FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT Dated as of September 25, 2019 among ENPRO INDUSTRIES, INC. and ENPRO HOLDINGS, INC., as Borrowers, THE GUARANTORS PARTY HERETO, LUNAR INVESTMENT, LLC and LEANTEQ, LLC, as the New...

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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ENPRO INDUSTRIES, INC.

ENPRO HOLDINGS, INC.

FIRST AMENDMENT TO CREDIT AGREEMENT

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SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

Dated as of June 28, 2018

 

among

 

ENPRO INDUSTRIES, INC. and

ENPRO HOLDINGS, INC.,

as Borrowers,

 

CERTAIN FOREIGN SUBSIDIARIES OF THE PARENT,
as Designated Borrowers,

 

CERTAIN DOMESTIC SUBSIDIARIES OF THE BORROWERS,
as the Guarantors,

 

BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and L/C Issuer,

 

▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,

FIFTH THIRD BANK

and

KEYBANK NATIONAL ASSOCIATION,

as Co-Syndication Agents,

 

and

 

THE OTHER LENDERS PARTY HERETO

 

Arranged by:

 

BOFA SECURITIES, INC.,

▇▇▇▇▇ FARGO SECURITIES, LLC,

FIFTH THIRD BANK

and

KEYBANK NATIONAL ASSOCIATION,

as Joint Lead Arrangers

 

BOFA SECURITIES, INC.,

as Sole Bookrunner

 

TABLE OF CONTENTS

 

			Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS			6
	1.01	Defined Terms	6
	1.02	Other Interpretive Provisions	46
	1.03	Accounting Terms	47
	1.04	Rounding	50
	1.05	Exchange Rates; Currency Equivalents	50
	1.06	Additional Alternative Currencies	50
	1.07	Change of Currency	51
	1.08	Times of Day; Rates	52
	1.09	Letter of Credit Amounts	52
ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS			52
	2.01	Loans	52
	2.02	Borrowings, Conversions and Continuations of Loans	57
	2.03	Letters of Credit	58
	2.04	Swing Line Loans	68
	2.05	Prepayments	71
	2.06	Termination or Reduction of Commitments	73
	2.07	Repayment of Loans	74
	2.08	Interest	75
	2.09	Fees	76
	2.10	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate	77
	2.11	Evidence of Debt	78
	2.12	Payments Generally; Administrative Agent’s Clawback	78
	2.13	Sharing of Payments by Lenders	80
	2.14	Cash Collateral	81
	2.15	Defaulting Lenders	82
	2.16	Designated Borrowers	84
	2.17	Designated Lenders	86
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY			86
	3.01	Taxes	86
	3.02	Illegality	91
	3.03	Inability to Determine Rates	92
	3.04	Increased Costs	93
	3.05	Compensation for Losses	94
	3.06	Mitigation Obligations; Replacement of Lenders	95
	3.08	LIBOR Successor Rate	96
	3.08	Survival	97
ARTICLE IV GUARANTY			97
	4.01	The Guaranty	97
	4.02	Obligations Unconditional	97
	4.03	Reinstatement	98
	4.04	Certain Additional Waivers	99
	4.05	Remedies	99
	4.06	Rights of Contribution	99

	4.07	Guarantee of Payment; Continuing Guarantee	99
	4.08	Keepwell	99
ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS			100
	5.01	[Reserved]	100
	5.02	Conditions to all Credit Extensions	100
ARTICLE VI REPRESENTATIONS AND WARRANTIES			101
	6.01	Existence, Qualification and Power	101
	6.02	Authorization; No Contravention	101
	6.03	Governmental Authorization; Other Consents	101
	6.04	Binding Effect	102
	6.05	Financial Statements; No Material Adverse Effect	102
	6.06	Litigation	103
	6.07	No Default	103
	6.08	Ownership of Property; Liens	103
	6.09	Environmental Compliance	103
	6.10	Insurance	104
	6.11	Taxes	104
	6.12	ERISA Compliance	104
	6.13	Subsidiaries	105
	6.14	Margin Regulations; Investment Company Act	105
	6.15	Disclosure	106
	6.16	Compliance with Laws	106
	6.17	Intellectual Property; Licenses, Etc	106
	6.18	Solvency	107
	6.19	Perfection of Security Interests in the Collateral	107
	6.20	Business Locations, Etc	107
	6.21	Labor Matters	107
	6.22	Government Sanctions	107
	6.23	PATRIOT Act	108
	6.24	Anti-Corruption Laws	108
	6.25	EEA Financial Institution	108
	6.25	Representations as to Designated Borrowers	108
ARTICLE VII AFFIRMATIVE COVENANTS			109
	7.01	Financial Statements	110
	7.02	Certificates; Other Information	110
	7.03	Notices	112
	7.04	Payment of Obligations	113
	7.05	Preservation of Existence, Etc	113
	7.06	Maintenance of Properties	114
	7.07	Maintenance of Insurance	114
	7.08	Compliance with Laws	114
	7.09	Books and Records	114
	7.10	Inspection Rights	115
	7.11	Use of Proceeds	115
	7.12	Additional Subsidiaries	115
	7.13	ERISA Compliance	116
	7.14	Pledged Assets	116
	7.15	Further Assurances	117

	7.16	Subordinated Indebtedness	117
	7.17	Unrestricted Subsidiaries	117
	7.18	Approvals and Authorizations	118
	7.19	Post-Closing Covenant	118
ARTICLE VIII NEGATIVE COVENANTS			118
	8.01	Liens	118
	8.02	Investments	121
	8.03	Indebtedness	123
	8.04	Fundamental Changes	127
	8.05	Dispositions	127
	8.06	Restricted Payments	128
	8.07	Change in Nature of Business	129
	8.08	Transactions with Affiliates and Insiders	129
	8.09	Burdensome Agreements	130
	8.10	Use of Proceeds	130
	8.11	Financial Covenants	130
	8.12	Prepayment of Other Indebtedness, Etc	131
	8.13	Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity	131
	8.14	Sanctions; Anti-Corruption Laws	132
ARTICLE IX EVENTS OF DEFAULT AND REMEDIES			132
	9.01	Events of Default	132
	9.02	Remedies Upon Event of Default	134
	9.03	Application of Funds	135
ARTICLE X ADMINISTRATIVE AGENT			136
	10.01	Appointment and Authority	136
	10.02	Rights as a Lender	137
	10.03	Exculpatory Provisions	137
	10.04	Reliance by Administrative Agent	138
	10.05	Delegation of Duties	138
	10.06	Resignation of Administrative Agent	138
	10.07	Non-Reliance on Administrative Agent and Other Lenders	140
	10.08	No Other Duties; Etc	140
	10.09	Administrative Agent May File Proofs of Claim	140
	10.10	Collateral and Guaranty Matters	142
	10.11	Treasury Management Banks and Swap Banks	143
	10.12	ERISA Matters	143
ARTICLE XI MISCELLANEOUS			144
	11.01	Amendments, Etc	144
	11.02	Notices and Other Communications; Facsimile Copies	146
	11.03	No Waiver; Cumulative Remedies; Enforcement	148
	11.04	Expenses; Indemnity; and Damage Waiver	149
	11.05	Payments Set Aside	151
	11.06	Successors and Assigns	151
	11.07	Treatment of Certain Information; Confidentiality	156
	11.08	Set-off	157
	11.09	Interest Rate Limitation	158

	11.10	Counterparts; Integration; Effectiveness	158
	11.11	Survival of Representations and Warranties	158
	11.12	Severability	158
	11.13	Replacement of Lenders	159
	11.14	Governing Law; Jurisdiction; Etc	159
	11.15	Waiver of Right to Trial by Jury	161
	11.16	Electronic Execution	161
	11.17	USA PATRIOT Act	161
	11.18	No Advisory or Fiduciary Relationship	162
	11.19	Borrower Representative; Joint and Several Obligations	162
	11.20	Amendment and Restatement	166
	11.21	Acknowledgment and Consent to Bail-In of EEA Financial Institutions	167
	11.22	Subordination	167
	11.23	Judgment Currency	168
	11.24	Acknowledgment Regarding Any Supported QFC	168

SCHEDULES
	1.01(b)	Existing Letters of Credit
	1.01(c)	Approved Short-Term Investments
	1.01(e)	Stemco ▇▇▇▇▇▇ Ad Valorem Tax Relief Transaction
	2.01	Commitments and Applicable Percentages
	6.13	Subsidiaries
	6.17	IP Rights
	6.20(a)	Locations of Real Property
	6.20(b)	Taxpayer and Organizational Identification Numbers
	6.20(c)	Changes in Legal Name, State of Formation and Structure
	6.21	Labor Matters
	8.01	Liens Existing on the First Amendment Effective Date
	8.02	Investments Existing on the First Amendment Effective Date
	8.03	Indebtedness Existing on the First Amendment Effective Date
	11.02	Certain Addresses for Notices
	EXHIBITS
	A	Form of Loan Notice
	B	Form of Swing Line Loan Notice
	C	Form of Note
	D	Form of Compliance Certificate
	E	Form of Joinder Agreement
	F	Form of Assignment and Assumption
	G	Forms of U.S. Tax Compliance Certificates
	H	Form of Secured Party Designation Notice
	I	Form of Designated Borrower Request and Assumption Agreement
	J	Form of Designated Borrower Notice
	K	Form of Notice of Loan Prepayment

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of June 28, 2018 among ENPRO INDUSTRIES, INC., a North Carolina corporation (the “Parent”), ENPRO HOLDINGS, INC., a North Carolina corporation (“EnPro Holdings”; the Parent and EnPro Holdings being each a “Domestic Borrower” and collectively, the “Domestic Borrowers”), certain Foreign Subsidiaries (as defined below) of the Parent party hereto pursuant to Section 2.16 (each a “Designated Borrower” and, together with the Domestic Borrowers, each a “Borrower” and collectively, the “Borrowers”), the Guarantors (defined herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.

