization shall be deemed to have been delivered within the appropriate time period required under such Loan Document upon delivery to the Administrative Agent of the Permitted Reorganization Disclosure Letter delivered in connection with such Permitted Reorganization.

 

Permitted Reorganization Disclosure Letter” means:

 

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(a)                       that certain letter, originally dated the Closing Date, from Company to the Administrative Agent and the Lenders, which letter (i) attaches as Annex A thereto (x) copies of the most recent organizational structure charts of Company and its Subsidiaries and a copy of Schedule 6.16 (and to the extent of any conflict between such organizational charts and Schedule 6.16, Schedule 6.16 shall govern) and (y) a copy of the most recent organizational structure chart of Target and its Subsidiaries provided to Company by Target prior to the Closing Date, (ii) attaches as Annex B thereto the then current draft of the anticipated final organizational structure chart of Company and its Subsidiaries (including Target and its Subsidiaries) after giving effect to the Permitted Reorganization contemplated by such letter and (iii) attaches as Annex C thereto the then current draft of the anticipated list of Guarantors after giving effect to the Permitted Reorganization contemplated by such letter and any applicable grace periods, and the anticipated list of Collateral after giving effect to such Permitted Reorganization but without regard to the materiality of Target or any of its Subsidiaries at such time, as such letter may be amended, amended and restated, supplemented or otherwise modified from time to time by Company with the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed); provided that Company shall provide the Administrative Agent with notice of, but the consent of the Administrative Agent shall not be required for, any such amendments, amendments and restatements, supplements or other modifications to such letter during the period commencing on the Closing Date and ending on the date that is 9 months (or within such longer period of time that the Administrative Agent may agree in its sole discretion) after the date that the Target Acquisition is completed, unless such amendments, amendments and restatements, supplements or other modifications, would cause the guaranties of the Obligations, or the pledges of the Capital Stock of Subsidiaries, representing in the aggregate more than 25% of Consolidated EBITDA (after giving effect to the Target Acquisition) to be released or to otherwise no longer be required to be provided as described in Annex C (after giving effect to any guaranties or Collateral substituted therefor and any mergers, amalgamations, consolidations, liquidations or dissolutions in connection with such Permitted Reorganization); and

 

(b)                       one or more other letters delivered from time to time by Company to the Administrative Agent and the Lenders, which letter (i) attaches as Annex A thereto slides detailing the then current draft of each step of a Permitted Reorganization (or the then current organizational structure of Company and its Subsidiaries, if Company and the Administrative Agent reasonably agree to an alternative arrangement, which may be by conference call, for providing an overview of such Permitted Reorganization to the Administrative Agent), (ii) attaches as Annex B thereto the then current draft of the anticipated final organizational structure of Company and its Subsidiaries after giving effect to such Permitted Reorganization, and (iii) is in form and substance reasonably satisfactory to the Administrative Agent, as such letter may subsequently be amended, amended and restated, supplemented or otherwise modified from time to time with the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed); provided that Company shall provide the Administrative Agent with notice of, but the consent of the Administrative Agent shall not be required for, any such amendments, amendments and restatements, supplements or other modifications to such letter during the period commencing on the Closing Date and ending on the date that is 9 months (or within such longer period of time that the Administrative Agent may

 

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agree in its sole discretion) after the date that the Target Acquisition is completed, unless such amendments, amendments and restatements, supplements or other modifications, would cause the guaranties of the Obligations, or the pledges of the Capital Stock of Subsidiaries, representing in the aggregate more than 25% of Consolidated EBITDA (after giving effect to the Target Acquisition) to be released or to otherwise no longer be required to be provided as described in Annex C to the Permitted Reorganization Disclosure Letter delivered pursuant to paragraph (a) above (after giving effect to any guaranties or Collateral substituted therefor and any mergers, amalgamations, consolidations, liquidations or dissolutions in connection with such Permitted Reorganization).

 

Permitted Warrant” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) on or with respect to Company’s Common Stock sold by Company to an unaffiliated third party in an arm’s-length dealing substantially concurrently with any purchase by Company of a related Permitted Convertible Bond Hedge.

 

Person” means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind.

 

Plan” means any plan described in Section 4021(a) of ERISA and not excluded pursuant to Section 4021(b) thereof, which is or has, within the preceding 6 years, been established or maintained, or to which contributions are being or have been, within the preceding 6 years, made, by any Credit Party, any Subsidiary or any ERISA Affiliates. For greater certainty, Plan does not include a Foreign Pension Plan.

 

Plan Administrator” has the meaning assigned to the term “administrator” in Section 3(16)(A) of ERISA.

 

Plan Sponsor” has the meaning assigned to the term “plan sponsor” in Section 3(16)(B) of ERISA.

 

Pledge Agreements” means, once executed and delivered to the Collateral Agent, each Other Pledge Agreement and the U.S. Pledge Agreement.

 

Pledged Securities” means all of the Pledged Securities as defined in the respective Pledge Agreements to the extent defined therein and shall include the Capital Stock pledged pursuant to such Pledge Agreements.

 

Pledgor” means, to the extent required pursuant to Section 7.12, Company and each of its Wholly-Owned Subsidiaries that is now or hereafter party to a Pledge Agreement.

 

Premises” means, at any time any real estate then owned, leased or operated by Company or any of its Subsidiaries.

 

Press Release” means the press release made on February 19, 2015 pursuant to Rule 2.7 of the City Code by or on behalf of Purchaser in connection with the Target Acquisition.

 

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Principal Obligations” means the Obligations of any Credit Party (other than the Parallel Debt of such Credit Party).

 

Pro Forma Basis” means, (a) with respect to the preparation of pro forma financial statements for purposes of the tests set forth in the definition of Permitted Acquisition and for any other purpose relating to a Permitted Acquisition, pro forma on the basis that (i) any Indebtedness incurred or assumed in connection with such Acquisition was incurred or assumed on the first day of the applicable period, (ii) if such Indebtedness bears a floating interest rate, such interest shall be paid over the pro forma period at the rate in effect on the date of such Acquisition, and (iii) all income and expense associated with the assets or entity acquired in connection with such Acquisition (other than the fees, costs and expenses associated with the consummation of such Acquisition) for the most recently completed four fiscal quarter period for which such income and expense amounts are available shall be treated as being earned or incurred by Company over the applicable period on a pro forma basis without giving effect to any cost savings other than Pro Forma Cost Savings, (b) with respect to the preparation of a pro forma financial statement for any purpose relating to a Significant Asset Disposition or any other material Asset Disposition as determined in good faith by Company, pro forma on the basis that (i) any Indebtedness prepaid out of the proceeds of such Significant Asset Disposition shall be deemed to have been prepaid as of the first day of the applicable period, and (ii) all income and expense (other than such expenses as Company, in good faith, estimates will not be reduced or eliminated as a consequence of such Significant Asset Disposition) associated with the assets or entity disposed of in connection with such Significant Asset Disposition shall be deemed to have been eliminated as of the first day of the applicable period and (c) with respect to the preparation of pro forma financial statements for any purpose relating to an incurrence of Indebtedness or the payment of any Restricted Payment, pro forma on the basis that (i) any Indebtedness incurred or assumed in connection with such incurrence of Indebtedness or such payment was incurred or assumed on the first day of the applicable period, (ii) if such incurrence of Indebtedness bears a floating interest rate, such interest shall be paid over the pro forma period at the rate in effect on the date of the incurrence of such Indebtedness, and (iii) all income and expense associated with any Permitted Acquisition consummated in connection with the incurrence of Indebtedness (other than the fees, costs and expenses associated with the consummation of such incurrence of Indebtedness) for the most recently completed four fiscal quarter period for which such income and expense amounts are available shall be treated as being earned or incurred by Company over the applicable period on a pro forma basis without giving effect to any cost savings other than Pro Forma Cost Savings.

 

Pro Forma Cost Savings” means for any applicable four fiscal quarter period ending on or prior to the date of the applicable Subject Transaction, whenever pro forma effect is to be given to a Subject Transaction of the type described in clauses (a), (b), (c) and (d) of that definition, the amount of “run-rate” cost savings, product margin synergies (including increased share of shelf), operating expense reductions and product cost (including sourcing), and other operating improvements and synergies resulting from or relating to any such Subject Transaction which is being given pro forma effect that have been realized or are projected in good faith to result (in the good faith determination of Company) from such Subject Transaction (calculated on a pro forma basis by reference to Company’s most recently available internal financial statements as determined by Company in good faith as though such cost savings, product margin

 

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synergies (including increased share of shelf), operating expense reductions and product cost (including sourcing), and other operating improvements and synergies had been realized on the first day of such period and as if such cost savings, product margin synergies (including increased share of shelf), operating expense reductions and product cost (including sourcing), and other operating improvements and synergies were realized during the entirety of such period and “run-rate” means the full recurring projected benefit net of the amount of actual savings or other benefits realized during such period from such actions) and any such adjustments shall be included in the initial pro forma calculations of any financial ratios or tests (and in respect of any subsequent pro forma calculations in which such Subject Transaction is given pro forma effect) and during any applicable subsequent period in which the effects thereof are expected to be realized; provided that (a) such amounts are reasonably identifiable and factually supportable in the good faith judgment of Company, (b) such amounts result from actions taken or actions with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of Company) no later than 24 months after the date of such Subject Transaction, (c) no amounts shall be added pursuant to this clause (c) to the extent duplicative of any amounts that are otherwise added back in computing Consolidated EBITDA (or any other components thereof), whether through a pro forma adjustment or otherwise, with respect to such period, (d) the aggregate amount of any such amounts added back pursuant to this definition (other than in connection with any mergers, business combinations, acquisitions or divestures) shall not exceed, together with any amounts added back pursuant to clauses (xiii) and (xiv) of the definition of Consolidated EBITDA, 30.0% of Consolidated EBITDA in any four-Fiscal Quarter period (calculated after giving effect to any such add-backs and adjustments) and (e) if any calculation of Pro Forma Cost Savings is determined by reference to Company’s internal financial statements, the effect of this provision shall not apply for purposes of calculating any financial ratio or test for purposes of (i) calculating the “Applicable Base Rate Margin”, “Applicable Eurocurrency Margin” and “Applicable Multicurrency Revolving Commitment Fee Percentage”, and (ii) compliance with Article IX (other than for the purpose of determining pro forma compliance with Article IX), all of which calculations shall be based on the financial statements delivered pursuant to Section 7.1(a) or (b), as applicable, for the relevant Test Period (it being understood that such financial ratios, tests and financial statements may otherwise be calculated on a Pro Forma Basis and be adjusted to include the effects of Pro Forma Cost Savings for all other purposes under the Loan Documents, except for (x) any such calculation of the “Applicable Base Rate Margin”, “Applicable Eurocurrency Margin” and “Applicable Multicurrency Revolving Commitment Fee Percentage” or (y) any such determination of actual compliance with Article IX, in the case of clauses (x) and (y), in respect of which only Pro Forma Cost Savings relating to such Subject Transactions that have occurred on or before the end of the applicable Test Period shall be given effect).

 

Pro Rata Share” means, when used with reference to any Lender and any described aggregate or total amount of any Facility or Facilities, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the numerator of which shall be such Lender’s Maximum Commitment with respect to such Facility or Facilities and the denominator of which shall be the Total Commitment with respect to such Facility or Facilities or, if no Commitments are then outstanding under such Facility or Facilities, such

 

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Lender’s aggregate outstanding Loans hereunder with respect to such Facility or Facilities to the total outstanding Loans hereunder with respect to such Facility or Facilities.

 

Projections” has the meaning assigned to that term in Section 6.7.

 

Purchaser” has the meaning assigned to that term in the introduction to this Agreement.

 

Qualified Capital Stock” means any Capital Stock other than Disqualified Capital Stock.

 

Quarterly Payment Date” means the last Business Day of each March, June, September and December of each year.

 

Re-Allocation Agreement” means a Re-Allocation Agreement solely among the Lenders and the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent.

 

Re-Denomination Event” means (i) the occurrence of any Event of Default with respect to any Borrower pursuant to Sections 10.1(a), 10.1(e) or 10.1(f), (ii) the declaration of the termination of any Commitment, or the acceleration of the maturity of any Loans, in each case pursuant to the provisions of Article X hereof or (iii) the failure of any Borrower to pay any principal of, or interest on, any Loans of any Facility or any Unpaid Drawings on the applicable Maturity Date.

 

Receivable(s)” means and includes all of Company’s and its Subsidiaries’ presently existing and hereafter arising or acquired accounts, accounts receivable, and all present and future rights of Company and its Subsidiaries to payment for goods sold or leased or for services rendered, whether or not they have been earned by performance, and all rights in any merchandise or goods which any of the same may represent, and all rights, title, security and guaranties with respect to each of the foregoing, including, without limitation, any right of stoppage in transit.

 

Receivables Documents” means all documentation relating to any receivables financing program providing for the sale of some or all Receivables Facility Assets by Company and its Subsidiaries (whether or not to a Receivables Subsidiary) in transactions purporting to be sales and shall include the documents evidencing any Permitted Accounts Receivable Securitization and any Receivables Factoring Facility.

 

Receivables Facility Assets” means all Receivables (whether now existing or arising in the future) of Company or any of its Subsidiaries, and any assets related thereto, including without limitation (i) all collateral given by the respective account debtor or on its behalf (but not by Company or any of its Subsidiaries) securing such Receivables, (ii) all contracts and all guarantees (but not by Company or any of its Subsidiaries) or other obligations directly related to such Receivables, (iii) other related assets including those set forth in the Receivables Documents, and (iv) proceeds of all of the foregoing.

 

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Receivables Facility Attributable Debt” means at any date of determination thereof in connection with the Receivables Documents, the aggregate Dollar Equivalent of the net outstanding amount theretofore paid, directly or indirectly, by a funding source to a receivables subsidiary (including, without limitation, Company or any Subsidiary in connection with sales permitted pursuant to Section 8.4(d)(ii)) in respect of the Receivables Facility Assets sold, conveyed, contributed or transferred or pledged in connection with such documents (it being the intent of the parties that the amount of Receivables Facility Attributable Debt at any time outstanding approximate as closely as possible the principal amount of Indebtedness which would be outstanding at such time under the Receivables Documents, if the same were structured as a secured lending agreement rather than an agreement providing for the sale, conveyance, contribution to capital, transfer or pledge of such Receivables Facility Assets or interests therein).

 

Receivables Factoring Facility” means a non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) sale of receivables by Company or any of its Subsidiaries directly or indirectly to another Person, including in connection with supply chain financing facilities.

 

Receivables Subsidiary” means a special purpose Wholly-Owned Subsidiary of Company which has been or may be formed for the sole and exclusive purpose of engaging in activities in connection with the purchase, sale and financing of Receivables in connection with and pursuant to a Permitted Accounts Receivable Securitization; provided, however, that if the law of a jurisdiction in which Company proposes to create a Receivables Subsidiary does not provide for the creation of a special purpose entity that is acceptable to Company or requires the formation of one or more additional entities (whether or not Subsidiaries of Company), the Administrative Agent may in its reasonable discretion permit Company to form such other type of entity in such jurisdiction to serve as a Receivables Subsidiary as is necessary or customary for similar transactions in such jurisdiction.

 

Receiving Agent Letter” means, in the case of an Offer, a letter relating to the appointment of a receiving agent in respect of that Offer in form and substance reasonably satisfactory to the Administrative Agent.

 

Recipient” means the Administrative Agent, any Lender, or any Facing Agent, as applicable, other than for the purposes of Section 4.7(h) in which case it has the meaning assigned to that term in Section 4.7(h).

 

Recovery Event” means the receipt by Company (or any of its Subsidiaries) of any insurance or condemnation proceeds payable (i) by reason of any theft, physical destruction or damage or any other similar event with respect to any properties or assets of Company or any of its Subsidiaries, (ii) by reason of any condemnation, taking, seizing or similar event with respect to any properties or assets of Company or any of its Subsidiaries or (iii) under any policy of insurance required to be maintained under Section 7.9; provided, however, that in no event shall payments made under personal injury insurance or business interruption insurance constitute a Recovery Event.

 

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Refinanced Revolving Commitments” has the meaning assigned to that term in Section 2.12.

 

Refinanced Revolving Loans” has the meaning assigned to that term in Section 2.12.

 

Refinanced Term Commitments” has the meaning assigned to that term in Section 2.13.

 

Refinanced Term Loans” has the meaning assigned to that term in Section 2.13.

 

Refunded Swing Line Loans” has the meaning assigned to that term in Section 2.1(f)(ii).

 

Register” has the meaning assigned to that term in Section 12.14.

 

Related Fund” means, with respect to any Lender which is a Fund, any other Fund that is administered or managed by the same investment advisor of such Lender or by an Affiliate of such investment advisor.

 

Release” means any release, spill, emission, leaking, pumping, pouring, emptying, dumping, injection, deposit, disposal, discharge, dispersal, escape, leaching or migration into the environment or from any property of Company or its Subsidiaries, or at any other location, including any location to which Company or any Subsidiary has transported or arranged for the transportation of any Hazardous Material, including the movement of Hazardous Materials through or in the ambient air, soil, surface water or groundwater.

 

Relevant Party” has the meaning assigned to that term in Section 4.7(h).

 

Remedial Action” means actions legally required under applicable Environmental Laws to (i) clean up, remove or treat Hazardous Materials in the environment or (ii) perform pre- response or post-response studies and investigations and post-response monitoring and care or any other studies, reports or investigations relating to Hazardous Materials in the environment.

 

Repatriation Limitation” has the meaning assigned to that term in Section 4.4(f).

 

Replaced Lender” has the meaning assigned to that term in Section 3.7.

 

Replacement Facility” means a Replacement Revolving Facility and/or a Replacement Term Facility, as the context requires.

 

Replacement Lender” has the meaning assigned to that term in Section 3.7.

 

Replacement Revolving Commitments” has the meaning assigned to that term in Section 2.12.

 

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Replacement Revolving Facility” has the meaning assigned to that term in Section 2.12.

 

Replacement Revolving Loans” has the meaning assigned to that term in Section 2.12.

 

Replacement Term Commitments” has the meaning assigned to that term in Section 2.13.

 

Replacement Term Facility” has the meaning assigned to that term in Section 2.13.

 

Replacement Term Loans” has the meaning assigned to that term in Section 2.13.

 

Replacement Target Note Financing” means the issuance of new senior unsecured notes in a “144A” or other private placement or registered offering, the proceeds of which pay all or a portion of the redemption price of the Existing Target Notes and/or all of the Loans which were used to pay all or a portion of the redemption price of the Existing Target Notes.

 

Reportable Event” means a “reportable event” described in Section 4043(c) of ERISA or in the regulations thereunder with respect to a Plan, excluding any event for which the 30 day notice requirement has been waived.

 

Representatives” has the meaning assigned to that term in Section 12.18(b).

 

Required Lenders” means Non-Defaulting Lenders the sum of whose Effective Amount of Term Exposure and Multicurrency Revolving Commitments (or, if after the Total Multicurrency Revolving Commitment has been terminated, outstanding Multicurrency Revolving Loans and Multicurrency Revolver Pro Rata Share of outstanding Swing Line Loans and LC Obligations, as applicable), constitute greater than 50% of the sum of (i) the total Effective Amount of Term Exposure of Non-Defaulting Lenders and (ii) the Total Multicurrency Revolving Commitment less the aggregate Multicurrency Revolving Commitments of Defaulting Lenders (or, if after the Total Multicurrency Revolving Commitment has been terminated, the total Effective Amount of outstanding Multicurrency Revolving Loans of Non-Defaulting Lenders and the aggregate Multicurrency Revolver Pro Rata Share of all Non-Defaulting Lenders of the total outstanding Swing Line Loans and LC Obligations at such time).

 

Requirement of Law” means, as to any Person, any law, treaty, rule or regulation or judgment, decree, determination or award of an arbitrator or a court or other Governmental Authority, including without limitation, any Environmental Law, in each case imposing a legal obligation or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

Reset Date” has the meaning assigned to that term in Section 1.3.

 

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Responsible Officer” means any of the Chairman or Vice Chairman of the Board of Directors, the President, any Executive Vice President, any Senior Vice President, the Chief Financial Officer, any Vice President or the Treasurer of Company or, if applicable, any Subsidiary  (including with respect to (i) any Luxembourg Credit Party any authorized signatory appointed by the board of managers (conseil de gérance), by the sole manager or by the board of directors (conseil d’administration) of the relevant Luxembourg Credit Party and (ii) any Netherlands Credit Party authorised member(s) of the board of the relevant Netherlands Credit Party).

 

Restricted Investment” means any Investment other than an Investment permitted by Section 8.7 (other than clause (j) thereof).

 

Restricted Lender” has the meaning assigned to that term in Section 1.8.

 

Restricted Party” means a Person that is:

 

(i)                                     listed on, or owned (meaning 50% or greater ownership interest) or controlled by one or more persons listed on any Sanctions List;

 

(ii)                                  located in, incorporated under the laws of, or owned (meaning 50% or greater ownership interest) or controlled by one or more persons located in or organized under the laws of, a country that is the target of comprehensive country-wide or territory wide Sanctions Laws and Regulations (currently the Crimea Region of Ukraine, Iran, Cuba, Sudan, Syria, and North Korea); or

 

(iii)                               otherwise a target of Sanctions Laws and Regulations (“target of Sanctions Laws and Regulations” signifying a person with whom a U.S. Person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).

 

Restricted Payment” has the meaning assigned to that term in Section 8.5.

 

Returns” has the meaning assigned to that term in Section 6.9.

 

Revolver Sublimit” means, when used in reference to Company, the Total Multicurrency Revolving Commitment and when used in reference to any Other Subsidiary Borrower, the maximum aggregate Effective Amount of outstanding Multicurrency Revolving Loans, LC Obligations and Swing Line Loans permitted to be borrowed by such Other Subsidiary Borrower under the Multicurrency Revolving Facility, which amount is set forth on Schedule 1.1(c) attached hereto, as the same may be amended, restated, supplemented or otherwise modified pursuant to Section 2.15 or otherwise in accordance with the terms of this Agreement.

 

Revolver Termination Date” means (a) with respect to the Multicurrency Revolving Facility, the earliest to occur of (i) March 18, 2021 (or such later termination date for such Facility to the extent extended or replaced as permitted by Section 2.12 or  Section 2.14) or (ii) such earlier date as the Multicurrency Revolving Commitments shall have been terminated or

 

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otherwise reduced to $0 in accordance with the terms of this Agreement and (b) with respect to any other Revolving Facility, the earliest to occur of (i) the scheduled maturity date for such Revolving Facility under this Agreement (or such later termination date for such Facility to the extent extended or replaced as permitted by Section 2.12 or  Section 2.14) or (ii) such earlier date as the Commitments in respect of such Revolving Facility shall have been terminated or otherwise reduced to $0 in accordance with the terms of this Agreement.

 

Revolving Facility” means the Multicurrency Revolving Facility, any Additional Revolving Facility, any Replacement Revolving Facility and/or any Extended Revolving Facility, as the context requires.

 

S&P” means Standard & Poor’s Ratings Services, or any successor to the rating agency business thereof.

 

Sale and Leaseback Transaction” means any arrangement, directly or indirectly, whereby a seller or transferor shall sell or otherwise transfer any real or personal property and then or thereafter lease, or repurchase under an extended purchase contract, conditional sale or other title retention agreement, the same or similar property.

 

Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be reasonably determined by the Administrative Agent or Facing Agent, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.

 

Sanctions Laws and Regulations” means the economic sanctions laws, regulations or restrictive measures administered, enacted, or enforced by: (i) the United States government, including but not limited to, the Executive Order, the Patriot Act, the U.S. International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.), the U.S. Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. United Nations Participation Act, the U.S. Syria Accountability and Lebanese Sovereignty Act, the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 or the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012, the Iran Freedom and Counter-Proliferation Act of 2012, the Iran Threat Reduction and Syria Human Rights Act of 2012, the Support for the Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine Act of 2014, the Ukraine Freedom Support Act of 2014, all as amended, any of the foreign assets control regulations (including but not limited to 31 C.F.R., Subtitle B, Chapter V, as amended), or the U.S. Export Administration Act, the U.S. Export Administration Regulations, or the International Traffic in Arms Regulations; (ii) the United Nations; (iii) the European Union; (iv) any member state of the European Union; (v) the United Kingdom; or (vi) the respective governmental institutions and agencies of any of the foregoing, including without limitation, OFAC, the United States Department of State, her Majesty’s Treasury (“HMT”) or the United Nations Security Council (together the “Sanctions Authorities”).

 

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Sanctions List” means the Annex to the Executive Order, the Specially Designated Nationals and Blocked Persons List, EO 13599 List, and Foreign Sanctions Evaders List maintained by OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by HMT, or any similar list maintained by, or public announcement of Sanctions Laws and Regulations designation made by, any of the Sanctions Authorities.

 

Scheduled EUR Term A Repayments” means, with respect to the principal payments on the EUR Term A Loans for each date set forth below, the Euro amount set forth opposite thereto, as reduced from time to time pursuant to Article IV.

 

Date

 

Scheduled EUR
Term A Repayment

 

On the last Business Day of each of the first eight full Fiscal Quarters occurring after the end of the Certain Funds Period

 

13,750,000

 

On the last Business Day of each of the first eight full Fiscal Quarters occurring after the second anniversary of the end of the Certain Funds Period

 

41,250,000

 

EUR Term A Loan Maturity Date

 

Aggregate principal amount of all EUR Term A Loans outstanding on such date

 

 

Scheduled Term Repayments” means, for any Term Facility, the scheduled principal repayments set forth in the definition of “Scheduled USD Term A Repayments”, or “Scheduled EUR Term A Repayments”, as applicable to such Term Facility.