 

Certain of the Loan Parties are party to the Existing Credit Agreement (as defined below). The parties to this Agreement desire to amend the Existing Credit Agreement as set forth herein and to restate the Existing Credit Agreement in its entirety to read as follows.  This Agreement is not a novation of the Existing Credit Agreement.

 

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

 

1.01       Defined Terms.

 

As used in this Agreement, the following terms shall have the meanings set forth below:

 

“Acquisition” means, with respect to any Person, the acquisition by such Person, in a single transaction or in a series of related transactions, of (a) all or substantially all of the property of another Person, or any division, line of business or other business unit of another Person or (b) at least a majority of the Voting Stock of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.

 

“Acquisition Consideration” means the purchase consideration for any Permitted Acquisition made by any Loan Party or any Restricted Subsidiary in exchange for, or as part of, or in connection with, any Permitted Acquisition, whether paid in cash or by exchange of Equity Interests or of properties or otherwise and whether payable at or prior to the consummation of such Permitted Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness, deferred purchase price, Earn Out Obligations and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person, but excludes to the extent not capitalized, costs and expenses incurred in connection with the applicable Permitted Acquisition or accelerated with the applicable Permitted Acquisition. For purposes of determining the aggregate consideration paid for any Permitted Acquisition at the time of such Permitted Acquisition, the amount of any Earn Out Obligations shall be deemed to be the aggregate liability in respect thereof, as determined in accordance with GAAP.

 

“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

 

“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify the Borrower Representative and the Lenders in writing.

 

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

 

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

 

“Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.  The aggregate principal amount of the Aggregate Revolving Commitments in effect on the First Amendment Effective Date is FOUR HUNDRED MILLION DOLLARS ($400,000,000).

 

“Aggregate Term Commitments” means the Term Commitments of all the Lenders.  The aggregate principal amount of the Aggregate Term Commitments in effect on the First Amendment Effective Date is ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000).

 

“Agreement” means this Second Amended and Restated Credit Agreement.

 

“Agreement Currency” has the meaning specified in Section 11.23.

 

“Alternative Currency” means each of the following currencies: Sterling, Euro and Canadian Dollars, together with each other currency (other than Dollars) that is approved in accordance with Section 1.06; provided that for each Alternative Currency, such requested currency is an Eligible Currency.

 

“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

 

“Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate Revolving Commitments and $100,000,000.  The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

“Alternative Incremental Facility Indebtedness” means any Indebtedness incurred by a Domestic Borrower in the form of (x) one or more series of secured or unsecured bonds, debentures, notes or similar instruments or (y) term loans; provided, that, (a) (i) such Indebtedness (if secured) shall be secured by the Collateral on a pari passu basis (but without regard to the control of remedies) or junior basis with the Obligations and shall not be secured by any property or assets of the Parent or any Restricted Subsidiary other than the Collateral, (ii) the security agreements relating to such Indebtedness are substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent) and (iii) the holders of such Indebtedness (or a trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be), the Loan Parties and the Administrative Agent shall have executed and delivered an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent, (b) such Indebtedness does not mature earlier than the latest of (i) the Maturity Date and (ii) the final maturity of any Incremental Term Facility, in each case in effect hereunder at the time of incurrence thereof, (c) the weighted average life to maturity of such Indebtedness shall not be less than the remaining weighted average life to maturity of the Term Loans and any Incremental Term Facility (in each case, as determined by the Administrative Agent in accordance with customary financial practice), (d) such Indebtedness contains covenants, events of default and other terms that are customary for similar Indebtedness in light of then-prevailing market conditions and, when taken as a whole (other than interest rates, fees and optional prepayment or redemption terms), are substantially identical to, or are not materially more restrictive to the Parent and its Restricted Subsidiaries than, those set forth in the Loan Documents (other than (x) covenants or other provisions applicable only to periods after the latest maturity of any Obligations under the Loan Documents then in effect and (y) covenants or other provisions that are also for the benefit of the Lenders in respect of the Loans and Commitments outstanding at the time such Indebtedness is incurred); provided, that, the chief financial officer, treasurer or assistant treasurer (or such other financial officer as is acceptable to the Administrative Agent) of the Borrower Representative shall have delivered a certificate to the Administrative Agent at least three (3) Business Days prior to the incurrence of such Indebtedness or the modification, refinancing, refunding, renewal or extension thereof (or such shorter period of time as may reasonably be agreed by the Administrative Agent), together with a summary of the material terms and conditions of such resulting Indebtedness or drafts of the documentation relating thereto, stating that the Borrower Representative has determined in good faith that such material terms and conditions satisfy the requirements set forth in this clause (d), (e) such Indebtedness does not provide for any amortization, mandatory prepayment, redemption, repurchase or sinking fund payments (other than upon a change of control, customary asset sale or event of loss and customary acceleration rights after an event of default) prior to the latest of (i) the Maturity Date and (ii) the final maturity of any Incremental Term Facility, in each case in effect hereunder at the time of incurrence thereof, and (f) such Indebtedness is not guaranteed by any Person other than the Domestic Borrowers and Domestic Subsidiaries that are Guarantors. Alternative Incremental Facility Indebtedness will include any Registered Equivalent Notes issued in exchange therefor.

 

“Applicable Percentage” means with respect to any Lender at any time, (a) with respect to such Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time, subject to adjustment as provided in Section 2.15; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments, (b) with respect to such Lender’s Term Commitment and such Lender’s Term Loan at any time, the percentage (carried out to the ninth decimal place) of (i) on or prior to the First Amendment Effective Date, the Aggregate Term Commitments represented by such Lender’s Term Commitment at such time and (ii) thereafter, the aggregate outstanding principal amount of the Term Loans of all Lenders represented by the outstanding principal amount of such Lender’s Term Loan at such time, and (c) with respect to such Lender’s portion of any outstanding Incremental Term Facility at any time, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of the Incremental Term Loan held by such Lender under such Incremental Term Facility at such time.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption or other agreement pursuant to which such Lender becomes a party hereto, as applicable.

 

“Applicable Rate” means with respect to Revolving Loans, Term Loans, Swing Line Loans, Letter of Credit Fees and the Commitment Fee, the following percentages per annum, based upon the Consolidated Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02(b):

 

 

Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(b); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Tier 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall continue to apply until the first Business Day immediately following the date a Compliance Certificate is delivered in accordance with Section 7.02(b), whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Net Leverage Ratio contained in such Compliance Certificate.  The Applicable Rate in effect from the First Amendment Effective Date to the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02(b) for the fiscal quarter ending December 31, 2019 shall be determined based upon Pricing Tier 3.  Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).

 

“Applicable Revolving Percentage” means with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage in respect of the Aggregate Revolving Commitments at such time.

 

“Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

“Applicant Borrower” has the meaning specified in Section 2.16.

 

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“Approved Short-Term Investments” means short term investments made in conformity with the investment policies attached as Schedule 1.01(c), provided that (i) such direct or indirect obligations of the United States or of the listed European governments mature within one year from the date of acquisition thereof and (ii) each other investment must mature not more than one year from the date of creation thereof (or in the case of money market and other funds, have an average maturity of not more than one year) and be capable of being liquidated and converted into readily available cash within ten Business Days at any time without penalty in excess of the lesser of $500,000 or 2% of the amount of such investment).

 

“Arrangers” means, collectively, (a) BofA Securities, in its capacity as joint lead arranger and sole bookrunner, (b) ▇▇▇▇▇ Fargo Securities, LLC, in its capacity as joint lead arranger, (c) Fifth Third Bank, in its capacity as joint lead arranger, and (d) KeyBank National Association, in its capacity as joint lead arranger.

 

“Asbestos Trust” means the GST Settlement Facility, a Delaware statutory trust, established pursuant to Section 524(g) of the Bankruptcy Code of the United States in accordance with the Modified Joint Plan of Reorganization.

 

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent.

 

“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease of any Person, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease and (c) in respect of any Securitization Transaction of any Person, the outstanding principal amount of such financing, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment.

 

“Audited Financial Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended December 31, 2018, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Parent and its Subsidiaries, including the notes thereto, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP.

 

“Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02.

 

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

“Bank of America” means Bank of America, N.A. and its successors.

 

“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurocurrency Rate plus 1.00%; provided that if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in the “prime rate” announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

“Base Rate Loan” means a Loan that bears interest based on the Base Rate.  All Base Rate Loans are only available to Domestic Borrowers and shall be denominated in Dollars.

 

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

 

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

 

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue Code, or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.

 

“Benefits Trust” means the “Benefits Trust” as defined in Note 19, "Commitments and Contingencies" under the heading "Crucible Materials Corporation" in the Form 10-K filed by Parent for the year ended December 31, 2013.

 

“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

 

“BofA Securities” means BofA Securities, Inc.

 

“Borrower” and “Borrowers” have the meanings specified in the introductory paragraph hereto.

 

“Borrower Materials” has the meaning specified in Section 7.02.

 

“Borrower Representative” means EnPro Holdings.

 

“Borrowing” means each of the following: (a) a borrowing of Swing Line Loans pursuant to Section 2.04 and (b) a borrowing consisting of simultaneous Loans of the same Type, in the same currency and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.

 

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:

 

(a)         if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such day that is also a London Banking Day;

 

(b)         if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day;

 

(c)         if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and

 

(d)         if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

 

“Businesses” means, at any time, a collective reference to the businesses operated by the Parent and its Restricted Subsidiaries at such time.

 

“Canadian Dollar” and “CAD” means the lawful currency of Canada.

 

“Capital Lease” means, as applied to any Person, any lease of any property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person.

 

“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer.  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

“Cash Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from ▇▇▇▇▇’▇ is at least P-1 or the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not more than 365 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within nine months of the date of acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which such Person shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations and (e) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940 which are administered by reputable financial institutions having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing subdivisions (a) through (d).

 

“Change in Law” means the occurrence, after the Closing Date, 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, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that, notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) 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, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Change of Control” means the occurrence of any of the following events:

 

(a)          any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); or

 

(b)         during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or

 

(c)          the Parent ceases to directly own and control 100% of the Equity Interests of EnPro Holdings; or

 

(d)          there occurs a “change of control” (or any other defined term having a similar purpose) as defined in any of the documents governing any Indebtedness incurred pursuant to Section 8.03(f), (g) or (r) that constitutes an event of default or requires a mandatory prepayment under any such documents.

 

“Closing Date” means June 28, 2018.

 

“Collateral” means a collective reference to all personal property with respect to which Liens in favor of the Administrative Agent, for the benefit of the holders of the Obligations, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents.

 

“Collateral Documents” means a collective reference to the Security Agreement, the Luxembourg Pledge Agreement and other security documents as may be executed and delivered by the Loan Parties pursuant to the terms of Section 7.14.

 

“Commitment” means, as to each Lender, the Revolving Commitment of such Lender, the Term Commitment of such Lender and/or any Incremental Facility Commitment of such Lender.

 

“Commitment Fee” has the meaning specified in Section 2.09(a).

 

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) as amended or otherwise modified, and any successor statute.

 

“Compliance Certificate” means a certificate substantially in the form of Exhibit D.

 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

“Consolidated EBITDA” means, for any period, for the Parent and its Restricted Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus the following to the extent deducted in calculating such Consolidated Net Income: (a) Consolidated Interest Charges for such period, (b) the provision for federal, state, local and foreign income taxes payable by the Parent and its Restricted Subsidiaries for such period and (c) depreciation and amortization expense for such period, all as determined in accordance with GAAP.  Notwithstanding the foregoing, for purposes of determining Consolidated EBITDA for any four fiscal quarter period that includes any of the fiscal quarters ending prior to the First Amendment Effective Date, Consolidated EBITDA shall equal $69,534,066 for the fiscal quarter of the Parent ending September 30, 2018, $59,456,254 for the fiscal quarter of the Parent ending December 31, 2018, $49,827,541 for the fiscal quarter of the Parent ending March 31, 2019, and $66,858,674 for the fiscal quarter of the Parent ending June 30, 2019.

 

“Consolidated Funded Indebtedness” means Funded Indebtedness of the Parent and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP.

 

“Consolidated Interest Charges” means, for any period, for the Parent and its Restricted Subsidiaries on a consolidated basis, an amount equal to the sum of (a) all interest, premium payments, debt discount (but excluding any non-cash interest expense attributable to the accretion of debt discount), fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, plus (b) the portion of rent expense with respect to such period under Capital Leases that is treated as interest in accordance with GAAP plus (c) the implied interest component of Synthetic Leases with respect to such period.

 

“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four fiscal quarters most recently ended to (b) the cash portion of Consolidated Interest Charges for the period of the four fiscal quarters most recently ended; provided, that, for any calculation of the Consolidated Interest Coverage Ratio occurring prior to the one-year anniversary of the First Amendment Effective Date, actual cash Consolidated Interest Charges from the First Amendment Effective Date through the date of such calculation shall be annualized for purposes of calculation of the cash portion of Consolidated Interest Charges for the relevant calculation period of four fiscal quarters.

 

“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.

 

“Consolidated Net Income” means, for any period, for the Parent and its Restricted Subsidiaries on a consolidated basis, (a) the net income of the Parent and its Restricted Subsidiaries for that period (excluding (i) extraordinary gains and losses for such period, (ii) the net income of any Restricted Subsidiary that is not a Loan Party during such period to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Restricted Subsidiary during such period, except that the Parent’s equity in any net loss of any such Restricted Subsidiary for such period shall be included in determining Consolidated Net Income, (iii) any income (or loss) for such period of any Person if such Person is not a Restricted Subsidiary, except that the Parent’s and its consolidated Restricted Subsidiaries’ equity in the net income of any such Person for such period shall be included in Consolidated Net Income up to the amount of cash and Cash Equivalents actually distributed by such Person during such period to the Parent or a Restricted Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Restricted Subsidiary that is not a Loan Party, such Restricted Subsidiary is not precluded from further distributing such amount to a Loan Party as described in clause (ii) hereof), (iv) to the extent deducted from net income of the Parent and its Restricted Subsidiaries during such period, non-cash losses, charges and expenses that do not (A) represent a cash item in such period or any future period, an accrual or reserve for potential cash charges in any future period or amortization of a prepaid cash charge that was paid in a prior period, or (B) relate to a write-down of accounts receivable or inventory, (v) to the extent included in net income of the Parent and its Restricted Subsidiaries during such period, non-cash gains, (vi) to the extent deducted from net income of the Parent and its Restricted Subsidiaries during such period, Transaction Costs incurred not later than eighteen (18) months after the Closing Date (or, with respect to Transaction Costs relating to any Indebtedness incurred pursuant to Section 8.03(f) or 8.03(g), six (6) months after the issuance, extension, refinancing, renewal, redemption or replacement of such Indebtedness to which such Transaction Costs relate), as determined in accordance with GAAP, (vii) to the extent deducted from net income of the Parent and its Restricted Subsidiaries during such period, and to the extent not capitalized, cash fees, costs and expenses paid during such period in connection with the consummation of Permitted Acquisitions and other Investments and Dispositions permitted hereunder, and (viii) to the extent deducted from net income of the Parent and its Restricted Subsidiaries during such period, non-recurring cash costs, charges and expenses for severance, restructuring, plant closings and integration; provided that the aggregate of the amount excluded from Consolidated Net Income pursuant to this clause (viii) and the amount added to Consolidated Net Income pursuant to clause (b) of this definition for any period shall not exceed 15% of Consolidated EBITDA (calculated without giving effect to this clause (viii) and clause (b) of this definition) for such period) plus (b) to the extent not otherwise included in net income of the Parent and its Restricted Subsidiaries during such period, the amount of pro forma “run-rate” cost savings and synergies for such period that are reasonably projected by the Borrowers in good faith to be realized in connection with a Permitted Acquisition, as a result of actions which have actually been taken in such period or are projected by the Borrowers in good faith to be taken, within eighteen (18) months after the date such Permitted Acquisition is consummated, in each case after the Closing Date and in each case net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated Net Income from such actions, and which are reasonably identifiable and factually supportable related to specific actions taken or to be taken after the Closing Date; provided, that (i) in each Compliance Certificate, Pro Forma Compliance Certificate or other certification as to the Consolidated Leverage Ratio, the Consolidated Net Leverage Ratio, the Consolidated Senior Secured Leverage Ratio and the Consolidated Interest Coverage Ratio delivered hereunder, the Borrower Representative shall certify that any such cost savings and synergies included pursuant to this clause (b) are (A) reasonably anticipated in good faith to be realized within eighteen (18) months after the consummation of the Permitted Acquisition which is expected to result in such cost savings or synergies and (B) factually supportable as determined reasonably and in good faith by the Borrowers, (ii) no cost savings or synergies shall be added pursuant to this clause (b) to the extent duplicative of any amounts otherwise added to, or included in, Consolidated Net Income or Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period, and (iii) projected amounts (that are not yet realized) may no longer be added in calculating Consolidated Net Income pursuant to this clause (b) to the extent occurring more than eighteen (18) months after the consummation of the Permitted Acquisition which is expected to result in such cost savings or synergies; provided further that the aggregate of the amount added to Consolidated Net Income under this clause (b) and the amount excluded from Consolidated Net Income pursuant to sub-clause (viii) of clause (a) of this definition for any period shall not exceed 15% of Consolidated EBITDA (calculated without giving effect to this clause (b) and sub-clause (viii) of clause (a) of this definition) for such period.

 

“Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the sum of (i) Consolidated Funded Indebtedness as of such date minus (ii) unrestricted cash and Cash Equivalents of the Parent and its Restricted Subsidiaries as of such date in an amount not to exceed $125,000,000, to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.

 

“Consolidated Senior Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness (other than Subordinated Indebtedness) secured by a Lien on any property or assets of the Parent or any of its Restricted Subsidiaries as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.

 

“Consolidated Total Assets” means total assets of the Parent and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP.

 

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

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.  Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent.

 

“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“Covered Party” has the meaning specified in Section 11.24.

 

“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

 

“Cumulative Credit” means, at any date, an amount, not less than zero in the aggregate, determined on a cumulative basis equal to the sum of (without duplication):

 

(a)          an amount equal to 50% of the cumulative Consolidated Net Income for the period (taken as one accounting period) from July 1, 2014 to the end of the Parent’s fiscal quarter most recently ended in respect of which a Compliance Certificate has been delivered as required hereunder (or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit); plus

 

(b)         the cash and Cash Equivalent proceeds (net of direct costs incurred in connection therewith, including legal, accounting and investment banking fees, sales commissions and underwriting discounts, and taxes paid or estimated to be payable as a result thereof) received by the Parent of any Qualified Equity Issuance consummated after the Closing Date; plus

 

(c)         in the event that all or a portion of the Cumulative Credit has been applied to make an Investment pursuant to Section 8.02(r), an amount equal to the aggregate amount received by the Parent or any Restricted Subsidiary in cash and Cash Equivalents from (i) the sale (other than to the Parent or any Restricted Subsidiary) of any such Investment, (ii) any dividend or other distribution received in respect of any such Investment or (iii) returns of principal, repayments and similar payments received in respect of any such Investment, net of (in any such case under the foregoing clauses (i), (ii) and (iii)) (A) direct costs incurred in connection therewith, including legal, accounting and investment banking fees, sales commissions and underwriting discounts, (B) taxes paid or estimated to be payable as a result thereof, and (C) amounts applied to the repayment of Indebtedness secured by a Lien permitted hereunder on the Investment sold (other than a Lien pursuant to a Collateral Document);

 

as such amount shall be reduced dollar for dollar from time to time prior to such date by the amount of the Cumulative Credit applied to make Investments, Restricted Payments or Junior Debt Payments as permitted hereunder.