 

Scheduled USD Term A Repayments” means, with respect to the principal payments on the USD Term A Loans for each date set forth below, the Dollar amount set forth opposite thereto, as reduced from time to time pursuant to Article IV:

 

Date

 

Scheduled USD
Term A Repayment

 

On the last Business Day of each of the first eight full Fiscal Quarters occurring after the end of the Certain Funds Period

 

$

17,500,000

 

On the last Business Day of each of the first eight full Fiscal Quarters occurring after the second anniversary of the end of the Certain Funds Period

 

$

52,500,000

 

USD Term A Loan Maturity Date

 

Aggregate principal amount of all USD Term A Loans outstanding on such date

 

 

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Scheme” means a scheme of arrangement effected pursuant to Part 26 of the Companies Act under which the Target Shares will be cancelled (or transferred) and Purchaser will become the holder of new shares issued in place of such cancelled Target Shares (or, as the case may be, the holder of such transferred Target Shares).

 

Scheme Circular” means a circular dispatched by the Target to holders of the Target Shares setting out in full the terms and conditions of a Scheme and convening a General Meeting and a Court Meeting, as such document may be amended from time to time in accordance with the City Code and/or the requirements of the Takeover Panel and, in each case, in accordance with Section 8.15.

 

Scheme Effective Date” means the date on which a copy of the court order sanctioning the Scheme is duly filed on behalf of the Target with the Registrar of Companies in accordance with Section 899 of the Companies Act.

 

SEC” means the Securities and Exchange Commission or any successor thereto.

 

Secured Creditors” has the meaning provided in the respective Security Documents to the extent defined therein and shall include any Person who is granted a security interest pursuant to any Security Document.

 

Secured Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Net Debt as of such date that is then secured by Liens on property or assets of Company and its Subsidiaries to (b) Consolidated EBITDA for the most recently completed four Fiscal Quarter period for which financial statements are internally available.

 

Secured Parties” has the meaning assigned to that term in Section 11.12.

 

Securities” means any stock, shares, voting trust certificates, bonds, debentures, options, warrants, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.

 

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Security Documents” means each Other Pledge Agreement, the U.S. Pledge Agreement and the Additional Security Documents, as each may at any time be amended, supplemented, restated or otherwise modified and in effect.

 

Senior Managing Agents” means the Persons listed on Schedule 1.1(k).

 

Senior Note (2020) Indenture” means that certain Indenture dated as of March 27, 2006, between Company and The Bank of New York Mellon Trust Company, N.A. (f/k/a) The Bank of New York Trust Company, N.A., as trustee, as supplemented by that certain fourth supplemental indenture, dated as of March 22, 2010, among Company, the Subsidiaries of Company party thereto and the trustee, as further amended, supplemented, restated or otherwise modified in accordance with the terms hereof.

 

Senior Note (2021) Indenture” means that certain Indenture dated as of March 27, 2006, between Company and The Bank of New York Mellon Trust Company, N.A. (f/k/a) The Bank of New York Trust Company, N.A., as trustee, as supplemented by that certain fifth supplemental indenture, dated as of November 18, 2010, among Company, the Subsidiaries of Company party thereto and the trustee, as further amended, supplemented, restated or otherwise modified in accordance with the terms hereof.

 

Senior Note (2022) Documents” means the Senior Notes (2022), the Senior Note (2022) Indenture and all other documents evidencing, guaranteeing or otherwise governing the terms of the Senior Notes (2022).

 

Senior Note (2022) Indenture” means that certain Indenture dated as of March 27, 2006, between Company and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), as trustee, as supplemented by that certain seventh supplemental indenture, dated as of March 9, 2012, among Company, the Subsidiaries of Company party thereto and the trustee, as further amended, supplemented, restated or otherwise modified in accordance with the terms thereof.

 

Senior Note (2023) Documents” means the Senior Notes (2023), the Senior Note (2023) Indenture and all other documents evidencing, guaranteeing or otherwise governing the terms of the Senior Notes (2023).

 

Senior Note (2023) Indenture” means that certain Indenture dated as of March 27, 2006, between Company and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), as trustee, as supplemented by that certain eighth supplemental indenture, dated as of May 16, 2013, among Company, the Subsidiaries of Company party thereto and the trustee, as further amended, supplemented, restated or otherwise modified in accordance with the terms thereof.

 

Senior Note (2025) Documents” means the Senior Notes (2025), the Senior Note (2025) Indenture and all other documents evidencing, guaranteeing or otherwise governing the terms of the Senior Notes (2025).

 

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Senior Note (2025) Indenture” means that certain Indenture dated as of March 27, 2006, between Company and The Bank of New York Mellon Trust Company, N.A. (f/k/a The Bank of New York Trust Company, N.A.), as trustee, as supplemented by that certain tenth supplemental indenture, dated as of June 25, 2015, among Company, the Subsidiaries of Company party thereto and the trustee, as further amended, supplemented, restated or otherwise modified in accordance with the terms thereof.

 

Senior Note Documents” means, collectively, the Senior Note (2022) Documents, the Senior Note (2023) Documents, the Senior Note (2025) Documents, and the Senior Note Documents (Target Acquisition).

 

Senior Note Documents (Target Acquisition)” means, collectively, the Dollar Senior Note (2020) Documents, the Euro Senior Note (2020) Documents and the Euro Senior Note (2023) Documents.

 

Senior Note Indentures” means, collectively, the Senior Note (2022) Indenture, the Senior Note (2023) Indenture, the Senior Note (2025) Indenture, and the Senior Note Indentures (Target Acquisition).

 

Senior Note Indentures (Target Acquisition)” means, collectively, the Dollar Senior Note (2020) Indenture, the Euro Senior Note (2020) Indenture and the Euro Senior Note (2023) Indenture.

 

Senior Notes” means, collectively, the Senior Notes (2022), the Senior Notes (2023), the Senior Notes (2025), and the Senior Notes (Target Acquisition).

 

Senior Notes (2020)” has the meaning assigned to that term in the definition of Designated Existing Notes.

 

Senior Notes (2021)” has the meaning assigned to that term in the definition of Designated Existing Notes.

 

Senior Notes (2022)” means those certain 5% Senior Notes due March 15, 2022, issued by Company in the aggregate principal amount of $750 million pursuant to the Senior Note (2022) Indenture, which term shall include and shall constitute the notes issued in exchange therefor as contemplated by the Senior Note (2022) Indenture.

 

Senior Notes (2023)” means those certain 4% Senior Notes due November 15, 2023, issued by Company in the aggregate principal amount of $1 billion pursuant to the Senior Note (2023) Indenture, which term shall include and shall constitute the notes issued in exchange therefor as contemplated by the Senior Notes (2023) Indenture.

 

Senior Notes (2025)” means those certain 5.25% Senior Notes due July 1, 2025, issued by Company in the aggregate principal amount of $1 billion pursuant to the Senior Note (2025) Indenture, which term shall include and shall constitute the notes issued in exchange therefor as contemplated by the Senior Notes (2025) Indenture.

 

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Senior Notes (Target Acquisition)” means, collectively, the Dollar Senior Notes (2020), the Euro Senior Notes (2020) and the Euro Senior Notes (2023).

 

Shareholder Rights Agreement” means the Rights Agreement, dated as of July 26, 2006, between Company and Computershare Investor Services, LLC, as rights agent, pursuant to which holders of Company’s Common Stock receive contingent rights to purchase a fractional share of Series A Junior Participating Preferred Stock (as defined therein) and to acquire additional shares of Common Stock, and any successor or replacement shareholder rights agreement adopted by the Board of Directors of Company.

 

Significant Asset Disposition” means an Asset Disposition that results in a Material Subsidiary ceasing to be a Subsidiary of Company or any Asset Disposition of a business unit, line of business or division of Company and its Subsidiaries.

 

Spot Rate” for a currency means the rate determined by the Administrative Agent or Facing Agent, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date 2 Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or Facing Agent may obtain such spot rate from another financial institution designated by the Administrative Agent or Facing Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided, further, that Facing Agent may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency; provided, further, that (i) in the case of Euro denominated Loans, such delivery shall be 2 Business Days later and (ii) in the case of Sterling denominated Loans, such delivery shall be 1 Business Day later.

 

Standby Letters of Credit” means any of the irrevocable standby letters of credit issued pursuant to this Agreement, in form reasonably acceptable to the Facing Agent, together with any increases or decreases in the Stated Amount thereof and any renewals, amendments and/or extensions thereof.

 

Stated Amount” or “Stated Amounts” means (i) with respect to any Letter of Credit issued in Dollars, the stated or face amount of such Letter of Credit to the extent available at the time for Drawing (subject to presentment of all requisite documents), and (ii) with respect to any Letter of Credit issued in any currency other than Dollars, the Dollar Equivalent of the stated or face amount of such Letter of Credit to the extent available at the time for Drawing (subject to presentment of all requisite documents), in either case as the same may be increased or decreased from time to time in accordance with the terms of such Letter of Credit.

 

For purposes of calculating the Stated Amount of any Letter of Credit at any time:

 

(A)                   any increase in the Stated Amount of any Letter of Credit by reason of any amendment to any Letter of Credit shall be deemed effective under this Agreement as of the

 

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date Facing Agent actually issues an amendment purporting to increase the Stated Amount of such Letter of Credit, whether or not Facing Agent receives the consent of the Letter of Credit beneficiary or beneficiaries to the amendment, except that if any Borrower has required that the increase in Stated Amount be given effect as of an earlier date and Facing Agent issues an amendment to that effect, then such increase in Stated Amount shall be deemed effective under this Agreement as of such earlier date requested by such Borrower; and

 

(B)                   any reduction in the Stated Amount of any Letter of Credit by reason of any amendment to any Letter of Credit shall be deemed effective under this Agreement as of the later of (x) the date Facing Agent actually issues an amendment purporting to reduce the Stated Amount of such Letter of Credit, whether or not the amendment provides that the reduction be given effect as of an earlier date, or (y) the date Facing Agent receives the written consent (including by authenticated telex, cable, facsimile transmission or electronic imaging (with, in the case of a facsimile transmission or electronic imaging, a follow-up original hard copy)) of the Letter of Credit beneficiary or beneficiaries to such reduction, whether written consent must be dated on or after the date of the amendment issued by Facing Agent purporting to effect such reduction.

 

Sterling” or “£” means the lawful currency of the United Kingdom.

 

Subject Transaction” means, with respect to any period, (a) the Transactions, (b) any Permitted Acquisition or the making of other third-party Investments by one or more of Company and its Subsidiaries permitted by this Agreement, (c) any Significant Asset Disposition or other material Asset Disposition as determined in good faith by Company, in each case permitted by this Agreement, (d) the designation of a subsidiary as an Unrestricted Entity or an Unrestricted Entity as a Subsidiary in accordance with Section 12.23, (e) the incurrence, assumption or repayment of Indebtedness, (f) any Restricted Payment, (g) any Additional Facility, Replacement Revolving Loans, Replacement Revolving Commitments, Replacement Term Loans or Replacement Term Commitments, or (h) any other event that by the terms of the Loan Documents requires pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis.

 

Subsidiary” of any Person means any corporation, partnership (limited or general), limited liability company, trust or other entity of which a majority of the stock (or equivalent ownership or equity interest) having voting power to elect a majority of the board of directors (if a corporation) or to select the trustee or equivalent managing body or controlling interest, shall, at the time such reference becomes operative, be directly or indirectly owned or controlled by such Person or one or more of the other subsidiaries of such Person or any combination thereof. Rocky Mountain Metal Container LLC will not be deemed to be a

 

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Subsidiary of Company for purposes of the Loan Documents, unless (x) it otherwise meets the requirements of this definition and (y) it is designated as a “Subsidiary” by Company in a written notice to the Administrative Agent. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement (a) shall refer to a Subsidiary or Subsidiaries of Company and (b) shall not include any Unrestricted Entity.

 

SunGard Representations” means representations and warranties made by (i) the seller in the acquisition agreement that are material to the interest of the applicable Lenders and New Lenders under the applicable Additional Facility are true and correct in all material respects and if not correct give the purchaser the right not to close the applicable acquisition or to terminate its obligations under the acquisition agreement, and (ii) Company and each other Credit Party relating solely to (a) corporate existence, power and authority, in each case as they relate to entering into and performance of the relevant credit documentation by Company and each other Credit Party, (b) the authorization, execution, delivery and enforceability (subject to customary enforceability exceptions) of the credit documentation, in each case as they relate to entering into and performance of the relevant credit documentation by Company and each other Credit Party, (c) no conflicts of the credit documentation with organizational documents; (e) margin regulations; (f) Investment Company Act of 1940; (g) sanctions laws and regulations; (h) anti-corruption laws and (i) the Patriot Act.

 

Supermajority Lenders” means Non-Defaulting Lenders the sum of whose Effective Amount of Term Exposure, and Multicurrency Revolving Commitments (or, if after the Total Multicurrency Revolving Commitment has been terminated, outstanding Multicurrency Revolving Loans and Multicurrency Revolver Pro Rata Share of outstanding Swing Line Loans and LC Obligations, as applicable), constitute greater than 66-2/3% of the sum of (i) the total Effective Amount of Term Exposure of Non-Defaulting Lenders and (ii) the Total Multicurrency Revolving Commitment less the aggregate Multicurrency Revolving Commitments of Defaulting Lenders (or, if after the Total Multicurrency Revolving Commitment has been terminated, the total Effective Amount of outstanding Multicurrency Revolving Loans of Non-Defaulting Lenders and the aggregate Multicurrency Revolver Pro Rata Share of all Non-Defaulting Lenders of the total Effective Amount of outstanding Swing Line Loans and LC Obligations at such time).

 

Supplier” has the meaning assigned to that term in Section 4.7(h).

 

Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the

 

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International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement; 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 Company or any of its Subsidiaries shall be a Swap Contract.

 

Swing Line Commitment” means, with respect to European Swing Line Lender or the U.S. Swing Line Lender, as applicable, at any date, the obligation of such Lender to make Swing Line Loans pursuant to Section 2.1(f)(i) in the amount referred to therein.

 

Swing Line Facility” means the credit facility under this Agreement evidenced by the Swing Line Commitment and the Swing Line Loans.

 

Swing Line Lender” means European Swing Line Lender or U.S. Swing Line Lender, as applicable.

 

Swing Line Loan Participation Certificate” means a certificate, substantially in the form of Exhibit 2.1(f).

 

Swing Line Loans” means European Swing Line Loans and U.S. Swing Line Loans.

 

Swing Line Note” means a U.S. Swing Line Note or a European Swing Line Note, as the context may require.

 

Takeover Panel” means the United Kingdom Panel on Takeovers and Mergers.

 

Target” means Rexam PLC, a company incorporated in England and Wales (registered number 00191285) and whose registered office is at 4 Millbank, London SW1P 3XR, United Kingdom.

 

Target Acquisition” means the acquisition of Target Shares by Purchaser pursuant to a Scheme or an Offer.

 

Target Group” means the Target and its Subsidiaries.

 

Target Notes Refinancing” means the repurchase of all or a portion of the Existing Target Notes following the Target Acquisition, together with the payment of all fees and other amounts owing thereon or resulting from such repurchase.

 

Target Shares” means the ordinary shares of the Target, the subject of an Offer or, as the case may be, a Scheme.

 

Tax Sharing Agreements” means all tax sharing, disaffiliation tax allocation and other similar agreements entered into by Company or its Subsidiaries on or before the date of this Agreement.

 

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Taxes” or “Tax” means any and all present and future taxes, duties, levies, imposts, deductions, assessments, charges or withholdings (including backup withholding) imposed by any Governmental Authority, and any and all liabilities (including interest and penalties and other additions to taxes) with respect to the foregoing.

 

Term Commitment” means, with respect to any Lender and any Term Facility the obligation of such Lender to make Loans under such Term Facility (including loans made pursuant to any Additional Facility that increases such Term Facility and loans made pursuant to any Extended Term Commitment or Replacement Term Commitment), which commitment as of the Closing Date is the principal amount set forth opposite such Lender’s name on Schedule 1.1(a) hereto for the amount of its commitment to such Term Facility, as such commitments may be adjusted from time to time pursuant to this Agreement, and “Term Commitments” means such commitments collectively.

 

Term Commitment Fees” has the meaning assigned to that term in Section 3.2(b)(ii)(2).

 

Term Exposure” means, for any Term Facility, with respect to any Term Lender under such Term Facility, as of any date of determination, the outstanding principal amount of the Term Loans of such Term Lender under such Term Facility; provided that at any time prior to the termination of the Term Commitments under such Term Facility, the Term Exposure of such Term Lender under such Facility shall be equal to the sum of such Term Lender’s Term Loans and Term Commitment under such Facility.

 

Term Facility” means each of the USD Term A Facility, the EUR Term B Facility and each other Facility under this Agreement other than the Multicurrency Revolving Facility, the Swing Line Facility, any Additional Revolving Facility, any Replacement Revolving Facility and any Extended Revolving Facility, and “Term Facilities” means the Term Facilities, collectively.

 

Term Lender” means, with respect to any Term Facility, any Lender that has a Term Commitment for such Term Facility or that has made a Term Loan under such Term Facility.

 

Term Loans” means the Loans under the Term Facilities, collectively.

 

Term Maturity Date” means, with respect to any Term Facility, the scheduled maturity date for such Term Facility under this Agreement.

 

Term Note” means a USD Term A Note or a EUR Term A Note, as the context may require.

 

Term Percentage” means, at any time with respect to any Term Facility, a fraction (expressed as a percentage) the numerator of which is equal to the aggregate Effective Amount of all Term Loans under such Term Facility outstanding at such time and the

 

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denominator of which is equal to the aggregate Effective Amount of all Term Loans outstanding at such time.

 

Termination Event” means the occurrence of any of the following: (a) a Reportable Event, or (b) the withdrawal of any Credit Party or any ERISA Affiliate from a Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA, or (c) the termination of a Plan, the filing of a notice of intent to terminate a Plan or a Foreign Pension Plan or the treatment of a Plan or Foreign Pension Plan amendment as a termination, under Section 4041 of ERISA or similar foreign laws, if the plan assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Plan or Foreign Pension Plan by the PBGC or similar foreign governmental authority, or (e) any other event or condition which would constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or (f) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303 of ERISA, or (g) the determination that any Plan or Multiemployer Plan is considered an at-risk plan or plan in endangered or critical status within the meaning of Sections 430, 431 or 432 of the Code or Sections 303, 304 or 305 of ERISA or (h) the withdrawal of any Credit Party or any ERISA Affiliate from a Multiemployer Plan or Foreign Pension Plan if withdrawal liability is asserted by such plan, or (i) any event or condition which results in the insolvency of a Multiemployer Plan under Section 4245 of ERISA, or (j) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA, or (k) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Credit Party or any ERISA Affiliate.

 

Test Period” means the four consecutive Fiscal Quarters of Company then last ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 7.1 (or pursuant to Section 5.1(n) if financial statements have not been delivered pursuant to Section 7.1).

 

Total Available Multicurrency Revolving Commitment” means, at the time any determination thereof is made, the sum of the respective Available Multicurrency Revolving Commitments of the Lenders at such time.

 

Total Commitment” means, at the time any determination thereof is made, the sum of the Term Commitments and the Multicurrency Revolving Commitments at such time.

 

Total Multicurrency Revolving Commitment” means, at the time any determination thereof is made, the sum of the Multicurrency Revolving Commitments at such time.

 

Transaction” means, collectively, (i) the Company 2015 Credit Facility Refinancing, (ii) the Company 2016 Bridge Facility Reduction, (iii) the execution, delivery and performance by the Credit Parties of this Agreement and the other Loan Documents, (iii) the

 

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borrowing of Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder, (iv) the granting of Liens pursuant to the Loan Documents, and (v) the payment of the related fees and expenses incurred in connection with the consummation of the foregoing.

 

Type” means any type of Loan, namely, a Base Rate Loan or a Eurocurrency Loan. For purposes hereof, the term “Rate” shall include the Eurocurrency Rate and the Base Rate.

 

UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest on any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

 

UCP” means the Uniform Customs and Practices for Documentary Credit Operations (UCP 600).

 

UK Corporation Tax Act” means the Corporation Tax Act 2009 of the United Kingdom.

 

UK Credit Party” means (a) Purchaser, (b) Ball UK Holdings Ltd., an entity organized under the laws of England and Wales and (c) each other Person organized or formed under the laws of the England and Wales (i) that is or becomes an Other Subsidiary Borrower or (ii) grants security in respect of any Capital Stock owned by it in a Borrower or a Material Subsidiary in accordance with Section 7.12 or Section 7.14, in the case of clauses (b) and (c), solely to the extent that such Person remains an Other Subsidiary Borrower or continues to grant security in respect of Capital Stock in accordance with the terms of this Agreement.

 

UK Direction” has the meaning assigned to that term in clause (c)(iii) of the definition of Excluded Taxes in Section 1.1.

 

UK DTTP Filing” means an HMRC Form DTTP2 duly completed and filed by the relevant Credit Party, which:

 

(a)         where it relates to a UK Treaty Lender that is a Lender on the date of this Agreement, contains the scheme reference number and jurisdiction of tax residence opposite that Lender’s name in Schedule 1.1(i), and

 

(i)             where the Credit Party is a Credit Party on the date of this Agreement, is filed with HMRC within 30 Business Days after the date of this Agreement; or

 

(ii)          where the Credit Party becomes a Credit Party after the date of this Agreement, is filed with HMRC within 30 Business Days after the date on

 

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which that Credit Party becomes an additional Borrower under this Agreement; or

 

(b)         where it relates to a UK Treaty Lender that becomes a Lender after the Closing Date, contains the scheme reference number and jurisdiction of tax residence in the relevant Assignment and Assumption Agreement, and

 

(i)             where the Credit Party is a Credit Party on the date such UK Treaty Lender becomes a Lender under this Agreement (“New Lender Date”), is filed with HMRC within 30 Business Days after the New Lender Date; or

 

(ii)          where the Credit Party becomes a Credit Party under this Agreement after the New Lender Date, is filed with HMRC within 30 Business Days after the date on which that Credit Party becomes a Credit Party under this Agreement.

 

UK DTTP Scheme” has the meaning assigned to that term in Section 4.7(f)(iii)(2).

 

UK Qualifying Lender” means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document and is:

 

(a)                                 a Lender:

 

(i)                                     which is a bank (as defined for the purpose of section 879 of the UK Taxes Act making an advance under a Loan Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payment apart from section 18A of the UK Corporation Tax Act; or

 

(ii)                                  in respect of an advance made under a Loan Document by a person that was a bank (as defined for the purpose of section 879 of the UK Taxes Act) at the time that that advance was made and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

 

(b)                                 a Lender which is:

 

(i)                                     a company resident in the United Kingdom for United Kingdom tax purposes;

 

(ii)                                  a partnership each member of which is (A) a company resident in the United Kingdom or (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the UK Corporation Tax Act) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the UK Corporation Tax Act;

 

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(iii)                               a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the UK Corporation Tax Act) of that company; or

 

(c)                                  a UK Treaty Lender.

 

UK Security Documents” means any Other Pledge Agreements from time to time executed by any Credit Party governed by the laws of England and Wales.

 

UK Security Trustee” means Deutsche Bank AG New York Branch in its capacity as the UK Security Trustee under the UK Security Documents or any successor UK Security Trustee.

 

UK Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Loan Document is either:

 

(a)                                 a company resident in the United Kingdom for United Kingdom tax purposes;

 

(b)                                 a partnership each member of which is (A) a company resident in the United Kingdom or (B) a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the UK Corporation Tax Act) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the UK Corporation Tax Act; or

 

(c)                                  a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (for the purposes of section 19 of the UK Corporation Tax Act) of that company.

 

UK Taxes Act” means the Income Tax Act 2007 of the United Kingdom.

 

UK Treaty Lender” means a Lender which is treated as a resident of a UK Treaty State for the purposes of the Treaty, does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected and meets all other conditions in the Treaty for full exemption from tax imposed by the United Kingdom, except that for this purpose it shall be assumed that any necessary procedural formalities are satisfied.

 

UK Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom, which makes provision for full exemption from tax imposed by the United Kingdom.

 

Unavailable Rate” has the meaning assigned to that term in Section 3.6(b).

 

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Uncommitted Short Term Lines of Credit” means overdraft facilities, lines of credit or similar facilities providing for uncommitted advances to a Foreign Subsidiary, a Domestic Subsidiary or Company; provided that no Indebtedness incurred thereunder remains outstanding for more than one year and no Subsidiary grants any Lien (other than Customary Permitted Liens) to secure such Indebtedness.

 

Unmatured Event of Default” means an event, act or occurrence which with the giving of notice or the lapse of time (or both) would become an Event of Default.

 

Unpaid Drawing” has the meaning assigned to that term in Section 2.10(d).

 

Unrestricted Entity” means (i) prior to a redesignation by Company pursuant to Section 12.23, each Person set forth on Schedule 1.1(e) hereto, (ii) prior to a redesignation by Company pursuant to Section 12.23, each Person from time to time designated as an Unrestricted Entity by Company pursuant to a notice signed by a Responsible Officer identifying such Person to be designated as an Unrestricted Entity so long as (A) immediately before and immediately after the effectiveness of such designation, no Unmatured Event of Default or Event of Default exists or will exist (including, without limitation, the permissibility of any Investment, Indebtedness, Liens or other obligations existing at such Subsidiaries) and (B) after giving effect to such redesignation, Company shall be in compliance with the financial covenant set forth in Article IX (calculated on a Pro Forma Basis) as of the end of the most recent Test Period and (iii) each successor of the foregoing.

 

USD Term A Commitment” means, with respect to any USD Term A Lender, the obligation of such USD Term A Lender to make USD Term A Loans, as such commitment may be adjusted from time to time pursuant to this Agreement, which commitment as of the Closing Date is the amount set forth opposite such USD Term A Lender’s name on Schedule 1.1(a) hereto under the caption “Amount of USD Term A Commitment”, and “USD Term A Commitments” means such commitments of all of the USD Term A Lenders collectively which commitments equal $1,400,000,000 in the aggregate on the Closing Date.

 

USD Term A Commitment Fee” has the meaning assigned to that term in Section 3.2(b)(ii)(1).

 

USD Term A Facility” means the credit facility under this Agreement evidenced by the USD Term A Commitments and the USD Term A Loans.

 

USD Term A Lender” means, any Lender that has a USD Term A Commitment or that has made a USD Term A Loan.

 

USD Term A Loan” and “USD Term A Loans” have the meanings assigned to those terms in Section 2.1(b).