 

“Debt Issuance” means the issuance by any Loan Party or any Restricted Subsidiary of any Indebtedness other than Indebtedness permitted under Section 8.03.

 

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

 

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

 

“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.

 

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

“Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower Representative in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower Representative, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower Representative, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interests in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower Representative, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.

 

“Deferred Contribution Contingent Payment” means the “Contingent Trust Contribution” (as defined in the Deferred Contribution Letter Agreement).

 

“Deferred Contribution Letter Agreement” means that certain letter agreement, dated November 29, 2017, among GST LLC, the Parent, EnPro Holdings and the Asbestos Trust, as in effect on the Closing Date.

 

“Designated Borrower” has the meaning specified in the introductory paragraph hereto.

 

“Designated Borrower Notice” has the meaning specified in Section 2.16.

 

“Designated Borrower Request and Assumption Agreement” has the meaning specified in Section 2.16.

 

“Designated Borrower Requirements” has the meaning specified in Section 2.16.

 

“Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.

 

“Designated Lender” has the meaning specified in Section 2.17.

 

“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received by any Loan Party or Restricted Subsidiary in connection with a Disposition pursuant to Section 8.05 that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower Representative, setting forth the basis of such valuation, less the amount of cash or Cash Equivalents received in connection with a subsequent sale, redemption or repurchase of or collection or payment on such Designated Non-Cash Consideration.

 

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any Sale and Leaseback Transaction) of any property by any Loan Party or any Restricted Subsidiary (including the Equity Interests of any Subsidiary), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith, but excluding (a) the sale, lease, license, transfer or other disposition of inventory in the ordinary course of business; (b) licenses or leases of IP Rights in the ordinary course of business (provided that no such license or lease shall be on an exclusive basis if the IP Rights which are the subject thereof are necessary or desirable to enable the Administrative Agent to sell, dispose, or complete the manufacture of, or otherwise exercise its rights with respect to, any Collateral); (c) the termination of a lease of real or personal Property that is not necessary to the conduct of a Loan Party’s business in the ordinary course, would not reasonably be expected to have a Material Adverse Effect and does not result from a Loan Party’s default or failure to perform under such lease; (d) the sale, lease, license, transfer or other disposition of surplus, obsolete or worn out property or property no longer used or useful in the conduct of business of any Loan Party and its Restricted Subsidiaries; (e) any sale, lease, license, transfer or other disposition of property to any Loan Party or any Restricted Subsidiary; provided, that (i) if the transferor of such property is a Loan Party (other than a Designated Borrower), then the transferee thereof must be a Loan Party (other than a Designated Borrower), (ii) if the transferor of such property is a Designated Borrower, then the transferee thereof must be a Loan Party or (iii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 8.02; (f) any Involuntary Disposition; (g) the Deferred Contribution Contingent Payment; (h) Excess Asbestos Insurance Recovery Contributions; (i) the disposition or pledge of Equity Interests in Unrestricted Subsidiaries; (j) the sale or disposition of Cash Equivalents for fair market value; (k) the potential disposition described in a writing delivered to the Administrative Agent prior to the Closing Date (and posted on SyndTrak for the Lenders) (the “Scheduled Dispositions”); (l) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Parent and its Restricted Subsidiaries; (m) dispositions of accounts receivable in connection with the collection or compromise thereof; (n) the sale, lease, transfer or other disposition of accounts receivable to a Receivables Subsidiary in connection with, and pursuant to the terms of, a Securitization Transaction permitted pursuant to Section 8.03(t); and (o) the issuance of minority Equity Interests in the Lunar Acquisition Subsidiary to holders of the Equity Interests in LeanTeq and LeanTeq Co., Ltd., a corporation incorporated in Taiwan, upon execution and delivery of the Lunar Acquisition Subsidiary LLC Agreement, so long as, immediately after giving effect thereto, such minority Equity Interests represent no more than 10% of the issued and outstanding Equity Interests in the Lunar Acquisition Subsidiary.

 

“Disqualified Stock” means any Equity Interest which, by its terms (or by the terms of any security into which it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event or condition, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, or otherwise has any distributions or other payments which are mandatory or otherwise required at any time (except in each case as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale 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), on or prior to the date that is ninety-one (91) days after the Maturity Date or (b) is convertible into or exchangeable for (x) debt securities or (y) any Equity Interest referred to in clause (a) above, in each case at any time prior to the date that is ninety-one (91) days after the Maturity Date; provided, that, if such Equity Interests are issued pursuant to a plan for the benefit of employees or other service providers of the Parent or any Restricted Subsidiary, such Equity Interests shall not constitute Disqualified Stock solely because they may be required to be repurchased by the Parent or a Restricted Subsidiary in order to satisfy applicable statutory or regulatory obligations or in connection with such employee’s or other service provider’s termination, death or disability.

 

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

 

“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.

 

“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia.

 

“Earn Out Obligations” means, with respect to an Acquisition, all obligations of the Parent or any Restricted Subsidiary to make earn out or other contingent purchase price payments (including purchase price adjustments but excluding contingent indemnity payments and consulting agreement payments providing reasonable compensation for services rendered) pursuant to the documentation relating to such Acquisition.  For purposes of determining the aggregate consideration paid for an Acquisition at the time of such Acquisition, the amount of any Earn Out Obligations shall be deemed to be the maximum amount of the earn-out payments in respect thereof as specified in the documents relating to such Acquisition.  For purposes of determining the amount of any Earn Out Obligations to be included in the definition of Funded Indebtedness, the amount of Earn Out Obligations shall be deemed to be the aggregate liability in respect thereof, as determined in accordance with GAAP.

 

“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.

 

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).

 

“Eligible Currency” means any lawful currency other than Dollars that is readily available, freely transferable and convertible into Dollars in the international interbank market available to the Revolving Lenders or the L/C Issuer, as applicable, in such market and as to which a Dollar Equivalent may be readily calculated. If, after the designation by the Revolving Lenders or the L/C Issuer, as applicable, of any currency as an Alternative Currency, any change in currency controls or exchange regulations or any change in the national or international financial, political or economic conditions are imposed in the country in which such currency is issued, result in, in the reasonable opinion of the Administrative Agent or the Required Revolving Lenders (in the case of any Loans to be denominated in an Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit to be denominated in an Alternative Currency), (a) such currency no longer being readily available, freely transferable and convertible into Dollars, (b) a Dollar Equivalent being no longer readily calculable with respect to such currency, (c) providing such currency being impracticable for the Revolving Lenders or the L/C Issuer, as applicable, or (d) such currency no longer being a currency in which the Required Revolving Lenders or the L/C Issuer, as applicable, are willing to make such Credit Extensions (each of (a), (b), (c), and (d) a “Disqualifying Event”), then the Administrative Agent shall promptly notify the Revolving Lenders and the Borrower Representative, and such country’s currency shall no longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer exist. Within five (5) Business Days after receipt of such notice from the Administrative Agent, the Borrowers shall repay all Loans in such currency to which the Disqualifying Event applies or convert such Loans into the Dollar Equivalent of Loans in Dollars, subject to the other terms contained herein.

 

“EnPro Holdings” has the meaning specified in the introductory paragraph hereto.

 

“Environmental Laws” means any and all federal, state, local, foreign and other applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

 

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

“Equity Interests”  means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

 

“ERISA” means the Employee Retirement Income Security Act of 1974.

 

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with a Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).

 

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Sections 4041(c) or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Internal Revenue Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate.

 

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

 

“Euro” and “€” mean the single currency of the Participating Member States.

 

“Eurocurrency Rate” means:

 

(a)          With respect to any Credit Extension:

 

(i)          denominated in a LIBOR Quoted Currency, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;

 

(ii)          denominated in Canadian dollars, the rate per annum equal to the Canadian Dealer Offered Rate (“CDOR”) or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at or about 10:00 a.m. (Toronto, Ontario time) on the Rate Determination Date with a term equivalent to such Interest Period; and

 

(iii)        denominated in any other Non-LIBOR Quoted Currency, the rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by the Administrative Agent and the Lenders pursuant to Section 1.06; and

 

(b)         for any rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at approximately 11:00 a.m., London time, determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that date;

 

provided, that, (i) to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further, that, to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied as otherwise reasonably determined by the Administrative Agent and (ii) if the Eurocurrency Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate”.  Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency.  All Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.

 

“Event of Default” has the meaning specified in Section 9.01.

 

“Excess Asbestos Insurance Recovery Contributions” means any contributions to the Asbestos Trust by EnPro Holdings (or another Loan Party on EnPro Holdings’ behalf) of recoveries by EnPro Holdings (or any of its predecessors) from any Additional Coltec Insurer and/or from any successor on account of the Additional Coltec Insurance (as such terms are defined in the Modified Joint Plan of Reorganization) that are required by the Modified Joint Plan of Reorganization to be contributed to the Asbestos Trust.

 

“Excluded Property” means, with respect to any Loan Party, including any Person that becomes a Loan Party after the Closing Date as contemplated by Section 7.12, (a) any leasehold interest in real property, (b) any owned real property, (c) any owned or leased personal property which is located outside of the United States, (d) any personal property (including, without limitation, motor vehicles) in respect of which perfection of a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (e) the Equity Interests of (i) any direct Foreign Subsidiary of a Loan Party to the extent (and for so long as) not required to be pledged to secure the Obligations pursuant to Section 7.14(a) and (ii) any Unrestricted Subsidiary, (f) [reserved], (g) any property which, subject to the terms of Section 8.09, is subject to a Lien of the type described in Section 8.01(i) pursuant to documents which prohibit such Loan Party from granting any other Liens in such property, and (h) the Equity Interests of ▇▇▇▇▇▇▇ Valqua Japan, Inc. to the extent the grant of a security interest therein in the manner contemplated by the Security Agreement, under the terms of the Organization Documents of ▇▇▇▇▇▇▇ Valqua Japan, Inc., is prohibited or would result in the termination of such Equity Interests, or requires consent of any other party to such Organization Documents, or gives the other parties thereto the right to terminate or otherwise alter a Loan Party’s rights, titles and interests with respect to such Equity Interests or under such Organization Documents (including upon the giving of notice or the lapse of time or both); provided that (i) the inclusion of the Equity Interests of ▇▇▇▇▇▇▇ Valqua Japan, Inc. as “Excluded Property” pursuant to this clause (h) shall only apply to the extent that any such prohibition, requirement or right is not rendered ineffective pursuant to the Uniform Commercial Code or any other applicable Law (including Debtor Relief Laws) and (ii) in the event of the termination or elimination of any such prohibition or the requirement for any consent contained in the Organization Documents of ▇▇▇▇▇▇▇ Valqua Japan, Inc., to the extent sufficient to permit the Equity Interests of ▇▇▇▇▇▇▇ Valqua Japan, Inc. to become Collateral under the Security Agreement, or upon the granting of any such consent, or waiving or terminating any requirement for such consent, a security interest in the Equity Interests of ▇▇▇▇▇▇▇ Valqua Japan, Inc. shall be automatically and simultaneously granted under the Security Agreement and the Equity Interests of ▇▇▇▇▇▇▇ Valqua Japan, Inc. shall be included as Collateral thereunder and shall no longer constitute Excluded Property.

 

“Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Loan Party of, or the grant under a Loan Document by such Loan Party of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 4.08 hereof and any and all guarantees of such Loan Party’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Loan Party, or grant by such Loan Party of a security interest, becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or security interest becomes illegal.

 

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any 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 Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. Federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 11.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that pursuant to Section 3.01(a)(ii), (a)(iii) or (c), 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) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding taxes imposed under FATCA.

 

“Existing Credit Agreement” means that certain Amended and Restated Credit Agreement dated as of August 28, 2014 among the Domestic Borrowers, certain Subsidiaries of the Parent, the lenders party thereto and Bank of America, as administrative agent, swing line lender and l/c issuer, as amended, supplemented or otherwise modified from time to time until (but not including) the Closing Date.

 

“Existing Letters of Credit” means the letters of credit described by date of issuance, letter of credit number, undrawn amount, name of beneficiary and date of expiry on Schedule 1.01(b).

 

“Facilities” means, at any time, a collective reference to the facilities and real properties owned, leased or operated by any Loan Party or any Restricted Subsidiary.

 

“FASB ASC” means the Accounting Standards Codification of the Financial Accounting Standards Board.

 

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.

 

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

 

“Fee Letter” means the letter agreement dated July 19, 2019 among the Domestic Borrowers, Bank of America and BofA Securities.

 

“First Amendment” means that certain First Amendment to Second Amended and Restated Credit Agreement, dated as of the First Amendment Effective Date, by and among the Domestic Borrowers, the Guarantors party thereto, the Lunar Acquisition Subsidiary, LeanTeq, the Lenders party thereto, and Bank of America, as Administrative Agent, Swing Line Lender and L/C Issuer.

 

“First Amendment Effective Date” means September 25, 2019.

 

“Foreign Lender” means, with respect to any Borrower, (a) if such Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

“Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Revolving Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Revolving Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Revolving Lenders in accordance with the terms hereof.

 

“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

“Funded Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

 

(a)        the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including the Obligations) and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

 

(b)          all purchase money Indebtedness;

 

(c)          the principal portion of all obligations under conditional sale or other title retention agreements relating to property purchased by such Person or any Subsidiary thereof (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);

 

(d)          all direct obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

 

(e)          all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), including, without limitation, any Earn Out Obligations;

 

(f)           the Attributable Indebtedness of Capital Leases, Securitization Transactions and Synthetic Leases;

 

(g)          all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment prior to the Maturity Date in respect of any Equity Interests in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends;

 

(h)         all Funded Indebtedness of others secured by (or for which the holder of such Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed;

 

(i)           all Guarantees with respect to Funded Indebtedness of the types specified in clauses (a) through (h) above of another Person; and

 

(j)          all Funded Indebtedness of the types referred to in clauses (a) through (i) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or joint venturer, except to the extent that Funded Indebtedness is expressly made non-recourse to such Person.

 

For purposes hereof, the amount of any direct obligation arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments shall be the maximum amount available to be drawn thereunder.

 

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied (except for changes in the application of which Parent’s accountants concur) and as in effect from time to time.

 

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

“GST LLC” means ▇▇▇▇▇▇▇ Sealing Technologies, LLC, a North Carolina limited liability company.

 

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a corresponding meaning.

 

“Guarantors” means (a) each Domestic Subsidiary identified as a “Guarantor” on the signature pages hereto, (b) each other Domestic Subsidiary that joins as a Guarantor pursuant to Section 7.12, (c) with respect to (i) Obligations under any Secured Swap Agreement, (ii) Obligations under any Secured Treasury Management Agreement and (iii) any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 4.01 and 4.08) under the Guaranty, the Domestic Borrowers, (d) with respect to the Obligations of a Borrower, each Domestic Borrower, (e) with respect to the Obligations of a Designated Borrower, each other Designated Borrower (subject to Section 2.16(b)) and (f) the successors and permitted assigns of the foregoing.

 

“Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent, the Lenders and the other holders of the Obligations pursuant to Article IV.

 

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

 

“HMT” has the meaning set forth in Section 6.22.

 

“Honor Date” has the meaning set forth in Section 2.03(c).

 

“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.

 

“Impacted Loans” has the meaning specified in Section 3.03.

 

“Incremental Facilities” has the meaning specified in Section 2.01(c).

 

“Incremental Facility Amendment” has the meaning specified in Section 2.01(c).

 

“Incremental Facility Commitment” has the meaning specified in Section 2.01(c).

 

“Incremental Revolving Increase” has the meaning specified in Section 2.01(c).

 

“Incremental Term Facility” has the meaning specified in Section 2.01(c).

 

“Incremental Term Loans” means the term loans advanced under any Incremental Term Facility.

 

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

 

(a)          all Funded Indebtedness;

 

(b)          the Swap Termination Value of any Swap Contract;

 

(c)          all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) and (b) above of any other Person; and

 

(d)          all Indebtedness of the types referred to in clauses (a) through (c) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person or a Subsidiary thereof is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to such Person or such Subsidiary.

 

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

 

“Indemnitee” has the meaning specified in Section 11.04(b).

 

“Information” has the meaning specified in Section 11.07.

 

“Interest Payment Date” means (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the third calendar day after the end of each March, June, September and December and the Maturity Date.

 

“Interest Period” means as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter (in each case, subject to availability for the interest rate applicable to the relevant currency), as selected by the Borrower Representative in its Loan Notice; provided that:

 

(a)         any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

(b)         any Interest Period pertaining to a Eurocurrency Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

(c)          no Interest Period shall extend beyond the Maturity Date.

 

“Interim Financial Statements” means the unaudited consolidated financial statements of the Parent and its Subsidiaries for the fiscal quarter ended June 30, 2019, including balance sheets and statements of income or operations, shareholders’ equity and cash flows.

 

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.

 

“Internal Revenue Service” means the United States Internal Revenue Service.

 

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) an Acquisition.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested after the Closing Date, without adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any returns or distributions of capital or repayment of principal actually received in cash by such Person with respect thereto (but only to the extent that the aggregate amount of all such returns, distributions and repayments with respect to such Investment does not exceed the principal amount of such Investment and less any such amounts which increase the Cumulative Credit).

 

“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Loan Party or any of its Restricted Subsidiaries.

 

“IP Rights” has the meaning specified in Section 6.17.

 

“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 Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the applicable Borrower (or any Restricted Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.

 

“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit E executed and delivered by a Domestic Subsidiary in accordance with the provisions of Section 7.12.

 

“Judgment Currency” has the meaning specified in Section 11.23.

 

“Junior Debt Payment” has the meaning specified in Section 8.12.

 

“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

“L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage. All L/C Advances shall be denominated in Dollars.

 

“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of Revolving Loans.  All L/C Borrowings shall be denominated in Dollars.

 

“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

 

“L/C Issuer” means Bank of America, through itself or through one of its designated Affiliates or branch offices, in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.

 

“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

“LCA Election” has the meaning specified in Section 1.03(e).

 

“LCA Test Date” has the meaning specified in Section 1.03(e).

 

“LeanTeq” means LeanTeq, LLC, a California limited liability company.

 

“Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, each Person that executes a lender joinder agreement or commitment agreement in accordance with Section 2.01(c), each of their successors and assigns and, as the context requires, includes the Swing Line Lender. The term “Lender” shall include any Designated Lender.

 

“Lending Office” means, as to the Administrative Agent, the L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Borrower Representative and the Administrative Agent; which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.  Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.

 

“Letter of Credit” means any commercial or standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder and shall include the Existing Letter(s) of Credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.

 

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a letter of credit in the form from time to time in use by the L/C Issuer.

 

“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

“Letter of Credit Fee” has the meaning specified in Section 2.03(h).