 

USD Term A Loan Maturity Date” means the fifth year anniversary of the Initial Certain Funds Funding Date.

 

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USD Term A Pro Rata Share” means, when used with reference to any USD Term A Lender and any described aggregate or total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the numerator of which shall be such USD Term A Lender’s USD Term A Commitment, or if the USD Term A Commitments have expired, such USD Term A Lender’s USD Term A Commitment most recently in effect immediately prior to such expiry, giving effect to any subsequent assignments and the denominator of which shall be the USD Term A Commitments, or if the USD Term A Commitments have expired, the USD Term A Commitments most recently in effect immediately prior to such expiry.

 

U.S. Credit Party” means any Credit Party organized or formed in the United States or any state thereof or the District of Columbia and any other Person that in each case is a United States person within the meaning of Section 7701(a)(30) of the Code.

 

U.S. Domiciled Foreign Guarantor” means any Subsidiary that is organized under the laws of the United States of America or any state thereof or the District of Columbia that is (i) a Domestic Subsidiary (without giving effect to clauses (i) and (ii) of the definition thereof) of a Foreign Subsidiary (without regard to the last sentence of such definition) or (ii) treated as a Foreign Subsidiary (without regard to the last sentence of such definition) solely as a result of the application of clauses (i) or (ii) of the definition of Domestic Subsidiary; provided that no Person listed on Schedule 1.1(j) shall constitute a U.S. Domiciled Foreign Guarantor to the extent that such Person (x) is a direct or indirect Domestic Subsidiary of a Foreign Subsidiary that is disregarded for United States federal income tax purposes and (y) is not a direct or indirect Domestic Subsidiary of any other Foreign Subsidiary.

 

U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Pledge Agreement” has the meaning assigned to that term in Section 5.1(a)(iii).

 

U.S. Swing Line Lender” means Deutsche Bank AG New York Branch in such capacity.

 

U.S. Swing Line Loans” has the meaning assigned to that term in Section 2.1(f)(i)(1).

 

“U.S. Swing Line Note” has the meaning assigned to that term in Section 2.2(a)(4).

 

U.S. Tax Compliance Certificate” has the meaning specified in Section 4.7(f).

 

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

 

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substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

 

Voting Securities” means any class of Capital Stock of a Person pursuant to which the holders thereof have, at the time of determination, the general voting power under ordinary circumstances to vote for the election of directors, managers, trustees or general partners of such Person (irrespective of whether or not at the time any other class or classes will have or might have voting power by reason of the happening of any contingency).

 

Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the then outstanding principal amount of such Indebtedness into (b) the total of the product obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment.

 

Wholly-Owned Domestic Subsidiary” means a Domestic Subsidiary that is a Wholly-Owned Subsidiary.

 

Wholly-Owned Foreign Subsidiary” means a Foreign Subsidiary that is a Wholly-Owned Subsidiary.

 

Wholly-Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person, all of the outstanding shares of Capital Stock of which (other than qualifying shares required to be owned by directors) are at the time owned directly or indirectly by such Person and/or one or more Wholly-Owned Subsidiaries of such Person.

 

Wholly-Owned U.S. Domiciled Foreign Guarantor” means a U.S. Domiciled Foreign Guarantor that is a Wholly-Owned Subsidiary.

 

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

 

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.

 

written” or “in writing” means any form of written communication or a communication by means of facsimile device or other electronic image scan transmission (e.g., “pdf” via email).

 

The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.” The words “herein,” “hereof” and words of similar import as used in this Agreement shall refer to this Agreement as a whole and not to any particular provision in this

 

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Agreement. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”. References to “Articles”, “Sections”, “paragraphs”, “Exhibits” and “Schedules” in this Agreement shall refer to Articles, Sections, paragraphs, Exhibits and Schedules of this Agreement unless otherwise expressly provided; references to Persons include their respective permitted successors and assigns or, in the case of governmental Persons, Persons succeeding to the relevant functions of such persons; and all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations. Unless otherwise expressly provided herein, references to constitutive and Organizational Documents and to agreements (including this Agreement and the other Loan Documents) and other contractual instruments shall be deemed to include subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document.

 

1.2                               Accounting Terms; Financial Statements.

 

(a)                       Except as otherwise expressly provided herein, all accounting terms used herein but not expressly defined in this Agreement and all computations and determinations for purposes of determining compliance with the financial requirements of this Agreement shall have the respective meanings given to them or shall be made in accordance with GAAP. Except as otherwise expressly provided herein, the financial statements required to be delivered pursuant to Section 7.1 shall be prepared in accordance with GAAP in the United States of America as in effect on the respective dates of their preparation. Unless otherwise provided for herein, wherever any computation is to be made with respect to any Person and its Subsidiaries, such computation shall be made so as to exclude all items of income, assets and liabilities attributable to any Person which is not a Subsidiary of such Person. For purposes of the financial terms set forth herein, including, without limitation, for all purposes under Article IX, whenever a reference is made to a determination which is required to be made on a consolidated basis (whether in accordance with GAAP or otherwise) for Company and its Subsidiaries, such determination shall be made as if all Unrestricted Entities were wholly-owned by a Person not an Affiliate of Company. In the event that any changes in generally accepted accounting principles in the U.S. occur after the date of this Agreement or the application thereof from that used in the preparation of the financial statements referred to in Section 6.5(a) hereof occur after the Closing Date and such changes or such application result in a material variation in the method of calculation of financial covenants or other terms of this Agreement, then Company, the Administrative Agent and the Lenders agree to enter into and diligently pursue negotiations in good faith in order to amend such provisions of this Agreement so as to equitably reflect such changes so that the criteria for evaluating Company’s financial condition will be the same after such changes as if such changes had not occurred; provided that until so amended, such financial covenants or other terms of this Agreement shall continue to be calculated in accordance with GAAP as in effect and applied immediately before such change shall have become effective. Notwithstanding anything to the contrary above or in the definitions of Capitalized Lease, Capitalized Lease Obligations or Consolidated Interest Expense, in the event of a change under GAAP (or the application thereof) requiring all or certain operating leases to be capitalized, only those leases that would result in a Capitalized Lease or Capitalized Lease Obligations on the

 

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Closing Date (assuming for purposes hereof that they were in existence on the Closing Date and applying GAAP as in effect on such date) hereunder shall be considered Capitalized Leases or Capitalized Lease Obligations hereunder and all calculations and deliverables under this Agreement or any other Loan Document shall be made in accordance therewith.

 

(b)                                 For purposes of computing the First Lien Net Leverage Ratio, the Net Leverage Ratio, the Secured Net Leverage Ratio or compliance with covenants or tests determined by reference to Consolidated EBITDA or Consolidated Tangible Assets, in each case for the applicable four Fiscal Quarter period, such ratios, covenants and tests, including all components thereof for such period, shall be calculated on a Pro Forma Basis as determined in good faith by Company.

 

(c)                                  For purposes of the limitations, levels and baskets in Articles IV, VII, VIII and X stated in Dollars, non-Dollar currencies will be converted into Dollars at the time of incurrence or receipt, as the case may be, using the methodology set forth in the definition of “Dollar Equivalent”.

 

1.3                               Calculation of Exchange Rate. On each Exchange Rate Determination Date, the Administrative Agent shall (a) determine the Exchange Rate as of such Exchange Rate Determination Date and (b) give notice thereof (i) to each Borrower and (ii) to each Lender that shall have requested such information. The Exchange Rates so determined shall become effective on the first Business Day immediately following the relevant Exchange Rate Determination Date (each, a “Reset Date”) and shall remain effective until the next succeeding Reset Date, and shall for all purposes of this Agreement (other than any provision expressly requiring the use of a current Exchange Rate) be the Exchange Rate employed in converting amounts between Dollars or Alternative Currencies.

 

1.4                               Timing of Performance. When the performance of any covenant or duty is stated to be required on a day which is not a Business Day, the date of such performance shall be extended to the immediately succeeding Business Day.

 

1.5                               Limited Condition Transactions. In connection with any action being taken solely in connection with a Limited Condition Transaction, for purposes of:

 

(a)                                 determining compliance with any provision of this Agreement which requires the calculation of Consolidated EBITDA (including, without limitation, tests measured as a percentage of Consolidated EBITDA), the First Lien Net Leverage Ratio, the Net Leverage Ratio, the Secured Net Leverage Ratio or Available Liquidity (including, without limitation, Section 2.9); or

 

(b)                                 testing availability under baskets set forth in this Agreement (including, without limitation, baskets measured as a percentage of Consolidated Tangible Assets);

 

in each case, at the option of Company (Company’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of

 

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determination of whether any such action is permitted hereunder shall be deemed to be (i) in the case of a Limited Condition Acquisition, the date the definitive agreements for such Limited Condition Acquisition are entered into, (ii) in the case of any redemption or repayment of Indebtedness requiring irrevocable advance notice or any irrevocable offer to purchase Indebtedness that is not subject to obtaining financing, the date of such irrevocable advance notice or irrevocable offer and (iii) in the case of any declaration of a Dividend in respect of, or irrevocable advance notice of, or any irrevocable offer to, purchase, redemption or other acquisition or retirement for value of any Capital Stock of, Company that is not subject to obtaining financing, the date of such declaration, irrevocable advance notice or irrevocable offer (each, an “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ended prior to the LCT Test Date, Company could have taken such action on the relevant LCT Test Date in compliance with such test, ratio or basket, such test, ratio or basket shall be deemed to have been complied with. If Company has made an LCT Election and any of the tests, ratios or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such test, ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Tangible Assets of Company and its Subsidiaries, at or prior to the consummation of the relevant transaction or action, such tests, baskets or ratios will be deemed not to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken. If Company has made an LCT Election for any Limited Condition Transaction, then (x) in connection with any subsequent calculation of any test, ratio or basket availability with respect to the incurrence of Indebtedness or Liens, or the making of Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Company, the prepayment, redemption, purchase, defeasance or other satisfaction of Indebtedness, or the designation of an Unrestricted Entity 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, in the case of a Limited Condition Acquisition, the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such test, ratio or basket shall be tested by calculating the availability under such test, ratio or basket on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith have been consummated (including any incurrence of Indebtedness and any associated Lien and the use of proceeds thereof) and (y) in connection with any calculation of any ratio, test or basket availability with respect to the making of Restricted Payments following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or, in the case of a Limited Condition Acquisition, the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether the making of such Restricted Payment is permitted under this Agreement, any such test, ratio or basket shall be tested by calculating the availability under such test, ratio or basket on a Pro Forma Basis (i) assuming such Limited Condition Transaction and other transactions in connection therewith have been consummated and (ii) assuming such Limited Condition Transaction and other transactions in connection therewith have not been consummated.

 

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In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Unmatured Event of Default, Event of Default, Certain Funds Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Company, be deemed satisfied, so long as no Unmatured Event of Default, Event of Default, Certain Funds Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. If Company has exercised its option under this Section 1.5, and any Unmatured Event of Default, Event of Default, Certain Funds Default or specified Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Unmatured Event of Default, Event of Default, Certain Funds Default or specified Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.

 

1.6                               Luxembourg Terms. Without prejudice to the generality of any provision of this Agreement, to the extent this Agreement relates to a Luxembourg Credit Party, a reference to: (a) a receiver, administrative receiver, administrator, trustee, custodian, sequestrator, conservator or similar officer appointed for the reorganization or liquidation of the business of a person includes, without limitation, a juge délégué, commissaire, juge-commissaire, mandataire ad hoc, administrateur provisoire, liquidateur or curateur; (b) a lien or security interest includes any hypothèque, nantissement, gage, privilège, sûreté réelle, droit de rétention and any type of security in rem (sûreté réelle) or agreement or arrangement having a similar effect and any transfer of title by way of security; (c) a person being unable to pay its debts includes that person being in a state of cessation de paiements; (d) creditors process means an executory attachment (saisie exécutoire) or conservatory attachment (saisie conservatoire); (e) a guarantee includes any garantie which is independent from the debt to which it relates and excludes any suretyship (cautionnement) within the meaning of Articles 2011 and seq. of the Luxembourg Civil Code; (f) by-laws or constitutional documents includes its up-to-date (restated) articles of association (statuts coordonnés); and (g) a director includes an administrateur or a gérant.

 

1.7                               Netherlands Terms. Without prejudice to the generality of any provision of this Agreement, to the extent this Agreement relates to a Netherlands Credit Party, a reference to: (a) a winding-up, administration or dissolution includes a Netherlands Credit Party being declared bankrupt (failliet verklaard) or dissolved (ontbonden), (b) a moratorium includes surseance van betaling and a moratorium is declared or occurs includes surseance verleend, (c) a trustee in bankruptcy includes a curator, (d) an administrator includes a bewindvoerder, (e) attachment includes a beslag and (f) a necessary action to authorize where applicable, includes without limitation: (i) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden) and (ii) obtaining an unconditional positive advice (advies) from the competent works council(s).

 

1.8                               Restricted Lenders. With respect to each Lender and each Credit Party or Subsidiary that qualifies as a resident party domiciled in Germany (Inländer) within the meaning

 

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of section 2 paragraph 15 of the German Foreign Trade and Payments Act (Außenwirtschaftsgesetzg) (each a “Restricted Lender”), Section 6.21 and Section 7.4 shall only apply to the extent that such provision would not result in (a) any violation of, conflict with or liability under EU Regulation (EC) 2271/96 or (b) a violation or conflict with section 7 of the German Foreign Trade and Payment Ordinance (Außenwirtschaftsverordnung) or a similar anti-boycott statute. In connection with any amendment, waiver, determination or direction relating to any part of Section 6.21 or Section 7.4 of which a Restricted Lender does not have the benefit, to the extent that on or prior to the date of such amendment, waiver, determination or direction (and until such time as Lender shall advise the Administrative Agent and Company in writing otherwise), such Lender has advised the Administrative Agent and Company in writing that it does not have such benefit, the Commitments of that Restricted Lender will be excluded for the purpose of determining whether the consent of the Required Lenders has been obtained or whether the determination or direction by the Required Lenders has been made.

 

ARTICLE II

 

AMOUNT AND TERMS OF DOLLAR, STERLING, EURO AND ALTERNATIVE CURRENCY CREDITS

 

2.1                               The Commitments.

 

(a)                       Multicurrency Revolving Loans. Each Multicurrency Revolving Lender, severally and for itself alone, hereby agrees, on the terms and subject to the conditions hereinafter set forth and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, to make loans to any or all of Company and Other Subsidiary Borrowers denominated in Dollars or an Alternative Currency, in each case, on a revolving basis from time to time during the Multicurrency Revolving Commitment Period, in an amount not to exceed its Multicurrency Revolver Pro Rata Share of the Total Available Multicurrency Revolving Commitment and, with respect to any applicable Borrower, such Borrower’s Available Revolver Sublimit (each such loan by any Lender, together with loans made pursuant to any Additional Facility that increases the Multicurrency Revolving Facility and loans made pursuant to any Extended Revolving Commitment or Replacement Revolving Commitment, a “Multicurrency Revolving Loan” and collectively, the “Multicurrency Revolving Loans”). All Multicurrency Revolving Loans comprising the same Borrowing hereunder shall be made by the Multicurrency Revolving Lenders simultaneously and in proportion to their respective Multicurrency Revolving Commitments. Prior to the Revolver Termination Date applicable to the Multicurrency Revolving Facility, Multicurrency Revolving Loans may be repaid and reborrowed by Company and Other Subsidiary Borrowers in accordance with the provisions hereof.

 

(b)                                 USD Term A Loans. Each USD Term A Lender, severally and for itself alone, hereby agrees, on the terms and subject to the conditions hereinafter set forth and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, to make loans (each such loan, a “USD Term A Loan” and collectively, the “USD Term A Loans”) to Company from time to time during the Certain Funds Period in an aggregate principal amount equal to the USD Term A Commitment of such USD Term A Lender. The

 

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USD Term A Loans (i) shall be denominated in Dollars and (ii) shall be made as Base Rate Loans or as Eurocurrency Loans with an initial Interest Period of 3 months and shall be maintained as Base Rate Loans or Eurocurrency Loans. Each USD Term A Lender’s USD Term A Commitment shall expire immediately and without further action on the last day of the Certain Funds Period after giving effect to all USD Term A Loans made or to be made on or before such date. No amount of a USD Term A Loan that is repaid or prepaid may be reborrowed hereunder.

 

(c)                                  EUR Term A Loans. Each EUR Term A Lender, severally and for itself alone, hereby agrees, on the terms and subject to the conditions hereinafter set forth and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, to make loans (each such loan, a “EUR Term A Loan” and collectively, the “EUR Term A Loans”) to Purchaser from time to time during the Certain Funds Period in an aggregate principal amount not to exceed the EUR Term A Commitment of such EUR Term A Lender. The EUR Term A Loans (i) shall be denominated in Euro and (ii) shall be made as Eurocurrency Loans with an initial Interest Period of 3 months and shall be maintained as Eurocurrency Loans. All EUR Term A Loans comprising the same Borrowing hereunder shall be made by the EUR Term A Lenders simultaneously and in proportion to their respective EUR Term A Commitments. Each EUR Term A Lender’s EUR Term A Commitment shall expire immediately and without further action on the last day of the Certain Funds Period after giving effect to all EUR Term A Loans made or to be made on or before such date. No amount of a EUR Term A Loan that is repaid or prepaid may be reborrowed hereunder.

 

(d)                                 Additional Term Loans. Subject to Section 2.9, as set forth in any amendment to this Agreement entered into pursuant to Section 2.9, each Lender party thereto that is agreeing to provide Additional Term Loans thereunder severally and for itself alone, hereby agrees, subject to the terms hereof and thereof and in reliance upon the representations and warranties set forth in such amendment, in this Agreement, and in the other Loan Documents, to make its portion of such Additional Term Loans available to the borrower set forth in such amendment in the amount of its respective commitment to make such Additional Term Loans as set forth in such amendment, at the times and in the manner set forth in such amendment. No amount of any Additional Term Loan that is repaid or prepaid may be reborrowed. Each Additional Term Loan may be a Base Rate Loan or Eurocurrency Loan, as further provided herein.

 

(e)                                  Cashless Settlement. Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans under any Facility in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by Company, the Administrative Agent, and such Lender.

 

(f)                                   Swing Line Loans.

 

(i)             Swing Line Commitment.

 

(1)                     U.S. Swing Line. Subject to the terms and conditions hereof, the U.S. Swing Line Lender in its individual capacity agrees to

 

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make swing line loans in Dollars (“U.S. Swing Line Loans”) to Company on any Business Day from time to time during the Multicurrency Revolving Commitment Period in an aggregate principal amount at any one time outstanding that, when added to the Dollar Equivalent of the principal amount of European Swing Line Loans then outstanding, do not exceed $250,000,000; provided, however, that in no event may the amount of any Borrowing of U.S. Swing Line Loans (A) exceed the Total Available Multicurrency Revolving Commitment immediately prior to such Borrowing (after giving effect to the use of proceeds thereof) or (B) cause the outstanding Multicurrency Revolving Loans of any Lender, when added to such Lender’s Multicurrency Revolver Pro Rata Share of the then outstanding Swing Line Loans and Multicurrency Revolver Pro Rata Share of the aggregate LC Obligations (exclusive of Unpaid Drawings relating to LC Obligations which are repaid with the proceeds of, and simultaneously with the incurrence of, Multicurrency Revolving Loans or Swing Line Loans) to exceed such Lender’s Multicurrency Revolving Commitment. Amounts borrowed by Company under this Section 2.1(f)(i)(1) may be repaid and reborrowed. The U.S. Swing Line Loans shall be made in Dollars and maintained as Base Rate Loans and, notwithstanding Section 2.6, shall not be entitled to be converted into any other Type of Loan.

 

(2)                     European Swing Line. Subject to the terms and conditions hereof, the European Swing Line Lender in its individual capacity agrees to make swing line loans in Euros or Sterling (“European Swing Line Loans”) to Company or any Other Subsidiary Borrower that is a Foreign Subsidiary on any Business Day from time to time during the Multicurrency Revolving Commitment Period in an aggregate principal amount at any one time outstanding that, when added to the principal amount of U.S. Swing Line Loans then outstanding, do not exceed the Dollar Equivalent of $250,000,000; provided, however, that in no event may the amount of any Borrowing of European Swing Line Loans (A) exceed the Total Available Multicurrency Revolving Commitment immediately prior to such Borrowing (after giving effect to the use of proceeds thereof), (B) exceed the Available Revolver Sublimit for such Borrower immediately prior to such Borrowing or (C) cause the outstanding Multicurrency Revolving Loans of any Lender, when added to such Lender’s Multicurrency Revolver Pro Rata Share of the then outstanding Swing Line Loans and Multicurrency Revolver Pro Rata Share of the aggregate LC Obligations (exclusive of Unpaid Drawings relating to LC Obligations which are repaid with the proceeds of, and simultaneously with the incurrence of, Multicurrency Revolving Loans or Swing Line Loans) to exceed such Lender’s Multicurrency Revolving Commitment. Amounts borrowed under this Section 2.1(f)(i)(2) may be repaid and reborrowed. The European Swing Line Loans shall be made in Euros or Sterling, as required by Company, and maintained as Overnight Rate Loans and, notwithstanding Section 2.6, shall not be entitled to be converted into any other Type of Loan.

 

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(ii)          Refunding of Swing Line Loans. Each Swing Line Lender, at any time in its sole and absolute discretion, may, upon notice to the Multicurrency Revolving Lenders, require each Multicurrency Revolving Lender (including such Swing Line Lender) to make a Multicurrency Revolving Loan in the Applicable Currency in an amount equal to such Lender’s Multicurrency Revolver Pro Rata Share of the principal amount of the applicable Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given; provided, however, that such notice shall be deemed to have automatically been given upon the occurrence of an Event of Default under Section 10.1(e) or 10.1(f). Unless any of the Events of Default described in Section 10.1(e) or 10.1(f) shall have occurred and be continuing (in which event the procedures of Section 2.1(f)(iii) shall apply) and regardless of whether the conditions precedent set forth in this Agreement to the making of a Multicurrency Revolving Loan are then satisfied, each Multicurrency Revolving Lender shall make the proceeds of its Multicurrency Revolving Loan available to the applicable Swing Line Lender at the Notice Address prior to 11:00 a.m., New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Multicurrency Revolving Loans shall be immediately applied to repay the Refunded Swing Line Loans.

 

(iii)       Participation in Swing Line Loans. If, prior to refunding a Swing Line Loan with a Multicurrency Revolving Loan pursuant to Section 2.1(f)(ii), an Event of Default under Section 10.1(e) or 10.1(f) shall have occurred and be continuing, or if for any other reason a Multicurrency Revolving Loan cannot be made pursuant to Section 2.1(f)(ii), then, subject to the provisions of Section 2.1(f)(iv) below, each Multicurrency Revolving Lender will, on the date such Multicurrency Revolving Loan was to have been made, purchase (without recourse or warranty) from the applicable Swing Line Lender an undivided participation interest in such Swing Line Loan in an amount equal to its Multicurrency Revolver Pro Rata Share of such Swing Line Loan. Upon request, each Multicurrency Revolving Lender will immediately transfer to the applicable Swing Line Lender, in immediately available funds, the amount of its participation and upon receipt thereof such Swing Line Lender will deliver to such Multicurrency Revolving Lender a Swing Line Loan Participation Certificate dated the date of receipt of such funds and in such amount.

 

(iv)      Lenders’ Obligations Unconditional. Each Lender’s obligation to make Multicurrency Revolving Loans in accordance with Section 2.1(f)(ii) and to purchase participating interests in accordance with Section 2.1(f)(iii) above shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against any Swing Line Lender, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of any Event of Default or Unmatured Event of Default; (C) any adverse change in the condition (financial or otherwise) of any Borrower or any other Person; (D) any breach of this Agreement by any Borrower or any other Person; (E) any inability of any Borrower to satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such participating interest is to be purchased or (F) any other circumstance,

 

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happening or event whatsoever, whether or not similar to any of the foregoing. If any Lender does not make available to the applicable Swing Line Lender the amount required pursuant to Section 2.1(f)(ii) or (iii) above, as the case may be, such Swing Line Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date of non-payment until such amount is paid in full at the Federal Funds Rate for the first 2 Business Days and at the Base Rate thereafter. Notwithstanding the foregoing provisions of this Section 2.1(f)(iv), no Lender shall be required to make a Multicurrency Revolving Loan to any Borrower for the purpose of refunding a Swing Line Loan pursuant to Section 2.1(f)(ii) above or to purchase a participating interest in a Swing Line Loan pursuant to Section 2.1(f)(iii) if an Event of Default or Unmatured Event of Default has occurred and is continuing and, prior to the making by the applicable Swing Line Lender of such Swing Line Loan, such Swing Line Lender has received written notice from such Lender specifying that such Event of Default or Unmatured Event of Default has occurred and is continuing, describing the nature thereof and stating that, as a result thereof, such Lender shall cease to make such Refunded Swing Line Loans and purchase such participating interests, as the case may be; provided, however, that the obligation of such Lender to make such Refunded Swing Line Loans and to purchase such participating interests shall be reinstated upon the earlier to occur of (y) the date upon which such Lender notifies such Swing Line Lender that its prior notice has been withdrawn and (z) the date upon which the Event of Default or Unmatured Event of Default specified in such notice no longer is continuing.

 

(v)         Notwithstanding anything to the contrary contained in this Section 2.1(f), no Swing Line Lender shall be obligated to make any Swing Line Loan at any time when any other Lender is a Defaulting Lender, unless such Swing Line Lender has entered into arrangements with Company, any Other Subsidiary Borrower or such Defaulting Lender which are satisfactory to such Swing Line Lender to eliminate such Swing Line Lender’s Fronting Exposure (after giving effect to Section 4.1(b)(iii)) with respect to any such Defaulting Lender, including the delivery of Cash Collateral, arising with respect to such Swing Line Loan.