 

“Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate Revolving Commitments and (b) $30,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

“Leverage Increase Period” has the meaning specified in Section 8.11(a).

 

“LIBOR” has the meaning specified in the definition of “Eurocurrency Rate”.

 

“LIBOR Quoted Currency” means each of the following currencies: Dollars; Euro; Sterling; Yen; and Swiss Franc, in each case as long as there is a published LIBOR rate with respect thereto.

 

“LIBOR Rate” has the meaning specified in the definition of “Eurocurrency Rate”.

 

“LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).

 

“LIBOR Successor Rate” has the meaning specified in Section 3.07.

 

“LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Eurocurrency Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Borrower Representative).

 

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

 

“Limited Condition Acquisition” means any Permitted Acquisition the consummation of which is not conditioned on the availability of, or on obtaining, third-party financing.

 

“Loan” means an extension of credit by a Lender to the Borrowers under Article II in the form of a Revolving Loan, a Term Loan, a Swing Line Loan or an Incremental Term Loan.

 

“Loan Documents” means this Agreement, each Designated Borrower Request and Assumption Agreement, each Note, each Issuer Document, each Joinder Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14, each Subordination Agreement, each Collateral Document, the Fee Letter and any other agreement, instrument or document designated by its terms as a “Loan Document” (but specifically excluding Secured Swap Agreements and Secured Treasury Management Agreements).

 

“Loan Notice” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans, in each case pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative.

 

“Loan Parties” means, collectively, the Borrowers and each Guarantor.

 

“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

“Lunar Acquisition Subsidiary” means Lunar Investment, LLC, a Delaware limited liability company.

 

“Lunar Acquisition Subsidiary LLC Agreement” means that certain Amended and Restated Limited Liability Company Operating Agreement, dated as of September 25, 2019, by and among the Lunar Acquisition Subsidiary and the members of the Lunar Acquisition Subsidiary party thereto, as the same may be amended, restated, modified or supplemented from time to time in accordance with the terms of this Agreement.

 

“Luxembourg Pledge Agreement” means that certain share pledge agreement, dated as of November 25, 2014, by and among GGB, Inc., a Delaware corporation, as pledgor, EnPro Luxembourg Holding Company S.à ▇.▇., a private company (société à responsabilité limitée) governed by the laws of the Grand Duchy of Luxembourg, as the company, and Bank of America, as the pledgee.

 

“Master Agreement” has the meaning specified in the definition of “Swap Contract”.

 

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties or condition (financial or otherwise) of the Parent and its Restricted Subsidiaries, taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document to which it is a party; (c) a material impairment of the ability of the Parent and its Restricted Subsidiaries, taken as a whole, to perform their obligations under any Loan Document to which they are a party; or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against any Borrower or any Material Guarantor of any Loan Document to which it is a party.

 

“Material Guarantor” means, at any time of determination, a Guarantor that is a Material Subsidiary.

 

“Material Subsidiary” means, at any time of determination, a Subsidiary of the Parent with assets that have an aggregate net book value of more than $20,000,000.

 

“Maturity Date” means September 25, 2024; provided, that, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

 

“Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 102% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i), (a)(ii) or (a)(iii), an amount equal to 102% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.

 

“Modified Joint Plan of Reorganization” means the Modified Joint Plan of Reorganization of ▇▇▇▇▇▇▇ Sealing Technologies LLC, et al. and OldCo, LLC, Proposed Successor by Merger to Coltec Industries Inc, dated May 20, 2016, as modified prior to the Closing Date, filed with the U.S. Bankruptcy Court for the Western District of North Carolina and effective as of July 31, 2017.

 

“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc. and any successor thereto.

 

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which a Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

 

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including a Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

 

“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by any Loan Party or any Restricted Subsidiary in respect of any Disposition, Debt Issuance or Involuntary Disposition, net of (a) direct costs incurred in connection therewith (including, without limitation, legal, accounting and investment banking fees and sales commissions) that are payable to a Person that is not a Loan Party or a Subsidiary or an Affiliate of any of the foregoing, (b) taxes paid or estimated in good faith to be payable as a result thereof, (c) in the case of a Disposition or an Involuntary Disposition by a non-Wholly Owned Subsidiary that is a Restricted Subsidiary, the pro rata portion of the Net Cash Proceeds thereof (calculated without regard to this clause (c)) allocable to the holders (other than the Parent or any Restricted Subsidiary) of the Equity Interests in such non-Wholly Owned Subsidiary and not available for distribution to or for the account of a Borrower or a Wholly Owned Subsidiary that is a Restricted Subsidiary as a result thereof and (d) in the case of any Disposition or any Involuntary Disposition, the amount necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Administrative Agent) on the related property; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non‑cash consideration received by any Loan Party or any Restricted Subsidiary in any Disposition, Debt Issuance or Involuntary Disposition.

 

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (b) has been approved by the Required Lenders.

 

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

“Non-LIBOR Quoted Currency” means any currency other than a LIBOR Quoted Currency.

 

“Note” has the meaning specified in Section 2.11(a).

 

“Notice of Loan Prepayment” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit K or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative.

 

“Obligations” means with respect to each Borrower and each Guarantor, (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, and (b) all obligations of any Loan Party or any Subsidiary owing to a Treasury Management Bank or a Swap Bank in respect of Secured Treasury Management Agreements or Secured Swap Agreements, in the case of each of clauses (a) and (b), whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, however, that the “Obligations” of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.

 

“OFAC” has the meaning set forth in Section 6.22.

 

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

 

“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 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 3.06).

 

“Outstanding Amount” means (a) with respect to any Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by any Borrower of Unreimbursed Amounts.

 

“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for such currency to major banks in such interbank market.

 

“Parent” has the meaning specified in the introductory paragraph hereto.

 

“Participant” has the meaning specified in Section 11.06(d).

 

“Participant Register” has the meaning specified in Section 11.06(d).

 

“Participating Member State” means any member state of the European Union that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

 

“Pension Funding Rules” means the rules of the Internal Revenue Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304 and 305 of ERISA.

 

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by any Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to minimum funding standards under Section 412 of the Internal Revenue Code.

 

“Permitted Acquisitions” means Investments consisting of an Acquisition by any Loan Party (other than a Designated Borrower), provided that (a) no Default shall have occurred and be continuing or would result from such Acquisition, (b) the property acquired (or the property of the Person acquired) in such Acquisition is used or useful in a line of business permitted under Section 8.07, (c) the Administrative Agent shall have received all items in respect of the Equity Interests or property acquired in such Acquisition required to be delivered by the terms of Section 7.12 and/or Section 7.14 on or before the date by which such items are required to be delivered, (d) in the case of an Acquisition of the Equity Interests of another Person, the board of directors (or other comparable governing body) of such other Person shall have not announced that it will oppose such Acquisition (and, in the case of an Acquisition of the Equity Interest of such Person by merger, the board of directors (or other comparable governing body) of such Person shall have duly approved such merger), (e) upon giving effect to such Acquisition and any incurrence of Indebtedness in connection therewith on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter end for which the Borrowers were required to deliver financial statements pursuant to Section 7.01(a) or (b) and, if requested by the Administrative Agent for any Acquisition for which the purchase price (including Earnout Obligations) exceeds the Threshold Amount, the Borrower Representative shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating such compliance, (f) the representations and warranties made by the Loan Parties in each Loan Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) at and as if made as of the date of such Acquisition (after giving effect thereto) except to the extent such representations and warranties expressly relate to an earlier date in which case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date and except that for purposes of this clause (g), the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01, and (g) if such transaction involves the purchase of an interest in a partnership between a Borrower (or a Restricted Subsidiary) as a general partner and entities unaffiliated with the Borrowers or such Restricted Subsidiary as the other partners, such transaction shall be effected by having such equity interest acquired by a corporate holding company directly or indirectly wholly-owned by the Parent newly formed for the sole purpose of effecting such transaction.

 

“Permitted Disposition Amount” has the meaning specified in Section 8.05.

 

“Permitted Liens” means, at any time, Liens in respect of property of any Loan Party or any of its Restricted Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.

 

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Borrower or any ERISA Affiliate or any such Plan to which any Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.

 

“Platform” has the meaning specified in Section 7.02.

 

“Pro Forma Basis”, “Pro Forma Compliance” and “Pro Forma Effect” means, in respect of a Specified Transaction, that such Specified Transaction and the following transactions in connection therewith (to the extent applicable) shall be deemed to have occurred as of the first day of the applicable period of measurement for the applicable covenant or requirement: (a) (i) with respect to any Disposition, Involuntary Disposition or sale, transfer or other disposition that results in a Person ceasing to be a Subsidiary, or any designation of a Restricted Subsidiary as an Unrestricted Subsidiary, income statement and cash flow statement items (whether positive or negative) attributable to the Person or property disposed of or the Restricted Subsidiary designated as an Unrestricted Subsidiary shall be excluded and (ii) with respect to any Acquisition, Investment or designation of an Unrestricted Subsidiary as a Restricted Subsidiary, income statement and cash flow statement items (whether positive or negative) attributable to the Person or property acquired or the Unrestricted Subsidiary designated as a Restricted Subsidiary shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for the Parent and its Restricted Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01 and (B) such items are supported by financial statements or other information reasonably satisfactory to the Administrative Agent, (b) any retirement of Indebtedness of the Parent or any Restricted Subsidiary and (c) any incurrence or assumption of Indebtedness by the Parent or any Restricted Subsidiary (and if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination); provided, that, Pro Forma Basis, Pro Forma Compliance and Pro Forma Effect in respect of any Specified Transaction shall be calculated in a reasonable and factually supportable manner and certified by a Responsible Officer of the Borrower Representative; provided, further, that, at all times prior to the first delivery of financial statements pursuant to Section 7.01(a) or (b), this definition shall be applied based on the pro forma financial statements of the Parent and its Restricted Subsidiaries delivered to the Administrative Agent prior to the Closing Date (and posted on SyndTrak for the Lenders) and thereafter, based on the most recent financial statements delivered pursuant to Section 7.01(a) or (b).

 

“Pro Forma Compliance Certificate” means, in respect of any Specified Transaction, a certificate of a Responsible Officer of the Borrower Representative containing reasonably detailed calculations of the Consolidated Net Leverage Ratio, the Consolidated Leverage Ratio, the Consolidated Senior Secured Leverage Ratio and/or the Consolidated Interest Coverage Ratio (as applicable under the terms of this Agreement in connection with such Specified Transaction) as of the most recent fiscal quarter end for which the Borrowers were required to deliver financial statements pursuant to Section 7.01(a) or (b) after giving Pro Forma Effect to the applicable Specified Transaction; provided, that, at all times prior to the first delivery of financial statements pursuant to Section 7.01(a) or (b), such certificate shall contain calculations based on the pro forma financial statements of the Parent and its Restricted Subsidiaries delivered to the Administrative Agent prior to the Closing Date (and posted on SyndTrak for the Lenders).

 

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

 

“Public Lender” has the meaning specified in Section 7.02.

 

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

“QFC Credit Support” has the meaning specified in Section 11.24.

 

“Qualified Acquisition” means (a) a Permitted Acquisition with aggregate Acquisition Consideration of at least $100,000,000, or (b) a series of related Permitted Acquisitions in any twelve (12) month period with aggregate Acquisition Consideration for all such Permitted Acquisitions of at least $100,000,000; provided, that, for any such Permitted Acquisition or series of related Permitted Acquisitions to qualify as a Qualified Acquisition, a Responsible Officer of the Borrower Representative shall have delivered to the Administrative Agent a certificate (any such certificate, a “Qualified Acquisition Notice”) on or prior to the consummation of such Permitted Acquisition or the final closing date with respect to a series of related Permitted Acquisitions (i) certifying that the Permitted Acquisition or series of related Permitted Acquisitions meet the criteria set forth in the foregoing clause (a) or clause (b), as applicable, and (ii) notifying the Administrative Agent that the Borrower has elected to treat such Permitted Acquisition or series of related Permitted Acquisitions as a Qualified Acquisition.

 

“Qualified Acquisition Notice” has the meaning specified in the definition of “Qualified Acquisition.”

 

“Qualified Acquisition Pro Forma Calculation” means, to the extent required in connection with determining the permissibility of any Permitted Acquisition or series of related Permitted Acquisitions that constitute a Qualified Acquisition, the calculations required by clause (e) in the proviso to the definition of “Permitted Acquisition.”

 

“Qualified ECP Guarantor” means, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualified at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

“Qualified Equity Issuance” means any sale or issuance of any Equity Interests (other than Disqualified Stock) of the Parent or contribution to the capital of the Parent (other than in respect of Disqualified Stock), in each case the proceeds of which are received by, or contributed to the common equity of, the Parent.

 

“Rate Determination Date” means two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such other day as otherwise reasonably determined by the Administrative Agent).

 

“Receivables Subsidiary” means a Restricted Subsidiary special purpose entity formed by the Parent in connection with, and pursuant to the terms of, a Securitization Transaction permitted pursuant to Section 8.03(t).

 

“Recipient” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

 

“Register” has the meaning specified in Section 11.06(c).

 

“Registered Equivalent Notes” means, with respect to any bonds, notes, debentures or similar instruments originally issued in a Rule 144A or other private placement transaction under the United States Securities Act of 1933, substantially identical notes (having the same Guarantees) issued in a dollar for dollar exchange therefor pursuant to an exchange offer registered with the SEC.

 

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

 

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.

 

“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

 

“Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.

 

“Required Revolving Lenders” means, at any time, Revolving Lenders having Total Revolving Exposures representing more than 50% of the Total Revolving Exposures of all Revolving Lenders.  The Total Revolving Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving Lenders at any time; provided that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.

 

“Responsible Officer” means the chief executive officer, president, chief financial officer, vice president, treasurer, assistant treasurer, chief legal officer or chief accounting officer of a Loan Party and, solely for purposes of the delivery of secretary’s certificates or incumbency certificates, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.  To the extent requested by the Administrative Agent, each Responsible Officer will provide an incumbency certificate and appropriate authorization documentation, in each case, in form and substance satisfactory to the Administrative Agent.

 

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests of any Loan Party or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof), or any setting apart of funds or property for any of the foregoing.

 

“Restricted Subsidiary” means any Subsidiary of the Parent other than an Unrestricted Subsidiary.  Each Loan Party (other than, for the avoidance of doubt, the Parent) shall be a Restricted Subsidiary.

 

“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof, (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an Alternative Currency, (iv) in the case of all Existing Letters of Credit denominated in Alternative Currencies, the Closing Date, and (v) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall require.

 

“Revolving Commitment” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrowers pursuant to Section 2.01(b), (b) purchase participations in L/C Obligations and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Commitment” or in the Assignment and Assumption or other agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

“Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.

 

“Revolving Lender” means, at any time, (a) so long as any Revolving Commitment is in effect, any Lender that has a Revolving Commitment at such time or (b) if the Revolving Commitments have terminated or expired, any Lender that has a Revolving Loan or a participation in L/C Obligations or Swingline Loans at such time.

 

“Revolving Loan” has the meaning specified in Section 2.01(b).

 

“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of McGraw Hill Financial, Inc., and any successor thereto.

 

“Sale and Leaseback Transaction” means, with respect to any Loan Party or any Restricted Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Loan Party or such Restricted Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred.

 

“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 determined by the Administrative Agent or the L/C Issuer, 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” has the meaning set forth in Section 6.22.

 

“Scheduled Dispositions” has the meaning set forth in the definition of “Disposition.”

 

“Scheduled Unavailability Date” has the meaning specified in Section 3.07.

 

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

“Secured Parties” has the meaning set forth in Section 10.09.

 

“Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit H.

 

“Secured Swap Agreement” means any Swap Contract permitted under Section 8.03 between any Loan Party or Subsidiary and any Swap Bank; provided that for any of the foregoing to be included as a “Secured Swap Agreement” on any date of determination by the Administrative Agent, the applicable Swap Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

 

“Secured Treasury Management Agreement” means any Treasury Management Agreement between any Loan Party or Subsidiary and any Treasury Management Bank; provided, that for any of the foregoing to be included as a “Secured Treasury Management Agreement” on any date of determination by the Administrative Agent, the applicable Treasury Management Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

 

“Securitization Transaction” means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.

 

“Security Agreement” means the second amended and restated security and pledge agreement dated as of the Closing Date executed in favor of the Administrative Agent, for the benefit of the holders of the Obligations, by each of the Loan Parties (other than the Designated Borrowers).

 

“Senior Notes” means the Senior Notes due October 15, 2026, bearing interest at a per annum rate of 5.75%, issued by Parent in the original principal amount of up to $350,000,000.

 

“Solvent” or “Solvency” means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured.  In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

“Special Notice Currency” means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.

 

“Specified Event of Default” means any Event of Default pursuant to Section 9.01(a), Section 9.01(f) or Section 9.01(g).

 

“Specified Loan Party” has the meaning set forth in Section 4.08.

 

“Specified Transaction” means (a) any Acquisition, any Disposition of assets constituting a business unit, line of business or division of the Parent or any Restricted Subsidiary, any sale, transfer or other disposition that results in a Person ceasing to be a Restricted Subsidiary, any Involuntary Disposition, any Investment that results in a Person becoming a Restricted Subsidiary, in each case, to the extent the value of or consideration for such transaction exceeds the Threshold Amount and whether by merger, consolidation or otherwise, any designation of a Restricted Subsidiary as an Unrestricted Subsidiary or of an Unrestricted Subsidiary as a Restricted Subsidiary, or any incurrence or repayment of Indebtedness in an amount that exceeds the Threshold Amount, or (b) any other event that by the terms of the Loan Documents requires Pro Forma Compliance with a test or covenant, or requires such test or covenant to be calculated on a Pro Forma Basis, or requires such test or covenant to be calculated after giving Pro Forma Effect to such event.

 

“Spot Rate” for a currency means the rate determined by the Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the L/C Issuer 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.

 

“Stemco Kaiser Ad Valorem Tax Relief Transaction” means the transaction described on Schedule 1.01(e).

 

“Sterling” and “₤” mean the lawful currency of the United Kingdom.

 

“Subordinated Indebtedness” means any Indebtedness incurred by a Loan Party that is expressly subordinated and made junior in right of payment to the full and final payment of the Obligations and such Indebtedness has terms and conditions (including terms relating to interest, fees, repayment and subordination) that are reasonably satisfactory to the Administrative Agent.

 

“Subordination Agreement” means any subordination agreement executed and delivered after the Closing Date on terms and conditions acceptable to the Administrative Agent.

 

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent.

 

“Supported QFC” has the meaning specified in Section 11.24.

 

“Swap Bank” means any Person that (a) at the time it enters into a Swap Contract, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, (b) in the case of any Swap Contract in effect on or prior to the Closing Date, is, as of the Closing Date or within 30 days thereafter, a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Swap Contract or (c) within 30 days after the time it enters into the applicable Swap Contract, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in each case, in its capacity as a party to such Swap Contract.

 

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

 

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

 

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the ▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

 

“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

 

“Swing Line Loan” has the meaning specified in Section 2.04(a).

 

“Swing Line Loan Notice” means a notice of a Borrowing of Swing Line Loans pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit B or such other form as is approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative.