 

2.2                               Notes.

 

(a)                       Evidence of Indebtedness. At the request of any Lender, each respective Borrower’s obligation to pay the principal of and interest on all the Loans made to such Borrower by such Lender shall be evidenced (1) if USD Term A Loans, by a promissory note (each, a “USD Term A Note” and, collectively, the “USD Term A Notes”) duly executed and delivered by Company substantially in the form of Exhibit 2.2(a)(1) hereto, with blanks appropriately completed in conformity herewith, (2) if EUR Term A Loans, by a promissory note (each, a “EUR Term A Note” and, collectively, the “EUR Term A Notes”) duly executed and delivered by Purchaser substantially in the form of Exhibit 2.2(a)(2) hereto, with blanks appropriately completed in conformity herewith, (3) if Multicurrency Revolving Loans, by a promissory note (each, a “Multicurrency Revolving Note” and, collectively, the “Multicurrency Revolving Notes”) duly executed and delivered by Company, European Holdco or an Other Subsidiary Borrower, as applicable, substantially in the form of Exhibit 2.2(a)(3) hereto, with

 

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blanks appropriately completed in conformity herewith, (4) if U.S. Swing Line Loans, by a promissory note (the “U.S. Swing Line Note”) duly executed and delivered by Company substantially in the form of Exhibit 2.2(a)(4) hereto, with blanks appropriately completed in conformity herewith, and (5) if European Swing Line Loans, by a promissory note (the “European Swing Line Note”) duly executed and delivered by Company and each Other Subsidiary Borrower that is a Foreign Subsidiary substantially in the form of Exhibit 2.2(a)(5) hereto, with the blanks appropriately completed in conformity herewith.

 

(b)                                 Notation of Payments. Each Lender will note on its internal records the amount of each Loan made by it, the Applicable Currency and each payment in respect thereof and will, prior to any transfer of any of its Notes, endorse on the reverse side thereof the outstanding principal amount of Loans evidenced thereby. Failure to make any such notation shall not affect any Borrower’s or any Guarantor’s obligations hereunder or under the other applicable Loan Documents in respect of such Loans.

 

2.3                               Minimum Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate principal amount of each Borrowing by any Borrower hereunder shall be not less than the Minimum Borrowing Amount and, if greater, shall be in Minimum Borrowing Multiples (other than Swing Line Loans which may be in any amount over the Minimum Borrowing Amount) above such minimum (or, if less, the then Total Available Multicurrency Revolving Commitment or the total available Term Commitment for the applicable Term Facility, as applicable). More than one Borrowing may be incurred on any date; provided that, unless approved by the Administrative Agent in its reasonable discretion, at no time shall there be outstanding more than 8 Borrowings of Eurocurrency Loans under each Term Facility, or more than 12 Borrowings of Eurocurrency Loans under the Multicurrency Revolving Facility.

 

2.4                               Borrowing Options. The Loans (other than Swing Line Loans) denominated in Dollars shall, at the option of the applicable Borrower except as otherwise provided in this Agreement, be (i) Base Rate Loans, (ii) Eurocurrency Loans, or (iii) part Base Rate Loans and part Eurocurrency Loans. U.S. Swing Line Loans shall be Base Rate Loans. European Swing Line Loans shall be Overnight Rate Loans. Multicurrency Revolving Loans denominated in Euro, Sterling and any other Alternative Currency and EUR Term A Loans shall be Eurocurrency Loans. As to any Eurocurrency Loan, any Lender may, if it so elects, fulfill its commitment by causing a domestic or foreign branch or affiliate with reasonable and appropriate capacities to fund such currency and without any increased cost to Borrowers to make or continue such Loan; provided that in such event the funding of that Lender’s Loan shall, for the purposes of this Agreement, be considered to be the obligation of or to have been made by that Lender and the obligation of the applicable Borrower to repay that Lender’s Loan shall nevertheless be to that Lender and shall be deemed held by that Lender, for the account of such branch or affiliate.

 

2.5                               Notice of Borrowing. Whenever any Borrower desires to make a Borrowing of any Loan (other than a Swing Line Loan) hereunder, Company or the applicable Borrower shall give the Administrative Agent at its Notice Address at least 1 Business Day’s prior written notice (or telephonic notice promptly confirmed in writing), given not later than

 

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1:00 p.m. (New York City time), of each Base Rate Loan, and at least 3 Business Days prior written notice (or telephonic notice promptly confirmed in writing), given not later than 11:00 a.m. (New York City time) (or 8:00 a.m. (New York City time), in the case of a borrowing in Euro or Sterling), of each Eurocurrency Loan to be made hereunder; provided, however, that a Notice of Borrowing with respect to Borrowings to be made on the date hereof may, at the discretion of the Administrative Agent, be delivered later than the time specified above. Whenever Company desires that the U.S. Swing Line Lender make a U.S. Swing Line Loan under Section 2.1(f)(i)(1), it shall deliver to the U.S. Swing Line Lender prior to 1:00 p.m. (New York City time) (or such later time of day as U.S. Swing Line Lender may agree in any instance in its sole discretion) on the date of such Borrowing written notice (or telephonic notice promptly confirmed in writing). Whenever Company or any Other Subsidiary Borrower that is a Foreign Subsidiary desires that the European Swing Line Lender make a European Swing Line Loan under Section 2.1(f)(i)(2), it shall deliver to European Swing Line Lender prior to 1:00 p.m. (London time) (or such later time of day as European Swing Line Lender may agree in any instance in its sole discretion) on the date of such Borrowing written notice (or telephonic notice promptly confirmed in writing). Each such notice (each a “Notice of Borrowing”), which shall be substantially in the form of Exhibit 2.5 hereto, shall be irrevocable, shall be deemed a representation by the applicable Borrower that all conditions precedent to such Borrowing have been satisfied and shall specify (i) the Facility under which such Borrowing is being requested, (ii) the aggregate principal amount of the Loans to be made pursuant to such Borrowing (stated in the relevant currency), (iii) the date of the Borrowing (which shall be a Business Day) and (iv) whether the Loans being made pursuant to such Borrowing are to be Swing Line Loans and, if not, whether such Loans are to be Base Rate Loans or Eurocurrency Loans and, with respect to Eurocurrency Loans, the Interest Period and Applicable Currency to be applicable thereto; provided that if such Borrower shall have failed to specify the Type, Applicable Currency or Interest Period of such Loans (and shall not have promptly responded to the Administrative Agent’s request for such information), such Borrower shall be deemed to have requested a Eurocurrency Loan denominated in the currency specified, with an Interest Period of one month, and if no currency is specified, in Dollars; provided, further, that if the date of such notice is less than 3 Business Days from the date of such Borrowing, such Borrower shall be deemed to have requested a Base Rate Loan in Dollars. The Administrative Agent shall as promptly as practicable give each Lender under the applicable Facility written or telephonic notice (promptly confirmed in writing) of each proposed Borrowing, of such Lender’s Pro Rata Share thereof and of the other matters covered by the Notice of Borrowing. Without in any way limiting Company’s or the applicable Borrower’s obligation to confirm in writing any telephonic notice, the Administrative Agent or the applicable Swing Line Lender (in the case of Swing Line Loans) or the respective Facing Agent (in the case of Letters of Credit) may act without liability upon the basis of telephonic notice believed by the Administrative Agent in good faith to be from a Responsible Officer of Company or the applicable Borrower prior to receipt of written confirmation. The Administrative Agent’s records shall, absent manifest error, be final, conclusive and binding on Borrowers with respect to evidence of the time and terms of such telephonic Notice of Borrowing.

 

2.6                               Conversion or Continuation. Any Borrower may elect (i) on any Business Day to convert Base Rate Loans or any portion thereof to Eurocurrency Loans, (ii) at

 

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the end of any Interest Period with respect thereto, to convert Loans denominated in Dollars that are Eurocurrency Loans or any portion thereof into Base Rate Loans or to continue such Eurocurrency Loans or any portion thereof for an additional Interest Period and (iii) at the end of any Interest Period with respect thereto, to continue Eurocurrency Loans denominated in an Alternative Currency for an additional Interest Period; provided, however, that the aggregate principal amount of the Eurocurrency Loans for each Interest Period therefor must be in an aggregate principal amount equal to the Minimum Borrowing Amount for Eurocurrency Loans or Minimum Borrowing Multiples in excess thereof (or, if less, the then Total Available Multicurrency Revolving Commitment or the total available Term Commitment for the applicable Term Facility, as applicable). Each continuation of Eurocurrency Loans shall be allocated among the Eurocurrency Loans in the applicable Facility of the applicable Lenders in accordance with their respective Pro Rata Shares. Each such election shall be in substantially the form of Exhibit 2.6 hereto (a “Notice of Conversion or Continuation”) and shall be made by giving the Administrative Agent at least 3 Business Days’ (or 1 Business Day in the case of a conversion into Base Rate Loans) prior written notice thereof to the Notice Address given not later than 1:00 p.m. (New York City time) specifying (i) the amount and type of conversion or continuation, (ii) in the case of a conversion to or a continuation of Eurocurrency Loans, the Interest Period therefor and (iii) in the case of a conversion, the date of conversion (which date shall be a Business Day). Notwithstanding the foregoing, no conversion in whole or in part of Base Rate Loans to Eurocurrency Loans, and no continuation in whole or in part of Eurocurrency Loans (other than Alternative Currency Loans), shall be permitted at any time at which an Event of Default shall have occurred and be continuing and the Administrative Agent, at the request of the Required Lenders, so notifies Company. If, within the time period required under the terms of this Section 2.6, the Administrative Agent does not receive a Notice of Conversion or Continuation from the applicable Borrower containing a permitted election to continue any Eurocurrency Loans for an additional Interest Period or to convert any such Eurocurrency Loans, then, upon the expiration of the Interest Period therefor, such Eurocurrency Loans will be automatically continued as a Eurocurrency Loan in the same currency with an Interest Period of one month. Each Notice of Conversion or Continuation shall be irrevocable.

 

2.7                               Disbursement of Funds. No later than 12:00 noon (New York City time or, as applicable, local time in the financial center for the applicable Alternative Currency (with respect to Loans denominated in an Alternative Currency)) on the date specified in each Notice of Borrowing (3:30 p.m. New York City time in the case of U.S. Swing Line Loans, or local time in the financial center for the applicable Alternative Currency in the case of European Swing Line Loans), each Lender will make available its Pro Rata Share of Loans of the Borrowing requested to be made on such date in the Applicable Currency and in immediately available funds, at the Notice Address and the Administrative Agent will make available to the applicable Borrower at its notice address specified on Schedule 12.3 or as otherwise provided pursuant to the terms of this Agreement the aggregate of the amounts so made available by the Lenders not later than 2:00 p.m. (New York City time or, as applicable, local time in the financial center for the applicable Alternative Currency (with respect to Loans denominated in an Alternative Currency)), or in the case of Swing Line Loans, 3:30 p.m. (New York City time, or local time in the financial center for the applicable Alternative Currency in the case of European Swing Line Loan). Unless the Administrative Agent shall have been notified by any Lender at least 1

 

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Business Day prior to the date of Borrowing that such Lender does not intend to make available to the Administrative Agent such Lender’s portion of the Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender on the date of Borrowing, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the applicable Borrower and, if so notified, the applicable Borrower shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from the applicable Borrower interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to such Borrower to the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to the rate for Base Rate Loans or Eurocurrency Loans, as the case may be, applicable during the period in question; provided, however, that any interest paid to the Administrative Agent in respect of such corresponding amount shall be credited against interest payable by such Borrower to such Lender under Section 3.1 in respect of such corresponding amount. Any amount due hereunder to the Administrative Agent from any Lender which is not paid when due shall bear interest payable by such Lender, from the date due until the date paid, at the Federal Funds Rate for amounts in Dollars (or at the Administrative Agent’s cost of funds for amounts in any Alternative Currency) for the first three days after the date such amount is due and thereafter at the Federal Funds Rate (or such cost of funds rate) plus 1%, together with the Administrative Agent’s standard interbank processing fee. Further, such Lender shall be deemed to have assigned any and all payments made of principal and interest on its Loans, amounts due with respect to its Letters of Credit (or its participations therein) and any other amounts due to it hereunder first to the Administrative Agent to fund any outstanding Loans made available on behalf of such Lender by the Administrative Agent pursuant to this Section 2.7 until such Loans have been funded (as a result of such assignment or otherwise) and then to fund Loans of all Lenders other than such Lender until each Lender has outstanding Loans equal to its Pro Rata Share of all Loans (as a result of such assignment or otherwise). Such Lender shall not have recourse against any Borrower with respect to any amounts paid to the Administrative Agent or any Lender with respect to the preceding sentence; provided that such Lender shall have full recourse against the applicable Borrower to the extent of the amount of such Loans it has so been deemed to have made. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights which any Borrower may have against the Lender as a result of any failure to fund or other default by such Lender hereunder.

 

2.8                               Utilization of Multicurrency Revolving Commitments in an Alternative Currency.

 

(a)                       The Administrative Agent will determine the Dollar Equivalent amount with respect to any (i) Borrowing of Multicurrency Revolving Loans comprised of Alternative Currency Loans as of the requested date of Borrowing, (ii) outstanding Alternative

 

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Currency Loans that are Multicurrency Revolving Loans as of the last Business Day of each month and (iii) outstanding Alternative Currency Loans on the date of any prepayment pursuant to Section 4.3 or 4.4 (each such date under clauses (i) through (iii), a “Computation Date”). Upon receipt of any Notice of Borrowing of Multicurrency Revolving Loans, the Administrative Agent will promptly notify each Multicurrency Revolving Lender thereof and of the amount of such Lender’s Multicurrency Revolver Pro Rata Share, of the Borrowing. In the case of a Borrowing comprised of Alternative Currency Loans, such notice will provide the approximate amount of each Lender’s Multicurrency Revolver Pro Rata Share of the Borrowing, and Administrative Agent will, upon the determination of the Dollar Equivalent amount of the Borrowing as specified in the Notice of Borrowing, promptly notify each Lender of the exact amount of such Lender’s Multicurrency Revolver Pro Rata Share of the Borrowing.

 

(b)                                 Company and each Other Subsidiary Borrower shall be entitled to request that the Multicurrency Revolving Loans hereunder also be permitted to be made in any other lawful currency (other than Dollars), in addition to the currencies specified in the definition of “Alternative Currency” herein, that in the reasonable opinion of each of the Multicurrency Revolving Lenders is at such time freely traded in the offshore interbank foreign exchange markets and is freely transferable and freely convertible into Dollars (an “Agreed Alternative Currency”). Company or such Other Subsidiary Borrower shall deliver to the Administrative Agent any request for designation of an Agreed Alternative Currency in accordance with Section 12.3, to be received by the Administrative Agent not later than 11:00 a.m. (New York City time) at least 10 Business Days in advance of the date of any Borrowing hereunder proposed to be made in such Agreed Alternative Currency. Upon receipt of any such request the Administrative Agent will promptly notify the Multicurrency Revolving Lenders thereof and each Multicurrency Revolving Lender will use its best efforts to respond to such request within 2 Business Days of receipt thereof. Each Multicurrency Revolving Lender may grant or accept such request in its sole discretion.

 

(c)                                  In the case of a proposed Borrowing comprised of Multicurrency Revolving Loans in an Agreed Alternative Currency, the applicable Multicurrency Revolving Lenders shall be under no obligation to make such Loans in the requested Agreed Alternative Currency as part of such Borrowing if the Administrative Agent has received notice from any of the applicable Multicurrency Revolving Lenders by 3:00 p.m. (New York City time) 3 Business Days prior to the day of such Borrowing that such Lender cannot provide Loans in the requested Agreed Alternative Currency, in which event the Administrative Agent will give written notice to the applicable Borrower no later than 9:00 a.m. (London time) on the second Business Day prior to the requested date of such Borrowing that the Borrowing in the requested Agreed Alternative Currency is not then available, and notice thereof also will be given promptly by the Administrative Agent to the Multicurrency Revolving Lenders. If the Administrative Agent shall have so notified the applicable Borrower that any such Borrowing in a requested Agreed Alternative Currency is not then available, the applicable Borrower may, by notice to the Administrative Agent not later than 2:00 p.m. (London time) 2 Business Days prior to the requested date of such Borrowing, withdraw the Notice of Borrowing relating to such requested Borrowing. If a Borrower does so withdraw such Notice of Borrowing, the Borrowing requested therein shall not occur and the Administrative Agent will promptly so notify each Multicurrency Revolving Lender. If a Borrower does not so withdraw such Notice of Borrowing, the

 

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Administrative Agent will promptly so notify each Multicurrency Revolving Lender and such Notice of Borrowing shall be deemed to be a Notice of Borrowing that requests a Borrowing comprised of Eurocurrency Loans in Dollars with an Interest Period of one month in an aggregate amount equal to the Dollar Equivalent of the originally requested Borrowing in the Notice of Borrowing; and in such notice by the Administrative Agent to each Lender will state such aggregate amount of such Borrowing in Dollars and such Lender’s Pro Rata Share thereof.

 

(d)                                 In the case of a proposed continuation of Multicurrency Revolving Loans denominated in an Agreed Alternative Currency for an additional Interest Period pursuant to Section 2.6, the Multicurrency Revolving Lenders shall not be under any obligation to continue such Loans if the Administrative Agent has received notice from any of the Multicurrency Revolving Lenders or by 4:00 p.m. (New York City time) 4 Business Days prior to the day of such continuation that such Lender cannot continue to provide Loans in the Agreed Alternative Currency, in which event the Administrative Agent will give notice to the applicable Borrower not later than 9:00 a.m. (New York City time) on the third Business Day prior to the requested date of such continuation that the continuation of such Loans in the Agreed Alternative Currency is not then available, and notice thereof also will be given promptly by the Administrative Agent to the Multicurrency Revolving Lenders. If the Administrative Agent shall have so notified the applicable Borrower that any such continuation of Loans is not then available, any Notice of Conversion or Continuation with respect thereto shall be deemed withdrawn and such Loans shall be redenominated into Eurocurrency Loans in Dollars with an Interest Period of one month with effect from the last day of the Interest Period with respect to any such Loans. The Administrative Agent will promptly notify the applicable Borrower and the Multicurrency Revolving Lenders of any such redenomination and in such notice by the Administrative Agent to each Lender will state the aggregate Dollar Equivalent amount of the redenominated Alternative Currency Loans as of the Computation Date with respect thereto and such Lender’s Multicurrency Revolver Pro Rata Share thereof.

 

(e)                                  If at any time an Alternative Currency Loan denominated in a currency other than Euros is outstanding, the relevant Alternative Currency is replaced as the lawful currency of the country that issued such Alternative Currency (the “Issuing Country”) by the Euro so that all payments are to be made in the Issuing Country in Euros and not in the Alternative Currency previously the lawful currency of such country, then such Alternative Currency Loan shall be automatically converted into an Alternative Currency Loan denominated in Euros in a principal amount equal to the amount of Euros into which the principal amount of such Alternative Currency Loan would be converted pursuant to the EMU Legislation and thereafter no further Alternative Currency Loans will be available in such Alternative Currency, with the basis of accrual of interest, notice requirements and payment offices with respect to such Alternative Currency Loan to be that consistent with the convention and practices in the Euro-zone interbank market for Euro denominated loans. Without prejudice and in addition to any method of conversion or rounding prescribed by any relevant EMU Legislation, (i) each reference in this Agreement to a minimum amount (or an integral multiple thereof) in such Alternative Currency shall be replaced by a reference to such reasonably comparable and convenient amount (or an integral multiple thereof) in Euros as the Administrative Agent may from time to time specify and (ii) this Agreement shall be subject to such other reasonable

 

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changes of construction as the Administrative Agent may from time to time specify to be necessary or appropriate to reflect the introduction of or changeover to Euros.

 

(f)                                   In each case, to the maximum extent permitted under applicable law, the applicable Borrowers from time to time, at the request of any Lender or any Facing Agent, shall pay to such Lender or Facing Agent the amount of any losses, damages, liabilities, claims, reduction in yield, additional expense, increased cost, reduction in any amount payable, reduction in the effective return of its capital, the decrease or delay in the payment of interest or any other return forgone as reasonably determined by such Lender or Facing Agent or its affiliates with respect to an Alternative Currency Loan affected by Section 2.8(e) as a result of the tax or currency exchange resulting from the introduction, changeover to or operation of the Euro in any applicable nation or Eurocurrency market. A certificate of any such Lender or the respective Facing Agent setting forth such Lender’s or such Facing Agent’s determination of the amount or amounts necessary to compensate such Lender or such Facing Agent shall be delivered to the Administrative Agent for delivery to the applicable Borrower and shall be conclusive absent manifest error so long as such determination is made by such Lender or such Facing Agent on a reasonable basis. The applicable Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

 

(g)                                  Notwithstanding anything herein to the contrary, during the existence of an Event of Default, upon the request of the Majority Lenders under the Multicurrency Revolving Facility, all or any part of any outstanding Multicurrency Revolving Loans that are Alternative Currency Loans shall be redenominated and converted into Base Rate Loans in Dollars with effect from the last day of the Interest Period with respect to any such Alternative Currency Loans. The Administrative Agent will promptly notify Company of any such redenomination and conversion request.

 

2.9                               Additional Facilities.

 

(a)                                 Borrowers shall have the right at any time so long as no Unmatured Event of Default or Event of Default then exists (except, in the case of Additional Facilities incurred to finance a Limited Condition Acquisition, in which case such requirement shall be limited to customary “Funds Certain Provisions” or “SunGard” provisions, if otherwise agreed to by the Lenders providing such Additional Facilities) and from time to time after the Closing Date, to obtain and incur from one or more existing Lenders and/or other Persons that are Eligible Assignees and which, in each case, agree to provide commitments or to make loans to the applicable Borrower in an aggregate principal amount not to exceed the Dollar Equivalent of the Additional Facility Limit, which loans may be incurred as (i) one or more tranches of additional term loans available to one or more Borrowers (the “Additional Term Loans”) as allocated by Company and the Lenders providing such Additional Term Loans under a facility that would provide that the Additional Term Loans would have a Weighted Average Life to Maturity of not less than the existing Term Loans with the then longest Weighted Average Life to Maturity and a final maturity no earlier than the latest existing Term Maturity Date; provided that the terms and conditions of any Additional Term Loans, taken as a whole, shall be substantially similar to, or less favorable to the Lenders or New Lenders providing such Additional Term Loans, than those applicable to the existing Term Facilities (other than as to

 

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term, pricing, fees and other economic terms), except for covenants and other provisions applicable only to periods after the earlier to occur of the date that all other Term Loans are paid in full (other than contingent indemnification obligations not then due) and the latest Term Maturity Date at the time such Additional Term Loans are incurred (without regard to the maturity date for such Additional Term Loans); provided, however, that (X) to the extent the terms and conditions of such Additional Term Loans are not consistent with one or more of the existing Term Facilities (except to the extent permitted pursuant to the immediately preceding proviso or clause (Y) below), such terms and conditions may differ if reasonably satisfactory to Company and the Administrative Agent, or (Y) in the event such terms are more favorable (taken as a whole) to the Lenders or New Lenders providing such Additional Term Loans, (A) the applicable Borrowers shall have the right to unilaterally provide the existing Term Lenders with additional rights and benefits and the “substantially similar to” or not “less favorable” requirement of the preceding proviso and compliance therewith shall be determined after giving effect to such additional rights and benefits and (B) to the extent that an additional financial maintenance covenant is added for the benefit of the Lenders under such Additional Term Loans, then such financial maintenance covenant shall be added to the Term Facilities that remain outstanding after the issuance or incurrence of such Additional Term Loans (to the extent not already benefitting from any similar financial maintenance covenant and to the extent that such financial maintenance covenant would be effective prior to the latest Term Maturity Date for such Term Facilities) for the benefit of the Term Lenders thereunder (it being understood and agreed that Company may, at its option, deliver a certificate to the Administrative Agent certifying that the requirements of the provisos to this clause (i) have been satisfied at least 5 Business Days prior to the incurrence of such Indebtedness, and such certification shall be conclusive evidence that such requirements have been satisfied unless the Administrative Agent provides notice to Company of its objection during such 5 Business Day period (including a reasonable description of the basis upon which it objects)), (ii) increases to one or more existing Term Facilities, (iii) increases to the Multicurrency Revolving Facility or to any Additional Revolving Facility, or (iv) one or more additional tranches of revolving commitments (the “Additional Revolving Facility”) as allocated by Company and the Lenders providing commitments in respect of such Additional Revolving Facility under a facility that would provide that the Additional Revolving Facility would have a final maturity no earlier than the latest Revolver Termination Date; provided that the terms and conditions of any Additional Revolving Facility, taken as a whole, shall be substantially similar to, or less favorable to the Lenders or New Lenders providing such Additional Revolving Facility, than those applicable to the Multicurrency Revolving Facility (other than as to term, pricing, fees and other economic terms) except for covenants and other provisions applicable only to periods after the latest Revolver Termination Date at the time such Additional Revolving Facility is obtained (without regard to the maturity date for such Additional Revolving Facility); provided, however, that (X) to the extent the terms and conditions of such Additional Revolving Facility are not consistent with one or more of the existing Multicurrency Revolving Facility or any existing Additional Revolving Facilities (except to the extent permitted pursuant to the immediately preceding proviso or clause (Y) below), such terms and conditions may differ if reasonably satisfactory to Company and the Administrative Agent, or (Y) in the event such terms are more favorable (taken as a whole) to the Lenders or New Lenders providing such Additional Revolving Facility, (A) the applicable Borrowers shall have the right to unilaterally provide the existing Multicurrency

 

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Revolving Lenders or existing Lender under an existing Additional Revolving Facility with additional rights and benefits and the “substantially similar to” or not “less favorable” requirement of the preceding proviso and compliance therewith shall be determined after giving effect to such additional rights and benefits and (B) to the extent that an additional financial maintenance covenant is added for the benefit of the Lenders under such Additional Revolving Facility, then such financial maintenance covenant shall be added to the existing Multicurrency Revolving Facility and any existing Additional Revolving Facilities that remain outstanding after the commitments under such Additional Revolving Facility become effective (to the extent not already benefitting from any similar financial maintenance covenant and to the extent that such financial maintenance covenant would be effective prior to the latest Revolver Termination Date for such Facilities) for the benefit of the existing Multicurrency Revolving Lenders thereunder or existing Lenders under such existing Additional Revolving Facilities (it being understood and agreed that Company may, at its option, deliver a certificate to the Administrative Agent certifying that the requirements of the provisos to this clause (iv) have been satisfied at least 5 Business Days prior to the incurrence of such Indebtedness, and such certification shall be conclusive evidence that such requirements have been satisfied unless the Administrative Agent provides notice to Company of its objection during such 5 Business Day period (including a reasonable description of the basis upon which it objects)) (clauses (i) through (iv) collectively, “Additional Facilities”). Any Additional Facility shall rank pari passu with any then-existing tranche of Loans and/or Multicurrency Revolving Commitments and/or Additional Facility Commitments in right of payment and shall (x) rank pari passu with any then-existing tranche of Loans incurred by and/or Multicurrency Revolving Commitments and/or Additional Facility Commitments made available to the same Borrower in right of guarantees and security and (y) be subject to the CAM Exchange (and the holders of any Indebtedness or commitments in respect of such Additional Facility shall have become a party to the Re-Allocation Agreement, by execution and delivery of a joinder thereto or other arrangement reasonably acceptable to the Administrative Agent). No Additional Facility may be (x) guaranteed by any Person which is not a Credit Party or (y) secured by any assets other than the Collateral (other than any Additional Revolving Facility incurred by an Other Subsidiary Borrower that is not a U.S. Credit Party which becomes a Borrower after the date of this Agreement, which may be guaranteed by Persons that are not Credit Parties on the date when such Additional Revolving Facility in favor of such Other Subsidiary Borrower is established and secured by collateral belonging to such Credit Parties so long as the Lenders that agree to provide such Additional Revolving Facility enter into the CAM Exchange. Each New Lender that becomes a Lender with respect to a tranche of Additional Facilities pursuant to this Section 2.9 hereby acknowledges and agrees that the term of each Term Facility, the Multicurrency Revolving Facility and each sub-facility thereof may be extended or replaced and that each New Lender, solely with respect to the Additional Facilities held by such New Lender, agrees in advance to any changes made to this Agreement and the other Loan Documents in order to implement such extension or replacement (including changes with respect to pricing, fees and other economic terms relating solely to such extended or replaced facility or facilities) as may be reasonably proposed to be made by Company (Company’s signature to be conclusive evidence of such reasonability); provided that no such extension of an Additional Facility to which a New Lender is a party shall apply to such New Lender without its consent. Each New Lender hereby agrees to take such actions and execute and deliver such amendments, agreements, instruments or documents as the

 

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Administrative Agent may reasonably request to give effect to the preceding sentence; provided that the foregoing provision shall not be construed to require a New Lender to execute any amendment, agreement, instrument or document which contains changes other than those relating solely to such extended or replaced facility or facilities.

 

(b)                                 In the event that any Borrower desires to create an Additional Facility, such Borrower will enter into an amendment with the lenders providing such Additional Facility (who shall by execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Additional Facility, which amendment shall set forth any terms and conditions of the Additional Facility not covered by this Agreement as agreed by the applicable Borrower and such Lenders, and shall provide for the issuance of promissory notes to evidence the Additional Facility if requested by the Lenders making advances under the Additional Facility, with such amendment to be in form and substance reasonably acceptable to the Administrative Agent and consistent with the terms of this Section 2.9(b). No consent of any Lender (other than any Lender making loans or whose commitment is increased under the Additional Facility) is required to permit the Loans contemplated by this Section 2.9 or the aforesaid amendment to effectuate the Additional Facility. This Section 2.9(b) shall supersede any other provisions contained in the Loan Documents, including, without limitation, Section 12.1, to the contrary.

 

(c)                                  Upon implementation of any new Additional Revolving Facility,

 

(i)                       if such Additional Revolving Facility is implemented either by increasing the amount of then-existing Multicurrency Revolving Commitments or by increasing the amount of then-existing Additional Facility Commitments in respect of an Additional Revolving Facility (rather than by implementing a new Additional Revolving Facility tranche), each Lender under such existing Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant New Lender, and each relevant New Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding Letters of Credit issued under such Facility such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each New Lender’s) participations hereunder in Letters of Credit under such Facility shall be held on a pro rata basis on the basis of their respective Multicurrency Revolving Commitments or Additional Facility Commitments in respect of an Additional Revolving Facility (after giving effect to any increase in such Commitments pursuant to this Section 2.9) and (ii) each existing Lender under the applicable Multicurrency Revolving Facility or Additional Revolving Facility shall assign Loans made by them under that Facility to certain other Lenders under that Facility (including the New Lenders providing the relevant new Additional Revolving Facility), and such other Lenders under that Facility (including the New Lenders providing the relevant new Additional Revolving Facility) shall purchase such Loans, in each case to the extent necessary so that all of the Lenders under that Facility participate in each outstanding borrowing of Loans under that Facility pro rata on the basis of their respective Multicurrency Revolving Commitments or Additional Facility Commitments in respect of an Additional Revolving Facility (after giving effect to any increase in such Commitments pursuant to this Section 2.9); it being understood and agreed that the

 

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minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (i); and

 

(ii)                    if such Additional Revolving Facility is implemented pursuant to a request to add one or more new Additional Revolving Facility tranches, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on the then-existing Multicurrency Revolving Facility or then-existing Additional Revolving Facility and such new Additional Revolving Facility, (B) repayments required upon the Maturity Date of the then-existing Multicurrency Revolving Facility or then-existing Additional Revolving Facility and such new Additional Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (3) below)) of Loans under any revolving Facility after the effective date of Additional Facility Commitments in respect of such Additional Revolving Facility shall be made on a pro rata basis between the then-outstanding Multicurrency Revolving Facility (if any), the new Additional Revolving Facility and any other then-outstanding Additional Revolving Facility (if any), (2) any swing line loans made, or letters of credit issued, as applicable, under any revolving Facility after the effective date of Additional Facility Commitments in respect of such Additional Revolving Facility, shall be made or issued to the extent reasonably practicable on a pro rata basis between the then-outstanding Multicurrency Revolving Facility (if any), the new Additional Revolving Facility and any other then-outstanding Additional Revolving Facility (if any) and (3) the permanent repayment of Loans with respect to, and termination of commitments under, such new Additional Revolving Facility shall be made on a pro rata basis between the then-outstanding Multicurrency Revolving Facility, the new Additional Revolving Facility and any other then-outstanding Additional Revolving Facility (if any), except that the Borrower under such new Additional Revolving Facility shall be permitted to permanently repay and terminate commitments under such Additional Revolving Facility on a greater than pro rata basis than any other Revolving Facility that has a later Maturity Date than such Additional Revolving Facility either at the time of incurrence of such Additional Revolving Facility or on the date that such Revolving Facility is subsequently incurred after the incurrence of such new Additional Revolving Facility.

 

2.10                        Letters of Credit.

 

(a)                                 Letters of Credit Commitments. Subject to and upon the terms and conditions herein set forth, Company may request on behalf of itself or any Other Subsidiary Borrower, that any Facing Agent issue, at any time and from time to time during the Multicurrency Revolving Commitment Period, for the account of such Borrower and for the benefit of any holder (or any trustee, agent or other similar representative for any such holder) of obligations of one or more of the Borrowers, any of their Subsidiaries and any Unrestricted Entities (in the case of Unrestricted Entities, subject to the limitation on Investments in Unrestricted Entities set forth in Section 8.7(k)), a Letter of Credit, in a form customarily used by such Facing Agent, or in such other form as has been approved by such Facing Agent in support of such obligations; provided, however, that no Letter of Credit shall be issued the Stated

 

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Amount of which, when added to the LC Obligations (exclusive of Unpaid Drawings relating to Letters of Credit which are repaid on or prior to the date of, and prior to the issuance of, the respective Letter of Credit) at such time, would exceed the lesser of (1) the Dollar Equivalent of $250,000,000 or (2) when added to the Dollar Equivalent of the aggregate principal amount of all Multicurrency Revolving Loans and Swing Line Loans, then outstanding with respect to all Borrowers, the Multicurrency Revolving Commitments at such time; provided, further, that (x) the aggregate face amount of all Letters of Credit issued and outstanding by any Facing Agent shall not exceed such Facing Agent’s Applicable LC Sublimit and (y) the aggregate face amount of all Letters of Credit issued and outstanding for the account of any Borrower shall not exceed, when added without duplication to the Dollar Equivalent of the aggregate principal amount of all Multicurrency Revolving Loans, LC Obligations and Swing Line Loans of such Borrower, such Borrower’s Available Revolver Sublimit. Notwithstanding anything to the contrary in this Section 2.10, at the request of the applicable requesting Borrower, any Letter of Credit may contain a statement to the effect that such Letter of Credit is issued for the account of Company, any of its Subsidiaries or any Unrestricted Entity; provided that notwithstanding such statement, such requesting Borrower shall be the actual account party for all purposes of the Loan Documents for such Letter of Credit and such statement shall not affect such requesting Borrower’s reimbursement obligations hereunder with respect to such Letter of Credit.

 

(b)                                 Obligation of Facing Agent to Issue Letter of Credit. Each Facing Agent agrees (subject to the terms and conditions contained herein), at any time and from time to time on or after the Closing Date and prior to the Revolver Termination Date, following its receipt of the respective Notice of Issuance, to issue for the account of Company or any Other Subsidiary Borrower, but subject to the last sentence of Section 2.10(a), one or more Letters of Credit in support of such obligations of one or more of the Borrowers, any of their Subsidiaries and any Unrestricted Entities as is permitted to remain outstanding; provided that the respective Facing Agent shall be under no obligation to issue any Letter of Credit of the types described above if at the time of such issuance:

 

(i)                       any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Facing Agent from issuing such Letter of Credit or any Requirement of Law applicable to such Facing Agent from any Governmental Authority with jurisdiction over such Facing Agent shall prohibit, or request that such Facing Agent refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Facing Agent with respect to such Letter of Credit any restriction or reserve or capital requirement (for which such Facing Agent is not otherwise compensated) not in effect on the date hereof, or any unreimbursed loss, cost or expense which was not applicable, in effect or known to such Facing Agent as of the date hereof and which such Facing Agent in good faith deems material to it; or

 

(ii)                    the issuance of such Letter of Credit would violate one or more policies of such Facing Agent applicable to letters of credit generally.

 

Notwithstanding the foregoing, (i) except as set forth on Schedule 2.10(j) or as Company and the applicable Facing Agent otherwise agree, each Letter of Credit shall have an expiry date

 

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occurring not later than one year after such Letter of Credit’s date of issuance; provided that any Letter of Credit may be automatically extendable for periods of up to one year so long as such Letter of Credit provides that the respective Facing Agent retains an option satisfactory to such Facing Agent, to terminate such Letter of Credit within a specified period of time prior to each scheduled extension date; (ii) no Letter of Credit shall have an expiry date occurring later than the Business Day immediately preceding the Revolver Termination Date for the Facility under which such Letter of Credit was issued unless otherwise agreed by the respective Facing Agent; (iii) each Letter of Credit shall be denominated in Dollars or an Alternative Currency and be payable on a sight basis; (iv) the Stated Amount of each Letter of Credit shall not be less than the Dollar Equivalent of $100,000 or such lesser amount as is acceptable to the respective Facing Agent; and (v) no Facing Agent will issue any Letter of Credit after it has received written notice from Company or the Required Lenders stating that an Event of Default or Unmatured Event of Default exists until such time as such Facing Agent shall have received a written notice of (x) rescission of such notice from the party or parties originally delivering the same or (y) a waiver of such Event of Default or Unmatured Event of Default by the Required Lenders (or any other amount of Lenders to the extent required by Section 12.1).

 

(c)                                  Procedures for Issuances and Amendments of Letters of Credit. Whenever Company or any Other Subsidiary Borrower desires that a Letter of Credit be issued, Company shall give the Administrative Agent and the respective Facing Agent written notice thereof prior to 1:00 p.m. (New York City time) at least 5 Business Days (or such shorter period as may be acceptable to such Facing Agent) prior to the proposed date of issuance (which shall be a Business Day) which written notice shall be substantially in the form of Exhibit 2.10(c) or such other form as the respective Facing Agent may agree (each, a “Notice of Issuance”) and may be submitted via facsimile or other electronic image scan transmission (e.g., “pdf” or “tif” via email) to the respective Facing Agent (who may rely upon such facsimile or electronic image scan transmission as if it were an original thereof). Each such notice shall specify (A) the proposed issuance date and expiration date, (B) the name(s) of each obligor with respect to such Letter of Credit, (C) the applicable Borrower as the account party, and any other account parties consistent with the terms of the last sentence of Section 2.10(a), (D) the name and address of the beneficiary, (E) the Stated Amount in Dollars or the Alternative Currency of such proposed Letter of Credit and (F) the purpose of such Letter of Credit. In addition, each Notice of Issuance may contain a general description of any specific terms and conditions to be included in such proposed Letter of Credit (all of which terms and conditions shall be acceptable to the respective Facing Agent). Unless otherwise specified, all Standby Letters of Credit will be governed by the UCP or ISP and all Bank Guarantees will be governed by the Uniform Rules for Demand Guarantees, in each case, as in effect on the date of issuance of such Letter of Credit. Each Notice of Issuance shall include any other documents as the respective Facing Agent customarily requires in connection therewith to the extent notice of such other documents has been provided by the respective Facing Agent to the applicable Borrower prior to the date of such Notice of Issuance. From time to time while a Letter of Credit is outstanding and prior to the Revolver Termination Date for the Facility under which such Letter of Credit was issued, the applicable Facing Agent will, upon written request from Company or the applicable Borrower received by the Facing Agent (with a copy sent by Company or such Borrower to the Administrative Agent) at least 3 Business Days (or such shorter time as the Facing Agent and the Administrative Agent

 

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may agree in a particular instance in their sole discretion) prior to the proposed date of amendment, amend any Letter of Credit issued by it. Each such request for amendment of a Letter of Credit shall be made by facsimile or other electronic image scan transmission (e.g., “pdf” or “tif” via email), confirmed promptly in an original writing (each a “Letter of Credit Amendment Request”) and shall specify in form and detail reasonably satisfactory to the Facing Agent: (i) the Letter of Credit to be amended; (ii) the proposed date of amendment of the Letter of Credit (which shall be a Business Day); (iii) the nature of the proposed amendment; and (iv) such other matters as the Facing Agent may require. The Facing Agent shall be under no obligation to amend any Letter of Credit if: (A) the Facing Agent would have no obligation at such time to issue such Letter of Credit in its amended form under the terms of this Agreement, or (B) the beneficiary of any such Letter of Credit does not accept the proposed amendment to the Letter of Credit. Each Facing Agent shall, promptly after the issuance of or amendment or modification to a Letter of Credit, give the Administrative Agent and the applicable Borrower written notice of the issuance, amendment or modification of such Letter of Credit, accompanied by a copy of such issuance, amendment or modification. Promptly upon receipt of such notice, the Administrative Agent shall give each Multicurrency Revolving Lender written notice of such issuance, amendment or modification, and if so requested by any Multicurrency Revolving Lender, the Administrative Agent shall provide such Multicurrency Revolving Lender with copies of such issuance, amendment or modification.

 

(d)                                 Agreement to Repay Letter of Credit Payments.

 

(i)                       The applicable Borrower hereby agrees to reimburse the respective Facing Agent, by making payment to the Administrative Agent in immediately available funds in Dollars (or if such Unpaid Drawing was in an Alternative Currency, then in such Alternative Currency or, at the option of such Borrower, the Dollar Equivalent amount of such Unpaid Drawing in Dollars) at the Notice Address, for any payment or disbursement made by such Facing Agent under and in accordance with any Letter of Credit (each such amount so paid or disbursed until reimbursed, an “Unpaid Drawing”), no later than 1 Business Day after the date on which Company and the applicable Borrower receives notice of such payment or disbursement (the “Honor Date”), together with interest on the amount so paid or disbursed by such Facing Agent, to the extent not reimbursed prior to 12:00 Noon (New York City time) on the date of such payment or disbursement, from and including the date paid or disbursed by such Facing Agent to but excluding the date such Facing Agent is reimbursed therefor by the applicable Borrower at a rate per annum which shall be the Base Rate in effect from time to time plus the Applicable Base Rate Margin; provided, however, that anything contained in this Agreement to the contrary notwithstanding, (i) unless Company or the applicable Borrower shall have notified the Administrative Agent and the applicable Facing Agent prior to 10:00 a.m. (New York City time) on the Honor Date that the applicable Facing Agent will be reimbursed for the amount of such Unpaid Drawing with funds other than the proceeds of Multicurrency Revolving Loans, the applicable Borrower shall be deemed to have timely given a Notice of Borrowing to the Administrative Agent requesting each Multicurrency Revolving Lender to make Multicurrency Revolving Loans which are Base Rate Loans on the Honor Date in an amount equal to the Dollar Equivalent of the amount of such Unpaid Drawing and the

 

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Administrative Agent shall, if such Notice of Borrowing is deemed given, promptly notify the Lenders thereof and (ii) unless any of the events described in Section 10.1(e) or 10.1(f) shall have occurred and be continuing (in which event the procedures of Section 2.10(e) shall apply), each such Multicurrency Revolving Lender shall, on the Honor Date, make Multicurrency Revolving Loans which are Base Rate Loans in the amount of its Multicurrency Revolver Pro Rata Share of the Dollar Equivalent of such Unpaid Drawing, the proceeds of which shall be applied directly by the Administrative Agent to reimburse the applicable Facing Agent for the amount of such Unpaid Drawing; and provided, further, that if for any reason, proceeds of Multicurrency Revolving Loans are not received by the applicable Facing Agent on the Honor Date in an amount equal to the amount of the Dollar Equivalent of such Unpaid Drawing, the applicable Borrower shall reimburse the applicable Facing Agent, on the Business Day immediately following the Honor Date, in an amount in Same Day Funds equal to the excess of the amount of the Dollar Equivalent of such Unpaid Drawing over the Dollar Equivalent of the amount of such Multicurrency Revolving Loans, if any, which were so received, plus accrued interest on such amount at the rate set forth in Section 3.1(a); provided, however, that to the extent such amounts are not reimbursed prior to 12:00 Noon (New York City time) on the fifth Business Day following the date of payment or disbursement by the applicable Facing Agent, interest shall thereafter accrue on the amounts so paid or disbursed by such Facing Agent (and until reimbursed by the applicable Borrower) at a rate per annum which shall be the Base Rate in effect from time to time plus the Applicable Base Rate Margin plus an additional 2% per annum, such interest also to be payable on demand. The respective Facing Agent shall give Company and the applicable Borrower prompt written notice of each Drawing under any Letter of Credit; provided that the failure to give any such notice shall in no way affect, impair or diminish Company’s or any other Borrower’s obligations hereunder.

 

(ii)                    The Obligations of the applicable Borrower under this Section 2.10(d) to reimburse the respective Facing Agent with respect to drawings on Letters of Credit (each, a “Drawing”) (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances (including irrespective of:

 

(A)                 any lack of validity or enforceability of this Agreement or any of the other Loan Documents;

 

(B)                 the existence of any claim, setoff, defense or other defense to payment which any Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Collateral Agent, the Facing Agent, any LC Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction

 

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between any Borrower and the beneficiary named in any such Letter of Credit);

 

(C)                 any non-application or mis-application by the beneficiary of the proceeds of such Drawing;

 

(D)                 any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect to any statement therein being untrue or inaccurate in any respect; or

 

(E)                  the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents,

 

the respective Facing Agent’s only obligation to such Borrower being to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent under or in connection with any Letter of Credit if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to Company or any Lender.

 

(e)                                  Letter of Credit Participations.

 

(i)                       Immediately upon the issuance by any Facing Agent of any Letter of Credit, such Facing Agent shall be deemed to have sold and transferred to each Multicurrency Revolving Lender, other than such Facing Agent (each such Lender, in its capacity under this Section 2.10(e), a “LC Participant”), and each such LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from such Facing Agent, without recourse or warranty, an undivided interest and participation, to the extent of such Multicurrency Revolving Lender’s Multicurrency Revolver Pro Rata Share, in such Letter of Credit, each Drawing made thereunder and the obligations of the applicable Borrower under this Agreement with respect thereto (although Letter of Credit fees shall be payable directly to the Administrative Agent for the account of the LC Participant as provided in Section 2.10(g) and the LC Participants shall have no right to receive any portion of the facing fees), and any security therefor or guaranty pertaining thereto. Upon any change in the Multicurrency Revolving Commitments of the Multicurrency Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.10(e) to reflect the new Multicurrency Revolver Pro Rata Share of the assignor and assignee Lender or of all Lenders with Multicurrency Revolving Commitments, as the case may be.

 

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(ii)                    In determining whether to pay under any Letter of Credit, such Facing Agent shall have no obligation relative to the LC Participants other than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by any Facing Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for such Facing Agent any resulting liability to Company or any Lender.

 

(f)                                   Draws Upon Letter of Credit; Reimbursement Obligations.

 

(i)                       In the event that any Facing Agent makes any payment under any Letter of Credit issued by it and the applicable Borrower shall not have reimbursed such amount in full to such Facing Agent pursuant to Section 2.10(d) either with such Borrower’s own funds or with the proceeds of Multicurrency Revolving Loans made available by the Multicurrency Revolving Lenders, such Facing Agent shall promptly notify the Administrative Agent, and the Administrative Agent shall promptly notify each LC Participant of such failure, and each such LC Participant shall promptly and unconditionally pay to the Administrative Agent for the account of such Facing Agent, the amount of such LC Participant’s applicable Multicurrency Revolver Pro Rata Share of such payment in Dollars or, if in an Alternative Currency, in such Alternative Currency and in Same Day Funds; provided, however, that no LC Participant shall be obligated to pay to the Administrative Agent its applicable Multicurrency Revolver Pro Rata Share of such unreimbursed amount for any wrongful payment made by such Facing Agent under a Letter of Credit issued by it as a result of acts or omissions constituting a bad faith breach of its material obligations hereunder, willful misconduct or gross negligence as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction on the part of such Facing Agent. If the Administrative Agent so notifies any LC Participant required to fund a payment under a Letter of Credit prior to 11:00 a.m. (New York City time) or, in the case of a Letter of Credit denominated in an Alternative Currency, 11:00 a.m. (London time), on any Business Day, such LC Participant shall make available to the Administrative Agent for the account of the respective Facing Agent such LC Participant’s applicable Multicurrency Revolver Pro Rata Share of the amount of such payment on such Business Day in Same Day Funds. If and to the extent such LC Participant shall not have so made its applicable Multicurrency Revolver Pro Rata Share of the amount of such payment available to the Administrative Agent for the account of the respective Facing Agent, such LC Participant agrees to pay to the Administrative Agent for the account of such Facing Agent, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Administrative Agent for the account of such Facing Agent at the overnight Federal Funds Rate (or the applicable cost of funds with respect to amounts denominated in an Alternative Currency). The failure of any LC Participant to make available to the Administrative Agent for the account of the respective Facing Agent its applicable Multicurrency Revolver Pro Rata Share of any payment under any Letter of

 

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Credit issued by it shall not relieve any other LC Participant of its obligation hereunder to make available to the Administrative Agent for the account of such Facing Agent its applicable Multicurrency Revolver Pro Rata Share of any payment under any such Letter of Credit on the day required, as specified above, but no LC Participant shall be responsible for the failure of any other LC Participant to make available to Agent for the account of such Facing Agent such other LC Participant’s applicable Multicurrency Revolver Pro Rata Share of any such payment.

 

(ii)                    Whenever any Facing Agent receives a payment of a reimbursement obligation as to which the Administrative Agent has received for the account of such Facing Agent any payments from the LC Participants pursuant to this Section 2.10(f), such Facing Agent shall pay to the Administrative Agent and the Administrative Agent shall pay to each LC Participant which has paid its Multicurrency Revolver Pro Rata Share thereof, in Dollars or, if in an Alternative Currency, in such Alternative Currency and in Same Day Funds, an amount equal to such LC Participant’s Multicurrency Revolver Pro Rata Share of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.

 

(iii)                 The obligations of the LC Participants to make payments to each Facing Agent with respect to Letters of Credit issued by it shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances (although nothing in this clause (iii) shall constitute a waiver of any claims by an LC Participant against a Facing Agent that are determined by a final and non-appealable judgment rendered by a court of competent jurisdiction to have resulted from the bad faith breach of its material obligations hereunder, gross negligence or willful misconduct of such Facing Agent):

 

(A)                 any lack of validity or enforceability of this Agreement or any of the other Loan Documents;

 

(B)                 the existence of any claim, setoff, defense or other right which any Borrower or any of its Subsidiaries may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any LC Participant, or any other Person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between any Borrower and the beneficiary named in any such Letter of Credit);

 

(C)                 any draft, certificate or any other document presented under any Letter of Credit proving to be

 

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forged, fraudulent, invalid or insufficient in any respect to any statement therein being untrue or inaccurate in any respect;

 

(D)                 the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or

 

(E)                  the occurrence or continuance of any Event of Default or Unmatured Event of Default.

 

(g)                                  Fees for Letters of Credit.

 

(i)                       Facing Agent Fees. Company agrees to pay in Dollars (or if the applicable Letter of Credit is in an Alternative Currency, then in such Alternative Currency or, at the option of Company, the Dollar Equivalent amount in Dollars) the following amount to the respective Facing Agent with respect to the Letters of Credit issued by it hereunder:

 

(A)                 with respect to payments made under any Letter of Credit, interest, payable on demand, on the amount paid by such Facing Agent in respect of each such payment from the date of the payments through the date such amount is reimbursed by the applicable Borrower (including any such reimbursement out of the proceeds of Multicurrency Revolving Loans at a rate determined in accordance with the terms of Section 2.10(d)(i));

 

(B)                 with respect to the issuance or amendment of each Letter of Credit and each payment made thereunder, reasonable documentary and processing charges in accordance with such Facing Agent’s standard schedule for such charges in effect at the time of such issuance, amendment, transfer or payment, as the case may be; and

 

(C)                 a facing fee equal to one-eighth of 1% per annum of the Stated Amount of outstanding and undrawn LC Obligations payable in arrears on each Quarterly Payment Date and on the Revolver Termination Date for the Facility under which such Letter of Credit was issued and thereafter, on demand together with customary issuance and payment charges; provided that a minimum fee of the Dollar Equivalent of $500.00 per annum shall be payable per Letter of Credit.

 

(ii)                    Participating Lender Fees. Company agrees to pay in Dollars (or if the applicable Letter of Credit is in an Alternative Currency, then in such Alternative Currency or, at the option of Company, the Dollar Equivalent amount in

 

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Dollars) to the Administrative Agent for distribution to each participating Lender in respect of all Letters of Credit outstanding such Lender’s Multicurrency Revolver Pro Rata Share of a commission equal to the then Applicable Eurocurrency Margin for Multicurrency Revolving Loans with respect to the Effective Amount of such outstanding Letters of Credit (the “LC Commission”), payable in arrears on and through each Quarterly Payment Date, on the Revolver Termination Date for the Facility under which such Letter of Credit was issued and thereafter, on demand. The LC Commission shall be computed on a daily basis from the first day of issuance of each Letter of Credit and on the basis of the actual number of days elapsed over a year of 360 days.

 

Promptly upon receipt by the respective Facing Agent or the Administrative Agent of any amount described in clause (i)(A) or (ii) of this Section 2.10(g), such Facing Agent or Administrative Agent shall distribute to each Lender that has reimbursed such Facing Agent in accordance with Section 2.10(d) its Multicurrency Revolver Pro Rata Share of such amount. Amounts payable under clause (i)(B) and (C) of this Section 2.10(g) shall be paid directly to such Facing Agent.

 

(h)                                 Indemnification. In addition to amounts payable as elsewhere provided in this Agreement, Company hereby agrees to protect, indemnify, pay and hold each Facing Agent harmless from and against any and all claims, demands, liabilities, damages, losses, reasonable and documented out-of-pocket costs, charges and expenses (including reasonable and documented out-of-pocket attorneys’ fees, costs and disbursements) (other than for Taxes, which shall be covered by Section 4.7) which any Facing Agent may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of the Letters of Credit, or (ii) the failure of any Facing Agent to honor a Drawing under any Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority (all such acts or omissions herein called “Government Acts”); provided, however, that no Facing Agent shall have the right to be indemnified hereunder to the extent that a court of competent jurisdiction by final and non-appealable judgment determines that such losses, claims, demands, damages, penalties, obligations, costs, charges, expenses or liabilities have resulted from the bad faith breach of its material obligations hereunder, gross negligence or willful misconduct of such Facing Agent, and that nothing contained herein shall affect the express contractual obligations of the Facing Agents to Borrowers contained herein. As between Borrowers and each Facing Agent, Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit issued by any Facing Agent by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, each Facing Agent shall not be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of or any Drawing under such Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of any such Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph,

 

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telex or otherwise, whether or not they be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a Drawing under any such Letter of Credit or of the proceeds thereof; (vii) for the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any Drawing under such Letter of Credit; and (viii) for any consequences arising from causes beyond the control of each Facing Agent, including, without limitation, any Government Acts. None of the above shall affect, impair, or prevent the vesting of any of each Facing Agent’s rights or powers hereunder.

 

In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by any Facing Agent under or in connection with the Letters of Credit issued by it or the related certificates, if taken or omitted in good faith or in accordance with the practice stated in the UCP or the ISP and in the absence of a bad faith breach of its material obligations hereunder, gross negligence or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not put any Facing Agent under any resulting liability to any Borrower or any Lender.

 

Notwithstanding anything to the contrary contained in this Agreement, no Credit Party shall have any obligation to indemnify any Facing Agent in respect of any liability incurred by such Facing Agent to the extent arising out of the bad faith breach of its material obligations hereunder, gross negligence or willful misconduct of such Facing Agent. The right of indemnification in the first paragraph of this Section 2.10(h) shall not prejudice any rights that any Borrower may otherwise have against each Facing Agent with respect to a Letter of Credit issued hereunder.

 

(i)                                     [Reserved.]

 

(j)                                    Outstanding Letters of Credit. The letters of credit set forth under the caption “Letters of Credit outstanding on the Closing Date” on Schedule 2.10(j) annexed hereto and made a part hereof were issued pursuant to the Existing 2015 Credit Agreement and remain outstanding as of the Closing Date (the “Outstanding Letters of Credit”). Each Borrower, each Facing Agent and each of the Lenders hereby agree that on the Closing Date, the Outstanding Letters of Credit, for all purposes under this Agreement, shall be deemed to be Letters of Credit governed by the terms and conditions of this Agreement. Each Lender agrees to participate in each Outstanding Letter of Credit issued by any Facing Agent in an amount equal to its Multicurrency Revolver Pro Rata Share of the Stated Amount of such Outstanding Letter of Credit.

 

(k)                                 Defaulting Lenders. Notwithstanding anything to the contrary contained in this Section 2.10, no Facing Agent shall be obligated to issue any Letter of Credit at a time when any other Lender is a Defaulting Lender, unless such Facing Agent has entered into arrangements satisfactory to it to eliminate such Facing Agent’s Fronting Exposure after giving effect to Section 4.1(b), including by Cash Collateralizing such Defaulting Lender’s Multicurrency Revolving Commitment Percentage of the liability with respect to such Letter of Credit. Any such Cash Collateral shall be deposited in a separate interest bearing account with

 

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the Administrative Agent, subject to the exclusive dominion and control of the Administrative Agent, as collateral (solely for the benefit of such Facing Agent) for the payment and performance of each Defaulting Lender’s Multicurrency Revolving Commitment Percentage of outstanding Letters of Credit. Moneys in such account shall be applied by the Administrative Agent to reimburse such Facing Agent immediately for each Defaulting Lender’s Multicurrency Revolving Commitment Percentage of any Drawing under any Letter of Credit which has not otherwise been reimbursed by the applicable Borrowers or such Defaulting Lender pursuant to the terms of this Section 2.10. Upon the request of Company, amounts in excess of the amount required to be deposited by any Borrower pursuant to this Section 2.10(k) at the time of such request shall be released to the applicable Borrower so long as, at the time of and immediately after giving effect to such release, no Unmatured Event of Default or Event of Default shall have occurred and be continuing.

 

(l)                                     Loan Documents Control. In the event of a conflict or an inconsistency between the Issuer Documents and the Loan Documents, the Loan Documents shall control.

 

2.11                        Pro Rata Borrowings. Borrowings of Loans (other than Swing Line Loans made by a Swing Line Lender) under any Facility shall be loaned by the applicable Lenders under such Facility pro rata on the basis of their Commitments under such Facility. No Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder and each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its Commitments hereunder.

 

2.12                        Replacement Revolving Credit Facility.

 

(a)                                 Notwithstanding anything to the contrary in any Loan Document, this Agreement may be amended, amended and restated, supplemented or otherwise modified on one or more occasions with the written consent of the Administrative Agent, the Facing Agents, the Swing Line Lenders, the Borrowers under the Multicurrency Revolving Facility and the Lenders and New Lenders providing the relevant Replacement Revolving Loans (as defined below) and Replacement Revolving Commitments (as defined below) to permit the refinancing of all or any portion of the Multicurrency Revolving Loans or Loans in respect of any Additional Revolving Facility or Loans in respect of any other Replacement Revolving Facility outstanding hereunder (“Refinanced Revolving Loans”) and Multicurrency Revolving Commitments and/or any Additional Facility Commitments in respect of any Additional Revolving Facility hereunder and/or any other Replacement Revolving Commitments in respect of any other Replacement Revolving Facility hereunder (“Refinanced Revolving Commitments”) (which for this purpose will be deemed to include any then outstanding Replacement Revolving Loans and Replacement Revolving Commitments) with replacement revolving loans (“Replacement Revolving Loans”) and replacement revolving commitments (“Replacement Revolving Commitments”, and together with such Replacement Revolving Loans relating thereto, a “Replacement Revolving Facility”) hereunder which shall be Loans and Commitments hereunder; provided that (a) the aggregate principal amount of such Replacement Revolving Loans and Replacement Revolving Commitments shall not exceed the aggregate principal amount of such Refinanced Revolving Loans and Refinanced Revolving Commitments (plus the amount of accrued interest and

 

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premium thereon, any committed but undrawn amounts and underwriting discounts, fees (including upfront fees and original issue discount), commissions and expenses incurred in connection with the replacement thereof), (b) the maturity date of such Replacement Revolving Loans and Replacement Revolving Commitments shall not be earlier than the latest Revolver Termination Date of such Refinanced Revolving Loans and Refinanced Revolving Commitments, (c) the interest rates, floors and margins, commitment, upfront and other fees, and borrowers with respect to such Replacement Revolving Loans and Replacement Revolving Commitments shall be as agreed by the borrowers party thereto and the Lenders and New Lenders providing such Replacement Revolving Loans and Replacement Revolving Commitments, including any changes or additional terms to address local law considerations in the case of any new foreign borrowers, (d) such Replacement Revolving Loans and Replacement Revolving Commitments shall rank pari passu in right of payment with the other Loans and Commitments hereunder, (e) such Replacement Revolving Loans and Replacement Revolving Commitments shall (x) be subject to the CAM Exchange (and the holders of such Replacement Revolving Loans and Replacement Revolving Commitments shall have become a party to the Re-Allocation Agreement by execution and delivery of a joinder thereto or other arrangement reasonably acceptable to the Administrative Agent) and (y) may not be (i) guaranteed by any Person which is not a Credit Party or (ii) secured by any assets other than the Collateral (other than, in the case of any Replacement Revolving Loans and Replacement Revolving Commitments incurred by an Other Subsidiary Borrower that is not a U.S. Credit Party, which may be guaranteed by Persons that are not Credit Parties on the date when such Replacement Revolving Loans and Replacement Revolving Commitments are established and secured by additional collateral in non-U.S. jurisdictions so long as the Lenders that provide such Replacement Revolving Loans and Replacement Revolving Commitments enter into the CAM Exchange and become a party to the Re-Allocation Agreement by execution and delivery of a joinder thereto or other arrangement reasonably acceptable to the Administrative Agent), (f) no Event of Default under Section 10.1(a), 10.1(e) or 10.1(f) shall exist immediately prior to or after giving effect to the effectiveness of the relevant Replacement Revolving Facility and (g) all other terms applicable to such Replacement Revolving Loans and Replacement Revolving Commitments (excluding interest rates, floors and margins, commitment, upfront and other fees, guarantees, security and maturity, subject to preceding clauses (b) through (f)) shall be substantially identical to, or less favorable to the Lenders and New Lenders providing such Replacement Revolving Loans and Replacement Revolving Commitments than those applicable to such Refinanced Revolving Loans and Refinanced Revolving Commitments, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest Revolver Termination Date in effect immediately prior to such refinancing; provided that, if such terms are more favorable (taken as a whole) to the Lenders or New Lenders providing such Replacement Revolving Loans and Replacement Revolving Commitments, the applicable Borrowers shall have the right to unilaterally provide the existing Multicurrency Revolving Lenders and Lenders under any existing Additional Revolving Facility with additional rights and benefits and the “substantially similar to” or not “less favorable” requirement of this clause (g) and compliance therewith shall be determined after giving effect to such additional right and benefits (it being understood and agreed that Company may, at its option, deliver a certificate to the Administrative Agent certifying that the requirements of this clause (g) have been satisfied at least 5 Business Days prior to the incurrence of such Indebtedness, and such certification shall be

 

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conclusive evidence that such requirements have been satisfied unless the Administrative Agent provides notice to Company of its objection during such 5 Business Day period (including a reasonable description of the basis upon which it objects)).

 

(b)                                 In addition, if so provided in the relevant amendment, amendment and restatement, supplement or other modification of the Credit Agreement entered into in accordance with Section 2.12(a), and with the consent of the applicable Facing Agent, participations in Letters of Credit expiring on or after the Revolver Termination Date for the Facility under which such Letter of Credit was issued may be reallocated from Lenders holding Multicurrency Revolving Commitments hereunder to Lenders and New Lenders holding Replacement Revolving Commitments in accordance with the terms of such amendment, amendment and restatement, supplement or other modification.

 

(c)                                  This Section 2.12 shall supersede any other provisions contained in the Loan Documents, including, without limitation, Section 12.1, to the contrary.

 

(d)                                 Upon issuance of any Replacement Revolving Commitments or the making of any Replacement Revolving Loans, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on the Multicurrency Revolving Facility or any Additional Revolving Facility (to the extent that they remain outstanding) and such new Replacement Revolving Facility, (B) repayments required upon the Maturity Date of the Multicurrency Revolving Facility or any Additional Revolving Facility (to the extent that they remain outstanding) and such new Replacement Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (3) below)) of Loans under any Revolving Facility after the effective date of Replacement Revolving Commitments shall be made on a pro rata basis between the Multicurrency Revolving Facility and any other Additional Revolving Facility (to the extent they remain outstanding) and the new Replacement Revolving Facility, (2) any swing line loans made, or letters of credit issued, as applicable, under any Revolving Facility after the effective date of the Replacement Revolving Commitments shall be made or issued to the extent reasonably practicable on a pro rata basis between the Multicurrency Revolving Facility and any other Additional Revolving Facility (to the extent that they remain outstanding) and the new Replacement Revolving Facility and (3) the permanent repayment of Loans with respect to, and termination of commitments under, such new Replacement Revolving Facility shall be made on a pro rata basis between the Multicurrency Revolving Facility and any other Additional Revolving Facility (to the extent that they remain outstanding) and the new Replacement Revolving Facility, except that the Borrower under such new Replacement Revolving Facility shall be permitted to permanently repay and terminate commitments under such new Replacement Revolving Facility on a greater than pro rata basis than any other Revolving Facility that has a later Maturity Date than such Replacement Revolving Facility either at the time of incurrence of such Replacement Revolving Facility or on the date that such Revolving Facility is subsequently incurred after the incurrence of such new Replacement Revolving Facility.

 

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2.13                        Replacement Term Loans.

 

(a)                                 Notwithstanding anything to the contrary in any Loan Document, this Agreement may be amended, amended and restated, supplemented or otherwise modified on one or more occasions with the written consent of the Administrative Agent, the Borrower under the applicable Term Facility and the Lenders and New Lenders providing the relevant Replacement Term Loans (as defined below) and, prior to the end of the Certain Funds Period, the relevant Replacement Term Commitments (as defined below) to permit the refinancing of all or any portion of the Term Loans outstanding under one or more Term Facilities (“Refinanced Term Loans”) and Term Commitments under one or more Term Facilities (“Refinanced Term Commitments”) (which for this purpose will be deemed to include any then outstanding Replacement Term Loans and Replacement Term Commitments) with a replacement term loan tranche hereunder (“Replacement Term Loans”) and replacement term commitments hereunder (“Replacement Term Commitments” and together with such Replacement Term Loans relating thereto, a “Replacement Term Facility”) which shall be Loans and Commitments hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans and Replacement Term Commitments shall not exceed the aggregate principal amount of such Refinanced Term Loans and Refinanced Term Commitments (plus the amount of accrued interest and premium thereon, any underwriting discounts, fees (including upfront fees and original issue discount), commissions and expenses incurred in connection with the replacement thereof), (b) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing, (c) the original issue discount, interest rates, floors and margins, commitment, upfront and other fees, prepayment premiums, amortization schedules, and borrowers with respect to such Replacement Term Loans and Replacement Term Commitments shall be as agreed by the borrowers party thereto and the Lenders and New Lenders providing such Replacement Term Loans and Replacement Term Commitments, including any changes or additional terms to address local law considerations in the case of any new foreign borrowers, (d) such Replacement Term Loans and Replacement Term Commitments shall rank pari passu in right of payment with the other Loans and Commitments hereunder, (e) such Replacement Term Loans and Replacement Term Commitments shall (x) be subject to the CAM Exchange (and the holders of such Replacement Term Loans and Replacement Term Commitments shall have become a party to the Re-Allocation Agreement by execution and delivery of a joinder thereto or other arrangement reasonably acceptable to the Administrative Agent) and (y) may not be (i) guaranteed by any Person which is not a Credit Party or (ii) secured by any assets other than the Collateral (other than, in the case of any Replacement Term Loans and Replacement Term Commitments incurred by an Other Subsidiary Borrower that is not a U.S. Credit Party, which may be guaranteed by Persons that are not Credit Parties on the date when such Replacement Term Loans and Replacement Term Commitments are established and secured by additional collateral in non-U.S. jurisdictions so long as the Lenders that provide such Replacement Term Loans and Replacement Term Commitments enter into the CAM Exchange and become a party to the Re-Allocation Agreement by execution and delivery of a joinder thereto or other arrangement reasonably acceptable to the Administrative Agent), (f) no Event of Default under Section 10.1(a), 10.01(e) or 10.1(f) shall exist immediately prior to or after giving effect to the effectiveness of the relevant Replacement Term Loans and Replacement Term Commitments and (g) all other terms applicable to such Replacement Term Loans and Replacement Term Commitments (excluding interest rates, floors and margins, commitment, upfront and other fees,

 

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guarantees, security and maturity, subject to preceding clauses (b) through (f)) shall be substantially identical to, or less favorable to the Lenders and New Lenders providing such Replacement Term Loans and Replacement Term Commitments than those applicable to such Refinanced Term Loans and Refinanced Term Commitments, except to the extent necessary to provide for covenants and other terms applicable to any period after the earlier to occur of the date that all other Term Loans are paid in full (other than contingent indemnification obligations not then due) and the latest final maturity of any Term Loans in effect immediately prior to such refinancing; provided, however, that, if such terms are more favorable (taken as a whole) to the Lenders or New Lenders providing such Replacement Term Loans and Replacement Term Commitments, the applicable Borrowers shall have the right to unilaterally provide the existing Term Lenders with additional rights and benefits and the “substantially similar to” or not “less favorable” requirement of this clause (g) and compliance therewith shall be determined after giving effect to such additional rights and benefits (it being understood and agreed that Company may, at its option, deliver a certificate to the Administrative Agent certifying that the requirements of this clause (g) have been satisfied at least 5 Business Days prior to the incurrence of such Indebtedness, and such certification shall be conclusive evidence that such requirements have been satisfied unless the Administrative Agent provides notice to Company of its objection during such 5 Business Day period (including a reasonable description of the basis upon which it objects)). No Term Commitments shall be reduced during the Certain Funds Period as a result of any Borrower obtaining Replacement Term Commitments hereunder unless such Borrower complies with Section 4.1(a)(v).

 

(b)                                 This Section 2.13 shall supersede any other provisions contained in the Loan Documents, including, without limitation, Section 12.1, to the contrary.

 

2.14                        Extension of Maturity Date

 

(a)                                 Each Borrower may, upon notice (a “Maturity Date Extension Request”) to the Administrative Agent (which shall promptly notify the Lenders or New Lenders under the applicable Facility), request one or more extensions of any Revolver Termination Date, Term Maturity Date or the maturity date for any Additional Facility or Replacement Facility, in each case applicable to any Facility under which it is a Borrower (the Revolver Termination Date, Term Maturity Date or maturity date for such Additional Facility or Replacement Facility applicable to such Facility, the “Existing Maturity Date”). Each Maturity Date Extension Request shall (i) specify the date to which such Existing Maturity Date is sought to be extended (the “New Maturity Date”), (ii) specify the changes, if any, to the interest rates, floors and margins, commitment and other fees payable to Consenting Lenders (as defined below) in respect of that portion of their Commitments and Loans extended to such New Maturity Date and the time as of which such changes will become effective, which may be prior to the Existing Maturity Date, and (iii) specify any other amendments or modifications to this Agreement or the other Loan Documents to be effected in connection with such extension; provided that (A) no such amendments or modifications under clause (iii) that would otherwise require approvals pursuant to Section 12.1 shall become effective prior to the then latest Revolver Termination Date (in the case of an extension of a Revolving Facility) or Term Maturity Date (in the case of an extension of a Term Facility), unless such other approvals have been obtained, (B) the Obligations under any such Facility shall rank pari passu in right of payment with the other

 

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Loans and Commitments hereunder, (C) the Obligations under any such Facility shall not be guaranteed by any Person other than the Credit Parties that guaranteed the applicable Facility prior to such maturity extension and (D) such Facility shall be secured solely by the Collateral that secured the applicable Facility prior to such maturity extension and such Facility shall be subject to the CAM Exchange (and the holders of Indebtedness or commitments in respect of such Facility shall have become a party to the Re-Allocation Agreement by execution and delivery of a joinder thereto or other arrangement reasonably acceptable to the Administrative Agent).

 

(b)                                 In the event a Maturity Date Extension Request shall have been delivered by a Borrower, each Lender under the applicable Facility shall have the right (but not the obligation) to agree to the extension of the Existing Maturity Date and other matters contemplated by the Maturity Date Extension Request on the terms and subject to the conditions set forth therein (each Lender under the applicable Facility agreeing to the Maturity Date Extension Request being referred to herein as a “Consenting Lender” and each Lender under the applicable Facility not agreeing thereto being referred to herein as a “Declining Lender”), which right may be exercised by written notice thereof, specifying the maximum amount of the Commitment or Loans of such Lender under the applicable Facility with respect to which such Lender agrees to the New Maturity Date, delivered to the applicable Borrower (with a copy to the Administrative Agent) not later than a day to be agreed upon by the applicable Borrower and the Administrative Agent following the date on which the Maturity Date Extension Request shall have been delivered by such Borrower (it being understood that any Lender under such Facility that shall have failed to exercise such right as set forth above by such date shall be deemed to be a Declining Lender). If a Lender under such Facility elects to extend only a portion of its then existing Commitment or Loans under such Facility, it will be deemed for purposes hereof to be a Consenting Lender in respect of such extended portion and a Declining Lender in respect of the remaining portion of its Commitment and Loans under such Facility. If Consenting Lenders shall have agreed to such Maturity Date Extension Request in respect of Commitments and Loans under such Facility held by them, then on the date specified in the Maturity Date Extension Request as the effective date thereof (the “Extension Effective Date”), (w) the Existing Maturity Date of the applicable Commitments and Loans under such Facility shall, as to the Consenting Lenders, be extended to such date as shall be specified therein, (x) the terms and conditions of the Commitments and Loans of the Consenting Lenders under such Facility (with respect to maturity, interest rates, floors and margins, commitment and other fees (including Letter of Credit fees) payable in respect thereof), shall be modified as set forth in the Maturity Date Extension Request, (y) such other modifications and amendments hereto specified in the Maturity Date Extension Request shall become effective, subject to any required approvals under Section 12.1, except that any such other modifications and amendments that do not take effect until the then latest Revolver Termination Date (in the case of an extension of a Revolving Facility) or Term Maturity Date (in the case of an extension of a Term Facility), shall not require the consent of any Lender other than the Consenting Lenders and (z) to the extent that such Facility is a Revolving Facility and any Commitments or Loans under such Facility are not extended (thereby resulting in an Extended Revolving Facility in respect of the Commitments and Loans that are extended), (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on the Multicurrency Revolving Facility, any Additional

 

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Revolving Facility or any Replacement Revolving Facility (to the extent that they remain outstanding) and such new Extended Revolving Facility, (B) repayments required upon the Maturity Date of the Multicurrency Revolving Facility, any Additional Revolving Facility or any Replacement Revolving Facility (to the extent that they remain outstanding) and such new Extended Revolving Facility and (C) repayments made in connection with any permanent repayment and termination of commitments (subject to clause (3) below)) of Loans under any Extended Revolving Facility after the Extension Effective Date shall be made on a pro rata basis between the Multicurrency Revolving Facility, any Additional Revolving Facility and any other Replacement Revolving Facility (to the extent they remain outstanding) and the new Extended Revolving Facility, (2) any swing line loans made, or letters of credit issued, as applicable, under any Revolving Facility after the Extension Effective Date shall be made or issued to the extent reasonably practicable on a pro rata basis between the Multicurrency Revolving Facility, any Additional Revolving Facility and any Replacement Revolving Facility (to the extent that they remain outstanding) and the new Extended Revolving Facility and (3) the permanent repayment of Loans with respect to, and termination of commitments under, such new Extended Revolving Facility shall be made on a pro rata basis between the Multicurrency Revolving Facility, any Additional Revolving Facility and any Replacement Revolving Facility (to the extent that they remain outstanding) and the new Extended Revolving Facility, except that the Borrower under such new Extended Revolving Facility shall be permitted to permanently repay and terminate commitments under such new Extended Revolving Facility on a greater than pro rata basis than any other Revolving Facility that has a later Maturity Date than such Extended Revolving Facility either on the Extension Effective Date or on the date that such Revolving Facility is subsequently incurred after such Extension Effective Date.

 

(c)                                  Notwithstanding anything herein to the contrary, Borrowers shall have the right, in accordance with the provisions of Sections 3.7 and 12.8, at any time prior to the Existing Maturity Date, to replace a Declining Lender (only in respect of that portion of such Lender’s Commitments and Loans subject to a Maturity Date Extension Request that such Lender has not agreed to extend) with a Lender or any Eligible Assignee that will agree to such Maturity Date Extension Request, and any such replacement Lender shall for all purposes constitute a Consenting Lender in respect of the Commitment and Loan assigned to and assumed by it on and after the effective time of such replacement.

 

(d)                                 If a Maturity Date Extension Request has become effective hereunder with respect to any Facility, on the Existing Maturity Date, the Commitment and Loans of each Declining Lender under such Facility shall, to the extent not assumed, assigned or transferred as provided in Section 2.14(b), terminate, and the Borrowers under such Facility shall repay all the Loans of each Declining Lender under such Facility, to the extent such Loans shall not have been so purchased, assigned and transferred, in each case together with accrued and unpaid interest and all fees and other amounts owing to such Declining Lender hereunder.

 

(e)                                  This Section 2.14 shall supersede any provision to the contrary in this Agreement, including Section 12.1.

 

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2.15                        Appointment and Removal of Other Subsidiary Borrowers.

 

(a)                                 Company may at any time and from time to time designate one or more Wholly-Owned Subsidiaries of Company as additional Other Subsidiary Borrowers under any Facility other than a Term Facility upon (i) execution and delivery by such Other Subsidiary Borrower and the Administrative Agent of a Joinder Agreement substantially in the form of Exhibit 2.15 providing for a Revolver Sublimit for such Other Subsidiary Borrower reasonably acceptable to the Administrative Agent, and (ii) delivery to the Administrative Agent of (1) to the extent not previously delivered, the pledge and guarantee agreements, if any, required pursuant to Section 7.12, (2) if requested by the Administrative Agent, an opinion of counsel which covers such matters related to such agreements as the Administrative Agent shall reasonably determine with such exceptions as are reasonably satisfactory to the Administrative Agent and (3) reasonable and customary secretary’s certificates, resolutions, process agent appointment letters (solely in the case of a Foreign Subsidiary that becomes an Other Subsidiary Borrower), and documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations to the extent reasonably requested by the Administrative Agent (where applicable, in accordance with reasonable instructions received from any Multicurrency Revolving Lender and required to comply with such rules and regulations) at least 5 Business Days prior to the effectiveness to such designation. Upon the effectiveness of each such Joinder Agreement, Schedules 1.1(c) and (d) shall automatically and without further action be deemed to be amended, restated, supplemented or otherwise modified to add such Other Subsidiary Borrowers and their respective Revolver Sublimits.

 

(b)                                 Company may at any time and from time to time terminate an Other Subsidiary Borrower’s status as such (i) (x) upon execution and delivery by Company or such Other Subsidiary Borrower of a written request providing for such termination or (y) in connection with a Permitted Reorganization and (ii) upon either (x) repayment in full (other than contingent indemnification obligations not then due) of all outstanding Multicurrency Revolving Loans and other Obligations of such Other Subsidiary Borrower (other than Obligations in respect of any Term Commitments, Term Loans (including any commitment fees) or Swap Contracts) (the “Amounts Owing”) or (y) the agreement of one or more of Company and the Other Subsidiary Borrowers, as of the effective date of such termination, to cause one or more of such other Borrowers to assume, pursuant to documentation reasonably satisfactory to the Administrative Agent, the outstanding Amounts Owing payable by such terminating Other Subsidiary Borrower. Upon the effectiveness of each such termination, Schedules 1.1(c) and (d) shall automatically and without further action be deemed to be amended, restated, supplemented or otherwise modified to remove such Person as an Other Subsidiary Borrower.

 

(c)                                  This Section 2.15 shall supersede any provision to the contrary in this Agreement, including Section 12.1.

 

2.16                        Special Provisions Relating to a Re-Denomination Event.

 

(a)                                 Multicurrency Revolving Loans and Unpaid Drawings.

 

(i)                       On the date of the occurrence of a Re-Denomination Event, automatically (and without the taking of any action), (i) all then outstanding

 

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Multicurrency Revolving Loans denominated in an Alternative Currency and all Unpaid Drawings in respect of Letters of Credit issued for the account of any Borrower owed in an Alternative Currency, shall be automatically converted into Multicurrency Revolving Loans maintained in, and Unpaid Drawing owing by such Borrower in, Dollars (in an amount equal to the Dollar Equivalent of the aggregate principal amount of the respective Loans or Unpaid Drawings on the date such Re-Denomination Event first occurred, which Multicurrency Revolving Loans or Unpaid Drawings (x) shall continue to be owed by such Borrower, (y) shall at all times thereafter be deemed to be Base Rate Loans and (z) shall be immediately due and payable on the date such Re-Denomination Event has occurred) and (ii) all principal, accrued and unpaid interest and other amounts owing with respect to such Multicurrency Revolving Loans and Unpaid Drawings shall be immediately due and payable in Dollars, taking the Dollar Equivalent of such principal amount, accrued and unpaid interest and other amounts. The occurrence of any conversion of Multicurrency Revolving Loans or Unpaid Drawings to Base Rate Loans as provided above in this Section 2.16(a) shall be deemed to constitute, for purposes of Section 3.5, a prepayment of Multicurrency Revolving Loans before the last day of any Interest Period relating thereto.

 

(ii)                    Upon and after the occurrence of a Re-Denomination Event, all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, Multicurrency Revolving Loans denominated in an Alternative Currency (including, without limitation, any interest and other amounts which were accrued but unpaid on the date of such Re-Denomination Event) and Unpaid Drawings owing in an Alternative Currency shall be payable in Dollars (taking the Dollar Equivalents of all such amounts on the date of the occurrence of the respective Re-Denomination Event, with all calculations for periods after the Re-Denomination Event being made as if the respective such Multicurrency Revolving Loan or Unpaid Drawings had originally been made in Dollars) and shall be distributed by the Administrative Agent for the account of appropriate Lenders which made such Multicurrency Revolving Loans or are participating therein.

 

(b)                                 EUR Term A Loans.

 

(i)                       On the date of the occurrence of a Re-Denomination Event that occurs after the expiration of the Certain Funds Period (or on the first day following the expiration of the Certain Funds Period if a Re-Denomination Event occurred prior to, and is continuing on, such date), automatically (and without the taking of any action), (i) all then outstanding EUR Term A Loans denominated in Euro shall be automatically converted into Term Loans maintained in Dollars (in an amount equal to the Dollar Equivalent of the aggregate principal amount of the respective Term Loans on the date such Re-Denomination Event first occurred, which Term Loans (x) shall continue to be owed by the Purchaser, (y) shall at all times thereafter be deemed to be Base Rate Loans and (z) shall be immediately due and payable on the date such Re-Denomination Event has occurred) and (ii) all principal, accrued and unpaid interest and other amounts owing with respect to such Term Loans shall be immediately due and payable in Dollars, taking the Dollar Equivalent of such principal amount, accrued and unpaid interest and other

 

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amounts.  The occurrence of any conversion of EUR Term A Loans to Base Rate Loans as provided above in this Section 2.16(b) shall be deemed to constitute, for purposes of Section 3.5, a prepayment of EUR Term A Loans before the last day of any Interest Period relating thereto.

 

(ii)                    Upon and after the occurrence of a Re-Denomination Event that occurs after the expiration of the Certain Funds Period (or on and after the first day following the expiration of the Certain Funds Period if a Re-Denomination Event occurred prior to, and is continuing on, such date), all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, EUR Term A Loans denominated in Euros (including, without limitation, any interest and other amounts which were accrued but unpaid on the date of such Re-Denomination Event) shall be payable in Dollars (taking the Dollar Equivalents of all such amounts on the date of the occurrence of the respective Re-Denomination Event, with all calculations for periods after the Re-Denomination Event being made as if the respective such EUR Term A Loan had originally been made in Dollars) and shall be distributed by the Administrative Agent for the account of the appropriate EUR Term A Lenders which made such EUR Term A Loans or are participating therein.

 

(c)                                  Notice of Re-Denomination. The Administrative Agent will, as soon as practicable after the occurrence thereof, notify Company and each Lender of any redenomination and conversion under this Section 2.16 (provided that any failure to give such notice shall not affect the validity of such redenomination and conversion).

 

ARTICLE III

 

INTEREST AND FEES

 

3.1                               Interest.

 

(a)                                 Base Rate Loans. Each Borrower agrees to pay interest in respect of the unpaid principal amount of such Borrower’s Base Rate Loans from the date the proceeds thereof are made available to such Borrower (or, if such Base Rate Loan was converted from a Eurocurrency Loan, the date of such conversion) until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Base Rate Loan or (ii) the conversion of such Base Rate Loan to a Eurocurrency Loan pursuant to Section 2.6 at a rate per annum equal to the relevant Base Rate plus the Applicable Base Rate Margin.

 

(b)                                 Eurocurrency Loans. Each Borrower agrees to pay interest in respect of the unpaid principal amount of such Borrower’s Eurocurrency Loans from the date the proceeds thereof are made available to such Borrower (or, if such Eurocurrency Loan was converted from a Base Rate Loan, the date of such conversion) until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Eurocurrency Loan or (ii) the conversion of such Eurocurrency Loan to a Base Rate Loan pursuant to Section 2.6, 2.8(g), 2.16 or 3.6, at a rate per annum equal to the relevant Eurocurrency Rate plus the Applicable Eurocurrency Margin.

 

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(c)                                  Overnight Rate Loans. Each Borrower agrees to pay interest in respect of the unpaid principal amount of such Borrower’s Overnight Rate Loans from the date the proceeds thereof are made available to such Borrower until the maturity of such Overnight Rate Loan at a rate per annum equal to the Overnight Euro Rate or Overnight LIBOR Rate, as applicable.

 

(d)                                 Payment of Interest. Interest on each Loan shall be payable in arrears on each Interest Payment Date; provided, however, that interest accruing pursuant to Section 3.1(f) shall be payable from time to time on demand. Interest shall also be payable on all then outstanding Multicurrency Revolving Loans on the Revolver Termination Date and on all Loans on the date of repayment (including prepayment) thereof (except that voluntary prepayments of Multicurrency Revolving Loans that are Base Rate Loans made pursuant to Section 4.3 on any day other than a Quarterly Payment Date or the Revolver Termination Date need not be made with accrued interest from the most recent Quarterly Payment Date; provided that such accrued interest is paid on the next Quarterly Payment Date) and on the date of maturity (by acceleration or otherwise) of such Loans.

 

(e)                                  Notification of Rate. The Administrative Agent, upon determining the interest rate for any Borrowing of Eurocurrency Loans for any Interest Period, shall promptly notify Borrowers and the Lenders thereof. Such determination shall, absent manifest error and subject to Section 3.6, be final, conclusive and binding upon all parties hereto.

 

(f)                                   Default Interest. Notwithstanding the rates of interest specified herein, effective immediately upon any failure to pay any Obligations or any other amounts due under any of the Loan Documents when due, whether by acceleration or otherwise, to the extent permitted by applicable law, such overdue amounts shall bear interest payable on demand, after as well as before judgment, at a rate per annum equal to the Default Rate.

 

(g)                                  Maximum Interest. If any interest payment or other charge or fee payable hereunder exceeds the maximum amount then permitted by applicable law, the applicable Borrower shall be obligated to pay the maximum amount then permitted by applicable law and the applicable Borrower shall continue to pay the maximum amount from time to time permitted by applicable law until all such interest payments and other charges and fees otherwise due hereunder (in the absence of such restraint imposed by applicable law) have been paid in full.

 

3.2                               Fees.

 

(a)                                 Fees. Company shall pay to the Agents and the Lead Arrangers such fees as shall have been separately agreed upon in writing, including in the Fee Letter, in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

 

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(b)                                 Commitment Fees.

 

(i)                      Multicurrency Revolving Commitment Fees. Company shall pay to the Administrative Agent for pro rata distribution to each Non-Defaulting Lender having a Multicurrency Revolving Commitment (based on its Multicurrency Revolver Pro Rata Share) a commitment fee in Dollars (the “Multicurrency Revolving Commitment Fee”) for the period commencing on the Closing Date to and including the Revolver Termination Date for the Multicurrency Revolving Facility or the earlier termination of the Multicurrency Revolving Commitments (and repayment in full of the Multicurrency Revolving Loans and payment in full or Cash Collateralization of the LC Obligations), computed at a rate equal to the Applicable Multicurrency Revolving Commitment Fee Percentage per annum on the average daily Total Available Multicurrency Revolving Commitment (with the Available Multicurrency Revolving Commitment of each Lender determined without reduction for such Lender’s Multicurrency Revolver Pro Rata Share of Swing Line Loans outstanding). Unless otherwise specified, accrued Multicurrency Revolving Commitment Fees shall be due and payable in arrears (A) on each Quarterly Payment Date after the Closing Date, (B) on the Revolver Termination Date for the Multicurrency Revolving Facility and (iii) upon any reduction or termination in whole or in part of the Multicurrency Revolving Commitments (but only, in the case of a reduction, on the portion of the Multicurrency Revolving Commitments then being reduced).

 

(ii)                  Term Commitment Fees.

 

(1)                                 Company shall pay to the Administrative Agent for pro rata distribution to each Non-Defaulting Lender having a USD Term A Commitment (based on its USD Term A Pro Rata Share) a commitment fee in Dollars (the “USD Term A Commitment Fee”) for the period commencing on the Closing Date to and including the last day of the Certain Funds Period or the earlier termination of the USD Term A Commitments, computed at a rate equal to the Applicable Term Loan Commitment Fee Percentage per annum on the actual daily undrawn USD Term A Commitments.

 

(2)                                 The Purchaser shall pay to the Administrative Agent for pro rata distribution to each Non-Defaulting Lender having a EUR Term A Commitment (based on its “EUR Term A Pro Rata Share”) a commitment fee in Euros (the “EUR Term A Commitment Fee” and together with the USD Term A Commitment Fee, the “Term Commitment Fees”) for the period commencing on the Closing Date to and including the last day of the Certain Funds Period or the earlier termination of the applicable EUR Term A Commitments, computed at a rate equal to the Applicable Term Loan Commitment Fee Percentage per annum on the actual daily undrawn EUR Term A Commitments.

 

Unless otherwise specified, accrued Term Commitment Fees shall be due and payable in arrears (A) on each Quarterly Payment Date after the Closing Date and (B) upon the termination of the applicable Certain Funds Term Commitments.

 

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3.3                               Computation of Interest and Fees. Interest on all Loans and fees payable hereunder shall be computed on the basis of the actual number of days elapsed over a year of 360 days; provided that interest on all Base Rate Loans when computed using the Eurocurrency Rate and, if denominated in Sterling, Multicurrency Revolving Loans shall be computed on the basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be. Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on each Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at any time and from time to time upon request of any Borrower, deliver to such Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate applicable to Loans pursuant to this Agreement.

 

3.4                               Interest Periods. At the time it gives any Notice of Borrowing or a Notice of Conversion or Continuation, with respect to Eurocurrency Loans, a Borrower shall elect, by giving the Administrative Agent written notice, the interest period (each an “Interest Period”) which Interest Period shall, at the option of such Borrower, be 1, 2, 3 or 6 months (or, (x) if available to each of the applicable Lenders (as determined by each such applicable Lender in its sole discretion) a 12 month period or (y) in the discretion of the Administrative Agent, a period of less than one month); provided that:

 

(a)                                 Borrowers may elect different Interest Periods 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;

 

(b)                                 the initial Interest Period for any Eurocurrency Loan shall commence on the date of such Borrowing of such Eurocurrency Loan (including the date of any conversion thereto from a Loan of a different Type) and each Interest Period occurring thereafter in respect of such Eurocurrency Loan shall commence on the last day of the immediately preceding Interest Period;

 

(c)                                  if any Interest Period relating to a Eurocurrency Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;

 

(d)                                 if any Interest Period would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period for a Eurocurrency Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day;

 

(e)                                  at any time when an Event of Default is then in existence and the Administrative Agent, at the request of the Required Lenders, so notifies Company, no Interest Period (a) of more than one month may be selected with respect to any Loan denominated in an Alternative Currency and (b) may be selected with respect to any Loan denominated in Dollars;

 

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(f)                                   no Interest Period shall extend beyond the applicable Term Maturity Date for any Term Loan or the applicable Revolver Termination Date for any Multicurrency Revolving Loan; and

 

(g)                                  no Interest Period in respect of any Borrowing of Term Loans shall be selected which extends beyond any date upon which a mandatory repayment of such Term Loans will be required to be made under Section 4.4(b), if the aggregate principal amount of Term Loans of such Term Facility which have Interest Periods which will expire after such date will be in excess of the aggregate principal amount of Term Loans of such Term Facility then outstanding less the aggregate amount of such required prepayment.

 

3.5                               Compensation for Funding Losses. The applicable Borrower shall compensate each Lender, upon its written request (which request shall set forth the basis for requesting such amounts), for all actual losses, expenses and liabilities (including, without limitation, any interest paid by such Lender to lenders of funds borrowed by such Lender to make or carry its Eurocurrency Loans to the extent not recovered by the Lender in connection with the liquidation or re-employment of such funds and including the compensation payable by such Lender to a Participant) and any loss sustained by such Lender in connection with the liquidation or re-employment of such funds (including, without limitation, a return on such liquidation or re-employment that would result in such Lender receiving less than such Lender would have received had such Eurocurrency Loan remained outstanding until the last day of the Interest Period applicable to such Eurocurrency Loans, but excluding Excluded Taxes) which such Lender may sustain as a result of:

 

(a)                                 for any reason (other than a default by such Lender or Administrative Agent) a continuation or a Borrowing of, or conversion from or into, Eurocurrency Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion or Continuation (whether or not withdrawn) delivered by such Borrower;

 

(b)                                 any payment, prepayment or conversion or continuation of any of such Borrower’s Eurocurrency Loans occurring for any reason whatsoever on a date which is not the last day of an Interest Period applicable thereto;

 

(c)                                  any repayment of any of such Borrower’s Eurocurrency Loans not being made on the date specified in a notice of payment given by such Borrower; or

 

(d)                                 (i) any other failure by such Borrower to repay such Borrower’s Eurocurrency Loans when required by the terms of this Agreement or (ii) an election made by such Borrower pursuant to Section 3.7. A written notice setting forth in reasonable detail the basis of the incurrence of additional amounts owed such Lender under this Section 3.5 and delivered to such Borrower and Administrative Agent by such Lender shall, absent manifest error, be final, conclusive and binding for all purposes. Calculation of all amounts payable to a Lender under this Section 3.5 shall be made as though that Lender had actually funded its relevant Eurocurrency Loan through the purchase of a Eurocurrency deposit bearing interest at the Eurocurrency Rate in an amount equal to the amount of that Loan, having a maturity comparable to the relevant Interest Period and through the transfer of such Eurocurrency deposit

 

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from an offshore office of that Lender to a domestic office of that Lender in the United States of America; provided, however, that each Lender may fund each of its Eurocurrency Loans in any manner it sees fit and the foregoing assumption shall be utilized only for the calculation of amounts payable under this Section 3.5.

 

3.6                               Increased Costs, Alternate Rate of Interest, Illegality, Etc.

 

(a)                                 Increased Costs Generally. If any Change in Law:

 

(i)                       having general applicability to all comparably situated Lenders and Facing Agents within the jurisdiction in which such Lender or Facing Agent operates shall impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurocurrency Rate) or any Facing Agent or subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (f) 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; or

 

(ii)                    imposes on any Lender or any Facing Agent 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;

 

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, such Facing Agent or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, Facing Agent or other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender, Facing Agent or other Recipient, the applicable Borrower will pay to such Lender, Facing Agent or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Facing Agent or other Recipient, as the case may be, for such additional costs incurred or reduction suffered; provided that such amounts shall be proportionate to the amounts that such Lender or Facing Agent charges other borrowers or account parties for such additional costs incurred or reductions suffered on loans similarly situated to Borrowers in connection with substantially similar facilities as reasonably determined by such Lender or such Facing Agent acting in good faith; provided, further, that if such increased costs described under clause (i) are determined by a court of competent jurisdiction in a final non-appealable judgment to have been imposed as a result of a Lender’s or Facing Agent’s gross negligence or willful misconduct, such Lender or Facing Agent will promptly repay to the applicable Borrower the amount of any increased costs paid to such Lender or such Facing Agent by such Borrower under this Section 3.6.

 

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(b)                                 Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Borrowing of Eurocurrency Loans:

 

(i)                       the Administrative Agent reasonably determines (which determination shall be conclusive absent manifest error) that, by reason of any changes arising after the Closing Date affecting the interbank Eurocurrency market, adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate for such Eurocurrency Loan for such Interest Period; or

 

(ii)                    the Administrative Agent is advised by the Majority Lenders in respect of each of the Facilities with affected Eurocurrency Loans that the Eurocurrency Rate for such Eurocurrency Loan for such Interest Period will not adequately and fairly reflect the cost to Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

 

then the Administrative Agent shall give written notice thereof to Company and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies Company and the Lenders that the circumstances giving rise to such notice no longer exist, (x) any Notice of Conversion or Continuation that requests the conversion of any Loan to, or continuation of any Loan as, a Eurocurrency Loan in the Eurocurrency Rate that is unavailable because the conditions described in clauses (i) and (ii) above have been satisfied (such unavailable rate, the “Unavailable Rate”), shall be ineffective, and (y) if any Notice of Borrowing requests a Eurocurrency Loan with an Unavailable Rate, (1) if such Notice of Borrowing is for a Loan in Dollars or if an alternative rate of interest is not in effect pursuant to clause (2) below, then notwithstanding anything to the contrary in this Agreement, the applicable Borrower may cancel such Loan or such Loan shall be made as a Base Rate Loan in Dollars or (2) if such Notice of Borrowing is for an Alternative Currency Loan, then notwithstanding anything to the contrary in this Agreement, the applicable Borrower may cancel such Loan or the Administrative Agent may, in consultation with Company, propose to Company in writing an alternative interest rate for the affected Loan that, if accepted by Company in a writing delivered to the Administrative Agent within 1 Business Day of Company’s receipt of such written proposal, shall apply with respect to the affected Loan until (A) the Administrative Agent notifies Company and the Lenders that the circumstances giving rise to the notice described above no longer exist, (B) the Administrative Agent is advised by the applicable Majority Lenders that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in the affected Borrowing or (C) solely with respect to such Borrowing such Lender determines that any law or regulation has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and Company written notice thereof; provided that, notwithstanding the foregoing, all Eurocurrency Rates (other than any then applicable Unavailable Rates) shall remain available for Borrowings until such rate shall be an Unavailable Rate.

 

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(c)                                  Illegality. Subject to Section 3.7, if any Lender shall provide written notice to the Administrative Agent and Company that any Change in Law since the date of this Agreement makes it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for such Lender or its applicable lending office to make Eurocurrency Loans or to fund or maintain Eurocurrency Loans hereunder (i) with respect to Loans denominated in Dollars (A) upon receipt of such notification, the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Loans denominated in Dollars, (B) each Eurocurrency Loan of such Lender denominated in Dollars will automatically be converted to Base Rate Loans on the last day of the then current Interest Period therefor or, if earlier, on the date specified by such Lender in such notification (which date shall be no earlier than the last day of any applicable grace period permitted by applicable law) and (C) the obligation of such Lender to make or continue affected Eurocurrency Loans denominated in Dollars or to convert Loans into Eurocurrency Loans denominated in Dollars shall be suspended until the Administrative Agent or such Lender shall notify Company that the circumstances causing such suspension no longer exist and (ii) with respect to Loans denominated in an Alternative Currency, (A) upon receipt of such notification, the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Loans denominated in such Alternative Currency, (B) each Eurocurrency Loan of such Lender denominated in such Alternative Currency will automatically be converted to a Daily Rate Loan on the last day of the then current Interest Period therefor or, if earlier, on the date specified by such Lender in such notification (which date shall be no earlier than the last day of any applicable grace period permitted by applicable law) and (C) the obligation of such Lender to make or continue affected Eurocurrency Loans denominated in such Alternative Currency or to convert Loans into Eurocurrency Loans denominated in such Alternative Currency shall be suspended until the Administrative Agent or such Lender shall notify Company that the circumstances causing such suspension no longer exist.

 

(d)                                 Capital Requirements. Without duplication of Section 3.6(a) hereof, if any Lender or Facing Agent determines that any Change in Law by any Governmental Authority with regulatory authority over such Lender or Facing Agent since the date of this Agreement affecting such Lender or Facing Agent or any lending office of such Lender or such Lender’s or Facing Agent’s holding company, if any, regarding capital or liquidity requirements, will have the effect of reducing the rate of return on such Lender’s or Facing Agent’s capital or on the capital of such Lender’s or Facing Agent’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by any Facing Agent, to a level below that which such Lender or Facing Agent or such Lender’s or Facing Agent’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Facing Agent’s policies and the policies of such Lender’s or Facing Agent’s holding company with respect to liquidity requirements and capital adequacy), then from time to time as required pursuant to Section 3.6(e), the applicable Borrower will pay to such Lender or Facing Agent, as the case may be, such additional amount or amounts as will compensate such Lender or Facing Agent or such Lender’s or Facing Agent’s holding company for any such reduction suffered; provided that such amounts shall be proportionate to the amounts that such Lender or Facing Agent charges other borrowers or account parties for such

 

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additional costs incurred or reductions suffered on loans similarly situated to Borrowers in connection with substantially similar facilities as reasonably determined by such Lender or such Facing Agent acting in good faith.

 

(e)                                  Certificates for Reimbursement. In determining such additional amounts required to be paid by the applicable Borrowers pursuant to this Section 3.6, each Lender and Facing Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable and which will, to the extent the increased costs or reduction in the rate of return relates to such Lender’s and Facing Agent’s commitments, loans or obligations in general and are not specifically attributable to the Commitments, Loans and obligations hereunder, cover all commitments, loans and obligations similar to the Commitments, Loans and obligations of such Lender and Facing Agent hereunder whether or not the loan documentation for such other commitments, loans or obligations permits the Lender or Facing Agent to make the determination specified in this Section 3.6. Such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto. Each Lender and Facing Agent, upon determining that any additional amounts will be payable pursuant to this Section 3.6, will provide a certificate to the applicable Borrower, which certificate shall show in reasonable detail the basis for calculation of the amounts necessary to compensate such Lender or Facing Agent or its holding company, as the case may be, under this Section 3.6, although the failure to give any such certificate shall not release or diminish any of the applicable Borrowers’ obligations to pay additional amounts pursuant to this Section 3.6; provided that no Lender or Facing Agent shall be entitled to receive additional amounts pursuant to this Section 3.6 for periods occurring prior to the 135th day before the giving of such notice; provided, further, that if the Change in Law giving rise to such increased costs, reductions or amounts is retroactive, then the 135 day period referred to above shall be extended to include the period of retroactive affect thereof. Notwithstanding anything herein to the contrary, the applicable Borrower shall pay to such Lender or Facing Agent, as the case may be, the amount shown as due on any such certificate within 15 days after receipt thereof.

 

(f)                                   Change of Lending Office. If any Lender or Facing Agent is or will be owed compensation pursuant to Section 3.6, or ceases to make, fund or maintain Eurocurrency Loans, or to convert Loans into Eurocurrency Loans, as a result of any condition described in Section 3.6, or if any Borrower is required to pay any additional amount to any Lender, Facing Agent or any Governmental Authority for the account of any Lender or Facing Agent pursuant to Section 4.7, then such Lender or Facing Agent will use reasonable efforts (subject to overall policy considerations of such Lender or Facing Agent) to cause a different branch or Affiliate to make or continue a Loan or Letter of Credit or to assign its rights and obligations hereunder to another of its branches or Affiliates if in the judgment of such Lender or Facing Agent such designation or assignment (i) will avoid the need for, or reduce the amount of, such compensation or payment to such Lender, Facing Agent or Governmental Authority, (ii) would permit such Lender to continue to make, fund, and maintain Eurocurrency Loans and to convert Loans into Eurocurrency Loans, and (iii) will not, in the judgment of such Lender or Facing Agent, be otherwise disadvantageous in any significant respect to such Lender or Facing Agent. The applicable Borrower hereby agrees to pay all reasonable and documented expenses incurred by any Lender or Facing Agent in utilizing a different branch or Affiliate pursuant to

 

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this Section 3.6(f). Nothing in this Section 3.6(f) shall affect or postpone any of the obligations of Borrowers or the right of any Lender or Facing Agent provided for herein.

 

3.7                               Replacement of Affected Lenders. If (a) any Lender becomes a Defaulting Lender or otherwise defaults in its Obligations to make Loans or fund Unpaid Drawings, (b) any Lender or Facing Agent is owed increased costs or compensation for reductions suffered under Section 3.6(a) or Section 3.6(d), or submits a notification of illegality, impossibility or impracticality under Section 3.6, (c) any Borrower is required to make any payments under Section 4.7 to any Lender or Governmental Authority, (d) in connection with any proposed amendment, change, supplement, waiver, discharge, termination or other modification of any of the provisions of this Agreement or any other Loan Document, the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders or affected Lenders whose consent is required in accordance with Section 12.1 or pursuant to the terms of any other Loan Document is not obtained, (e) any Lender is a Declining Lender, (f) any Multicurrency Revolving Lender notifies the Administrative Agent that it cannot make loans, continue loans or convert loans, in or to any Agreed Alternative Currency pursuant to Sections 2.8(c) or 2.8(d), or (g) any Lender ceases to make, fund or maintain Eurocurrency Loans, or to convert Loans into Eurocurrency Loans, in each case in the currency and with the Interest Period requested by the applicable Borrower, as a result of any condition described in Section 3.6, then in the case of clauses (a) through (g), Borrowers shall have the right to replace such Lender (the “Replaced Lender”) (or (x) at the option of any Borrower, in the case of clause (d) above, if the respective Lender’s consent is required with respect to less than all Loans or Commitments, to replace only the respective Loans or Commitments of the respective non-consenting Lender which gave rise to the need to obtain such Lender’s individual consent or (y) in the case of clause (e) above, with respect to any Declining Lender, to replace only the portion of Loans or Commitments of such Declining Lender that it elected not to extend), with one or more other Eligible Assignees, none of whom shall constitute a Defaulting Lender at the time of such replacement (which assignee may be another Lender, if a Lender accepts such assignment) (collectively, the “Replacement Lender”), reasonably acceptable to the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), and to require each such Replaced Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.8(c)), all of its interests, rights and obligations under this Agreement and the related Loan Documents with respect to the applicable Loans and Commitments to such Replacement Lender; provided that (i) at the time of any replacement pursuant to this Section 3.7, the Replacement Lender shall enter into one or more assignment agreements, in form and substance reasonably satisfactory to the Administrative Agent, pursuant to which the Replacement Lender shall acquire all of the applicable Commitments and applicable outstanding Loans of, and participations in Letters of Credit by, the Replaced Lender to be acquired, (ii) all obligations of Borrowers owing to the Replaced Lender under the Loan Documents with respect to the applicable Commitments and applicable outstanding Loans (including, without limitation, such increased costs and excluding those amounts and obligations specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being paid) shall be paid in full to such Replaced Lender concurrently with such replacement, and (iii) (x) in the case of clause (d) above, each such Replacement Lender consents to the proposed amendment, change,

 

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supplement, waiver, discharge, termination or other modification and (y) in the case of clause (e) above, each such Replacement Lender consents to the proposed maturity extension. Upon the execution of the respective assignment documentation, the payment of amounts referred to in clauses (i) and (ii) above, entry into the Register and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by the applicable Borrower, the Replacement Lender shall become a Lender hereunder. Notwithstanding anything to the contrary contained above, no Lender that acts as a Facing Agent may be replaced hereunder at any time which it has Letters of Credit outstanding hereunder unless arrangements reasonably satisfactory to such Facing Agent (including the furnishing of a standby letter of credit in form and substance, and issued by an issuer satisfactory to such Facing Agent or delivering Cash Collateral to such Facing Agent) have been made with respect to such outstanding Letters of Credit. Each Lender agrees that if any Borrower exercises its option hereunder to cause an assignment of Loans or Commitments by such Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section 12.8(c). In the event that a Lender does not comply with the requirements of the immediately preceding sentence within 2 Business Days after receipt of such notice, each Lender hereby authorizes and directs the Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section 12.8(c) on behalf of the Replaced Lender and any such documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section 12.8(c).

 

ARTICLE IV

 

REDUCTION OF COMMITMENTS;
PAYMENTS AND PREPAYMENTS

 

4.1                               Voluntary Reduction of Commitments; Defaulting Lenders.

 

(a)                       Voluntary Reduction of Commitments. Upon at least 2 Business Days’ prior written notice (or telephonic notice confirmed in writing) to the Administrative Agent at the Notice Address (which notice the Administrative Agent shall promptly transmit to each Lender in writing), Company shall have the right, without premium or penalty, to terminate the unutilized portion of the Multicurrency Revolving Commitments, or the Swing Line Commitment, and the Borrower under each Term Facility shall have the right, without premium or penalty, to terminate the unutilized portion of Term Commitments under such Term Facility, and, as the case may be, in each case in part or in whole; provided that:

 

(i)                       any such voluntary termination of any class of Multicurrency Revolving Commitments (including any revolving commitments pursuant to any Additional Facility, any Extended Revolving Commitments and any Replacement Revolving Commitments) shall apply to proportionately and permanently reduce such class of Multicurrency Revolving Commitments of each Multicurrency Revolving Lender;

 

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(ii)                    any such voluntary termination of the Term Commitments under any Term Facility shall apply to permanently reduce the Term Commitment of each Term Lender under such Term Facility ratably in accordance with their respective Term Commitments under such Term Facility, and shall apply to permanently reduce, as directed by the applicable Borrower, any or all of the Scheduled Term Repayments under such Term Facility (in the amounts designated by such Borrower);

 

(iii)                 any partial voluntary reduction pursuant to this Section 4.1 shall be in the amount of at least $10,000,000 and integral multiples of $5,000,000 in excess of that amount in the relevant currency of the applicable Facility;

 

(iv)                any such voluntary termination of the Multicurrency Revolving Commitments or Swing Line Commitment shall occur simultaneously with a voluntary prepayment, pursuant to Section 4.3 to the extent necessary such that (A) the Total Multicurrency Revolving Commitment shall not be reduced below the aggregate principal amount of outstanding Multicurrency Revolving Loans plus the aggregate LC Obligations and the Swing Line Commitment and (B) the Swing Line Commitment shall not be reduced below the aggregate principal amount of outstanding Swing Line Loans; and

 

(v)                   during the Certain Funds Period, no such reduction of Certain Funds Term Commitments under the applicable Term Facility shall be effective unless:

 

(1)         the Borrower under such Term Facility shall have entered into one or more agreements for the provision of debt financing in an amount at least equal to the amount of such reduction for the purposes of financing the Target Acquisition; or

 

(2)         the Borrower under such Term Facility, Company or any other Subsidiary complies with the terms of the last paragraph of this Section 4.1(a);

 

and the Cash Confirmation Provider has confirmed in writing its approval of the arrangements set forth in (1) or (2) above (including any escrow arrangement), as applicable, and such reduction of Certain Funds Term Commitments.

 

Each notice of commitment reductions shall be irrevocable; provided that such notice may state that it is conditioned upon the consent of the Cash Confirmation Provider or the effectiveness of other credit facilities or any other financing, sale or other transaction.

 

In the case of a reduction of Certain Funds Term Commitments during the Certain Funds Period effected pursuant to Section 4.1(a)(v)(2), the Borrower under the applicable Term Facility, Company or any other Subsidiary shall have deposited funds in an escrow account at Deutsche Bank AG New York Branch (“DBNY”) or another financial institution selected by Company to act as escrow agent (DBNY or such other financial institution acting in such capacity, the “Escrow Agent”), to be held in escrow by the Escrow Agent and released only for

 

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the purposes described in Section 6.8(b). Such funds deposited in escrow shall be returned to the applicable Borrower upon the earliest of (i) the expiration of the Certain Funds Period, and (ii) the consummation of the Target Acquisition without the use of the full amount of the Certain Funds Term Loans.  In the event that funds are deposited in escrow pursuant to the first sentence of this paragraph, the Certain Funds Term Commitments and Scheduled Term Repayments under such Term Facilities shall be reduced on a Dollar for Dollar or Euro for Euro basis, as applicable (as directed by the applicable Borrower to any or all of the Certain Funds Term Commitments and Scheduled Term Repayments under any or all of such Term Facilities (in the amounts designated by such Borrower)), and within each Certain Funds Term Facility, ratably among the Certain Funds Term Lenders under such Term Facility in accordance with their respective Certain Funds Term Commitments under such Term Facility, in each case to the extent that such escrow arrangement and such Certain Funds Term Commitment reduction are approved by the Cash Confirmation Provider pursuant to the following sentence. Notwithstanding anything in this Agreement to the contrary, during the Certain Funds Period, no reduction of Certain Funds Term Commitments pursuant to Section 4.1(a)(v)(2) shall be effective unless (i) the applicable Borrower has deposited funds (x) in Sterling or (y) in another currency (provided that in the event that funds in another currency are deposited with the Escrow Agent, the applicable Borrower or Purchaser shall have entered into a Swap Contract to convert such currency into Sterling on or prior to each date on which Purchaser may be required to make any payment in respect of Target Shares in connection with the Target Acquisition during the Certain Funds Period on terms satisfactory to the Cash Confirmation Provider) with the Escrow Agent and (ii) the Cash Confirmation Provider has confirmed in writing its approval of such reduction of the applicable Certain Funds Term Commitments and the applicable escrow arrangements described above.

 

(b)                       Defaulting Lenders. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

 

(i)                       Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 12.1.

 

(ii)                    Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent hereunder for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, or otherwise, and including any amounts made available to the Administrative Agent for the account of such Defaulting Lender pursuant to Section 12.4), 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 Facing Agent or a Swing Line Lender hereunder; third, if so determined by the Administrative Agent or requested by the applicable Facing Agent or Swing Line Lender, to be held as Cash Collateral for future funding obligations of such Defaulting Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as Company may request (so long as no Unmatured Event of Default or Event of

 

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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 Company, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Administrative Agent, the Lenders, any Facing Agent or any Swing Line Lender as determined by a judgment of a court of competent jurisdiction obtained by the Administrative Agent, any Lender, Facing Agent or Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Unmatured Event of Default or Event of Default exists, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Multicurrency Revolving Loans, Term Loans or funded participations in Swing Line Loans or Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share and (B) such Multicurrency Revolving Loans, Term Loans or funded participations in Swing Line Loans or Letters of Credit were made at a time when the applicable conditions set forth in Article V were satisfied or waived, such payment shall be applied solely to pay, as applicable, the Multicurrency Revolving Loans of, Term Loans of, and funded participations in Swing Line Loans or Letters of Credit owed to, all Non-Defaulting Lenders of the applicable Facility on a pro rata basis prior to being applied to the payment of any Multicurrency Revolving Loans of, Term Loans of, or funded participations in Swing Line Loans or Letters of Credit owed to, such Defaulting Lender. 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 4.1(b)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii)                 Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Swing Line Loans or Letters of Credit pursuant to Section 2.1(f) and Section 2.10(e) the “Multicurrency Revolver Pro Rata Share” of each Non-Defaulting Lender shall be computed without giving effect to the Multicurrency Revolving Commitment of such Defaulting Lender; provided that (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Unmatured Event of Default or Event of Default exists and (ii) the aggregate obligation of each Non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (A) the Multicurrency Revolving Commitment of that Non-Defaulting Lender minus (B) the aggregate outstanding principal amount of the Multicurrency Revolving Loans of that Lender. Subject to Section 12.26, no reallocation

 

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hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

(iv)                Cash Collateral for Letters of Credit. Promptly on demand by a Facing Agent or the Administrative Agent from time to time, Company shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure with respect to such Facing Agent (after giving effect to Section 4.1(b)(iii) and such Cash Collateral shall be in Dollars). Any such Cash Collateral shall be deposited in a separate account with the Administrative Agent, subject to the exclusive dominion and control of the Administrative Agent, as collateral (solely for the benefit of such Facing Agent) for the payment and performance of each Defaulting Lender’s Multicurrency Revolver Pro Rata Share of outstanding LC Obligations. Moneys in such account shall be applied by the Administrative Agent to reimburse such Facing Agent immediately for each Defaulting Lender’s Multicurrency Revolver Pro Rata Share of any Drawing under any Letter of Credit which has not otherwise been reimbursed by the applicable Borrower or such Defaulting Lender. Upon the request of Company, amounts in excess of the amount required to be deposited by any Borrower pursuant to this Section 4.1(b)(iv) shall be released to the applicable Borrower so long as, at the time of and immediately after giving effect to such release, no Unmatured Event of Default or Event of Default shall have occurred and be continuing.

 

(v)                   Prepayment of Swing Line Loans. Promptly on demand by a Swing Line Lender or the Administrative Agent from time to time, the applicable Borrower shall prepay Swing Line Loans in an amount of all Fronting Exposure with respect to such Swing Line Lender (after giving effect to Section 4.1(b)(iii)).

 

(vi)                Certain Fees. For any period during which such Lender is a Defaulting Lender, such Defaulting Lender (i) shall not be entitled to receive any commitment fee pursuant to Section 3.2(b) (and Company shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender) and (ii) shall not be entitled to receive any LC Commissions pursuant to Section 2.10(g)(ii) otherwise payable to the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral but instead, the applicable Borrower shall (x) be required to pay to each Non-Defaulting Lender the amount of such LC Commissions in accordance with the upward adjustments in their respective Multicurrency Revolver Pro Rata Shares allocable to such Letter of Credit pursuant to Section 4.1(b)(iii) and (y) not be required to pay the remaining amount of such LC Commissions that otherwise would have been required to have been paid to that Defaulting Lender.

 

(vii)             Defaulting Lender Cure. If Company, the Administrative Agent, the Swing Line Lenders and the Facing Agents agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the

 

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date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral (including the return of Cash Collateral deposited by any Borrower pursuant to Section 4.1(b)(iv)), that Lender will, to the extent applicable, purchase that portion of outstanding Multicurrency Revolving Loans, of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Multicurrency Revolving Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Multicurrency Revolver Pro Rata Shares (without giving effect to Section 4.1(b)(iii)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of any Borrower while such Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

 

4.2                               Mandatory Reduction of Commitments.

 

(a)                       For each Term Facility, the Term Commitment of each Term Lender under such Term Facility shall be automatically reduced on the date of each Credit Event in respect of such Term Facility in an amount equal to such Term Lender’s Pro Rata Share of the Borrowings of the Term Loans under such Facility made on such date in accordance with Section 2.1.

 

(b)                       All Term Commitments hereunder shall automatically and permanently terminate upon the expiration of the Certain Funds Period after giving effect to all Term Loans made or to be made on or before such date; provided that the termination of the Term Commitments pursuant to this Section 4.2(b) shall not prejudice rights and remedies in respect of any breach of this Agreement occurring prior to any such termination.

 

4.3                               Voluntary Prepayments. Borrowers shall have the right to prepay the Loans in whole or in part from time to time without premium or penalty (other than the costs described in Section 3.5, if applicable) on the following terms and conditions:

 

(a)                       The applicable Borrower shall give the Administrative Agent written notice at its Notice Address (or telephonic notice promptly confirmed in writing) of its intent to prepay the Loans to it, whether such Loans are Term Loans, Multicurrency Revolving Loans or Swing Line Loans, the amount of such prepayment and the specific Borrowings to which such prepayment is to be applied, which notice shall be given by the applicable Borrower to the Administrative Agent by 12:00 noon (New York City time) at least 3 Business Days prior in the case of Eurocurrency Loans, at least 1 Business Day prior in the case of Base Rate Loans and by 11:00 a.m. (New York City time) in the case of Swing Line Loans on the date of such prepayment and which notice shall (except in the case of Swing Line Loans) promptly be transmitted by the Administrative Agent to each of the applicable Lenders;

 

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(b)                                 each partial prepayment of any Borrowing shall be in a principal amount at least equal to the Minimum Borrowing Multiple or, if less, the entire principal amount thereof then outstanding; provided that no partial prepayment of Eurocurrency Loans made pursuant to a single Borrowing shall reduce the aggregate principal amount of the outstanding Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto;

 

(c)                                  Eurocurrency Loans may only be prepaid pursuant to this Section 4.3 on the last day of an Interest Period applicable thereto or on any other day subject to Section 3.5;

 

(d)                                 each prepayment in respect of any Borrowing of Multicurrency Revolving Loans shall be applied pro rata among the Multicurrency Revolving Loans comprising such Borrowing; provided, however, that such prepayment shall not be applied to any Multicurrency Revolving Loans of a Defaulting Lender at any time when the aggregate amount of Multicurrency Revolving Loans of any Non-Defaulting Lender exceeds such Non-Defaulting Lender’s Multicurrency Revolver Pro Rata Share of all Multicurrency Revolving Loans then outstanding;

 

(e)                                  each voluntary prepayment of Term Loans pursuant to this Section 4.3 shall be applied as directed by the applicable Borrower to any or all of the remaining Scheduled Term Repayments of any or all of the Term Facilities (in the amounts designated by such Borrower); provided that in the absence of direction from the applicable Borrower, the Administrative Agent shall apply such prepayment to the remaining Scheduled Term Repayments in direct order of maturity on a pro rata basis across all Term Facilities; and

 

(f)                                   each notice of prepayment shall be irrevocable; provided that such notice may state that it is conditioned upon the effectiveness of other credit facilities or any other financing, sale or other transaction.

 

The notice provisions, the provisions with respect to the minimum amount of any prepayment, and the provisions requiring prepayments in integral multiples above such minimum amount of this Section 4.3 are for the benefit of the Administrative Agent and may be waived unilaterally by the Administrative Agent.

 

4.4                               Mandatory Prepayments.

 

(a)                       Prepayment Upon Overadvance.

 

(i)                       If, at any time other than as a result of fluctuations in currency exchange rates, (A) (x) the aggregate outstanding Effective Amount of Multicurrency Revolving Loans (after giving effect to any other repayments or prepayments on such day) together with the aggregate outstanding Effective Amount of LC Obligations exceeds the aggregate Multicurrency Revolving Commitments or (y) the aggregate outstanding Effective Amount of Swing Line Loans (after giving effect to any other repayments or prepayments on such day) exceeds the aggregate Swing Line

 

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Commitments, as the case may be (including, without limitation, on each applicable Revolver Termination Date), the applicable Borrower shall prepay the Multicurrency Revolving Loans or Swing Line Loans, as applicable, in the amount of such excess, and (B) the aggregate Effective Amount of LC Obligations exceeds the Multicurrency Revolving Commitments then in effect (after giving effect to the prepayment of all outstanding Multicurrency Revolving Loans and all Swing Line Loans at such time), the applicable Borrower shall Cash Collateralize LC Obligations by depositing Cash Collateral with the Administrative Agent in an amount equal to the positive difference, if any, between the Effective Amount of such LC Obligations and the Multicurrency Revolving Commitments then in effect. The Administrative Agent shall establish in its name for the benefit of the Multicurrency Revolving Lenders one or more interest bearing collateral accounts (collectively, the “Collateral Account”) into which it shall deposit such Cash Collateral for the LC Obligations. Upon the request of Company, amounts in excess of the amount required to be deposited in the Collateral Account shall be released to the applicable Borrower so long as, at the time of and immediately after giving effect to such release, no (1) prepayment of Loans or Cash Collateralization of LC Obligations would be required under this Section 4.4(a) and (2) Unmatured Event of Default or Event of Default shall have occurred and be continuing.

 

(ii)                    If at any time, solely as a result of fluctuations in currency exchange rates, (A) (x) the aggregate outstanding Dollar Equivalent of the Effective Amount of Multicurrency Revolving Loans (so calculated, after giving effect to any other repayments or prepayments on such day) together with the aggregate outstanding Dollar Equivalent of the Effective Amount of LC Obligations exceeds 105% of the aggregate Multicurrency Revolving Commitments or (y) the aggregate outstanding Dollar Equivalent of Swing Line Loans (so calculated, after giving effect to any other repayments or prepayments on such day) exceeds 105% of the Swing Line Commitment, as the case may be (including, without limitation, on each Revolver Termination Date), the applicable Borrower shall prepay the Multicurrency Revolving Loans or Swing Line Loans, as applicable, in an aggregate principal amount sufficient to cause the aggregate Dollar Equivalent of all of the Multicurrency Revolving Loans or Swing Line Loans, as applicable (so calculated, after giving effect to any other repayments or prepayments on such day), to be less than or equal to the aggregate Multicurrency Revolving Commitments  or Swing Line Commitment, as applicable, in effect at such time and (B) the aggregate Dollar Equivalent of the Effective Amount of LC Obligations exceeds 105% of the aggregate Multicurrency Revolving Commitments then in effect (so calculated, after giving effect to any other repayments or prepayments of Multicurrency Revolving Loans and Swing Line Loans on such day), the applicable Borrower shall Cash Collateralize LC Obligations by depositing Cash Collateral in the Collateral Account in an amount equal to the Dollar Equivalent of the positive difference, if any, between the Effective Amount of such LC Obligations and the Multicurrency Revolving Commitments then in effect. Upon the request of Company, amounts in excess of the amount required to be deposited in the Collateral Account shall be released to the applicable Borrower so long as, at the time of and immediately after giving effect to such release, no (1) prepayment of Loans or Cash Collateralization of LC Obligations would

 

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be required under this Section 4.4(a) and (2) Unmatured Event of Default or Event of Default shall have occurred and be continuing.

 

(b)                       Scheduled Term Repayments. For each Term Facility, the Borrower under such Term Facility shall cause to be paid Scheduled Term Repayments on the Term Loans under such Term Facility until such Term Loans are paid in full in the amounts and at the times specified in the definition of Scheduled Term Repayments to the extent that prepayments have not previously been applied to such Scheduled Term Repayments (and such Scheduled Term Repayments have not otherwise been reduced) pursuant to the terms hereof.

 

(c)                        Mandatory Prepayment Upon Asset Disposition. Commencing with the date immediately following the last day of the Certain Funds Period, on the tenth Business Day after the date of receipt thereof by Company or any of its Subsidiaries of Net Sale Proceeds from any Asset Disposition (other than (v) an Asset Disposition in connection with a Permitted Reorganization, including all antitrust divestitures in connection with the Target Acquisition, (w) sales, transfers or other dispositions of Capital Stock of Target constituting Margin Stock, (x) an Asset Disposition in the ordinary course of business, (y) an Asset Disposition permitted by Section 8.3 or Section 8.4 (except for Sections 8.4(p), (s), and (aa)), and (z) any leases, subleases, licenses or sublicenses), except to the extent that the Net Sale Proceeds of such Asset Disposition, when combined with the Net Sale Proceeds of all such Asset Dispositions do not exceed, from the Initial Certain Funds Funding Date for any Asset Disposition on or after the Initial Certain Funds Funding Date, (A) $750,000,000 plus (B) if an Aerospace Asset Disposition occurred during such period, 50% of the Net Sale Proceeds from such Aerospace Asset Disposition (such amounts in aggregate, the “Excluded Amounts”), Company shall cause an amount equal to 100% of such Net Sale Proceeds for any Asset Disposition on or after the Initial Certain Funds Funding Date in excess of the Excluded Amounts from such Asset Disposition to be applied on any date on which Term Loans are outstanding, as a mandatory prepayment of principal of Term Loans and accrued and unpaid interest thereon in accordance with Section 4.5; provided that such Net Sale Proceeds shall not be required to be so applied on such date to the extent that such Net Sale Proceeds are used to purchase assets used or to be used in the businesses referred to in Section 8.11, in each case within 365 days following the date of such Asset Disposition (or within 180 days after the expiration of such 365 day period if within such 365 day period Company or any of its Subsidiaries enters into a binding commitment to so use such Net Sale Proceeds); provided, further, that (1) if all or any portion of such Net Sale Proceeds are not so used within 365 day days (or within 180 days after the expiration of such 365 day period if within such 365 day period Company or any of its Subsidiaries enters into a binding commitment to so use such Net Sale Proceeds) of receipt thereof, such remaining portion shall be applied on the last day of the respective period as a mandatory repayment of principal of outstanding Term Loans as provided above in this Section 4.4(c) and (2) if all or any portion of such Net Sale Proceeds are not required to be applied on the 365th day referred to in clause (1) above because such amount is contractually committed to be used and subsequent to such date such contract is terminated or expires without such portion being so used, then such remaining portion shall be applied within 10 days following the date of such termination or expiration as a mandatory repayment of principal of outstanding Term Loans as provided in this Section 4.4(c).

 

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(d)                       Mandatory Prepayment Upon Recovery Event. Commencing with the date immediately following the last day of the Certain Funds Period, within 10 days following each date on which Company or any of its Subsidiaries receives any Net Recovery Proceeds from any Recovery Event, except to the extent that the Net Recovery Proceeds of such Recovery Event (including without limitation any disposition under Section 8.4(m)), when combined with the Net Recovery Proceeds of all other Recovery Events during the immediately preceding 12 month period (ignoring for this purpose any Recovery Events occurring during the Certain Funds Period), do not exceed $300,000,000, Company shall cause an amount equal to 100% of the Net Recovery Proc