 

“Swing Line Sublimit” means an amount equal to the lesser of (a) $15,000,000 and (b) the Aggregate Revolving Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

“Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear on a balance sheet under GAAP.

 

“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.

 

“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

 

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“Term Commitment” means, as to each Term Lender, its obligation to make a Term Loan to the Domestic Borrowers pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Term Commitment” or in the Assignment and Assumption or other agreement pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

“Term Lender” means (a) at any time on or prior to the First Amendment Effective Date, any Lender that has a Term Commitment at such time, and (b) at any time after the First Amendment Effective Date, any Lender that holds a Term Loan at such time.

 

“Term Loan” has the meaning specified in Section 2.01(a).

 

“Threshold Amount” means $50,000,000.

 

“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments of such Lender at such time, the outstanding Loans of such Lender at such time and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.

 

“Total Revolving Exposure” means, as to any Revolving Lender at any time, the unused Revolving Commitment of such Revolving Lender at such time and the Revolving Credit Exposure of such Revolving Lender at such time.

 

“Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, all Swing Line Loans and all L/C Obligations.

 

“Transaction Costs” means all costs, fees, expenses and premiums (including tender and redemption premiums) associated with the issuance, extension, refinancing, renewal, redemption or replacement of any Indebtedness pursuant to Section 8.03(f) or (g) and entering into this Agreement and the other Loan Documents.

 

“Treasury Management Agreement” means any agreement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

 

“Treasury Management Bank” means any Person that (a) at the time it enters into a Treasury Management Agreement, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, (b) in the case of any Treasury Management Agreement in effect on or prior to the Closing Date, is, as of the Closing Date or within 30 days thereafter, a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent and a party to a Treasury Management Agreement or (c) within 30 days after the time it enters into the applicable Treasury Management Agreement, becomes a Lender, the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in each case, in its capacity as a party to such Treasury Management Agreement.

 

“Type” means, with respect to any Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.

 

“UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

 

“United States” and “U.S.” mean the United States of America.

 

“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).

 

“Unrestricted Subsidiary” means, at any date of determination, any Subsidiary of the Parent (other than any Subsidiary that (a) owns any Equity Interests in the Parent or any Restricted Subsidiary, or (b) holds a Lien on any assets or property of the Parent or any Restricted Subsidiary) that has been designated as an Unrestricted Subsidiary by the Borrower Representative (in a written notice by the Borrower Representative to the Administrative Agent); provided, that, (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower Representative shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving Pro Forma Effect to such designation, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter end for which the Borrowers were required to deliver financial statements pursuant to Section 7.01(a) or Section 7.01(b), (iii) such Subsidiary shall have been or will promptly be (and shall remain so long as such Subsidiary of the Parent remains an Unrestricted Subsidiary hereunder) designated an “unrestricted subsidiary” (or otherwise not be subject to the covenants) under any other Indebtedness with an outstanding principal amount in excess of the Threshold Amount, and (iv) the aggregate assets of all Unrestricted Subsidiaries may not exceed at any time 10% of the total assets of the Parent and its Subsidiaries on a consolidated basis determined in accordance with GAAP (as reflected in the financial statements of the Parent and its Subsidiaries most recently delivered hereunder pursuant to Section 7.01(a) or Section 7.01(b)). The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Closing Date shall constitute an Investment by the Parent and its Restricted Subsidiaries therein at the date of designation in an amount equal to the fair market value (as determined in good faith by the Borrower Representative) of the Investments held by the Parent and its Restricted Subsidiaries in such Unrestricted Subsidiary immediately prior to such designation.  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence by such Restricted Subsidiary at the time of designation of any Indebtedness or Liens of such Restricted Subsidiary outstanding at such time.  Once an Unrestricted Subsidiary has been designated as a Restricted Subsidiary, it cannot be re-designated as an Unrestricted Subsidiary.  As of the First Amendment Effective Date, there are no Unrestricted Subsidiaries.  For the avoidance of doubt, no Borrower may be an Unrestricted Subsidiary.

 

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

 

“U.S. Special Resolutions Regimes” has the meaning specified in Section 11.24.

 

“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).

 

“Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a contingency.

 

“Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the time owned by the Parent directly or indirectly through other Persons 100% of whose Equity Interests are at the time owned, directly or indirectly, by the Parent.

 

“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.

 

1.02       Other Interpretive Provisions.

 

With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a)         The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including the Loan Documents and any Organization Document) shall be construed as referring to such agreement, instrument or other document as amended, modified, extended, restated, replaced or supplemented from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto”, “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory rules, regulations, orders and provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified, extended, restated, replaced or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal property and tangible and intangible assets and properties, including cash, securities, accounts and contract rights.  Any and all references to “Borrower” regardless of whether preceded by the term a, any, each of, all, and/or, or any other similar term shall be deemed to refer, as the context requires, to each and every (and/or any one or all) parties constituting a Borrower, individually and/or in the aggregate.

 

(b)         In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

 

(c)          Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

(d)         Any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale, disposition, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale, disposition or similar term, as applicable, to, of or with a separate Person.  Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person).

 

1.03       Accounting Terms; Limited Condition Acquisitions.

 

(a)          Generally.  Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis (except for changes in the application of which such accountants concur), as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein; provided, however, that calculations of Attributable Indebtedness under any Synthetic Lease or the implied interest component of any Synthetic Lease shall be made by the Borrower Representative in accordance with accepted financial practice and consistent with the terms of such Synthetic Lease.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

 

(b)         Changes in GAAP.  The Borrower Representative will provide a written summary of material changes in GAAP affecting the financial statements of the Parent or any of its Subsidiaries and in the consistent application thereof with each annual and quarterly Compliance Certificate delivered in accordance with Section 7.02(b).  If at any time any change in GAAP (including the adoption of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower Representative or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.  Without limiting the foregoing, leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

 

(c)          Pro Forma Calculations.  Notwithstanding anything to the contrary contained herein, all calculations of the Consolidated Leverage Ratio, the Consolidated Net Leverage Ratio (including for purposes of determining the Applicable Rate), the Consolidated Senior Secured Leverage Ratio and the Consolidated Interest Coverage Ratio shall be made on a Pro Forma Basis with respect to all Specified Transactions occurring during the applicable four quarter period to which such calculation relates, and/or subsequent to the end of such four quarter period but not later than the date of such calculation; provided, that, notwithstanding the foregoing, when calculating the Consolidated Net Leverage Ratio and/or the Consolidated Interest Coverage Ratio for purposes of determining (y) compliance with Section 8.11 and/or (z) the Applicable Rate, any Specified Transaction and any related adjustment contemplated in the definition of Pro Forma Basis that occurred subsequent to the end of the applicable four quarter period shall not be given Pro Forma Effect.  For purposes of determining compliance with any provision of this Agreement which requires Pro Forma Compliance with any financial covenant set forth in Section 8.11 (or satisfaction of a required ratio by reference to any financial covenant set forth in Section 8.11), (x) in the case of any such compliance (or satisfaction) determined after delivery of financial statements for the fiscal quarter ending September 30, 2019, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter most recently then ended for which financial statements have been delivered (or were required to have been delivered) in accordance with Section 7.01(a) or (b), or (y) in the case of any such compliance (or satisfaction) determined prior to the delivery referred to in clause (x) above, such Pro Forma Compliance (or satisfaction) shall be determined by reference to the maximum Consolidated Net Leverage Ratio and/or minimum Consolidated Interest Coverage Ratio, as applicable, permitted for the fiscal quarter ending September 30, 2019.  Notwithstanding anything to the contrary herein, for purposes of calculating the Consolidated Leverage Ratio, the Consolidated Net Leverage Ratio, the Consolidated Senior Secured Leverage Ratio and the Consolidated Interest Coverage Ratio at any time prior to the first delivery of financial statements pursuant to Section 7.01(a) or (b), such calculation shall be determined based on the pro forma consolidated financial statements of the Parent and its Subsidiaries delivered to the Administrative Agent prior to the First Amendment Effective Date (and posted on SyndTrak for the Lenders) and thereafter, based on the most recent financial statements delivered pursuant to Section 7.01(a) or (b).  In connection with any calculation of the Consolidated Net Leverage Ratio for purposes of determining the permissibility of the incurrence of any Indebtedness, (i) the proceeds of such Indebtedness shall not be counted as unrestricted cash and Cash Equivalents, and (ii) any Indebtedness being repaid with the proceeds of such Indebtedness substantially concurrently with the incurrence thereof shall not be considered outstanding.

 

(d)          Consolidation.  All references herein to consolidated financial statements of the Parent and its Subsidiaries or to the determination of any amount or financial ratio (including any component definition thereof) for the Parent and its Restricted Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Parent is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a Restricted Subsidiary as defined herein.

 

(e)           Limited Condition Acquisitions.  It is understood and agreed that, notwithstanding anything to the contrary in this Agreement, in the case of any Limited Condition Acquisition:

 

(i)          the condition set forth in clause (f) in the proviso of the definition of “Permitted Acquisition” shall be limited such that the only representations and warranties the accuracy of which shall be a condition to the satisfaction of such clause (f) in the proviso of the definition of “Permitted Acquisition” shall be (A) customary “specified representations”, and (B) such representations and warranties under the definitive agreement governing such Limited Condition Acquisition as entitle the applicable Loan Party to terminate its obligations under such definitive agreement or decline to consummate such Limited Condition Acquisition if such representations and warranties fail to be true and correct;

 

(ii)         if the proceeds of any Incremental Term Facility are being used to finance such Limited Condition Acquisition, and the applicable Domestic Borrower has obtained Incremental Facility Commitments for such Incremental Term Facility, the conditions set forth in Section 2.01(c)(vii)(A)(2)(x) and Section 5.02(a) shall, if and to the extent the Lenders providing such Incremental Facility Commitments for such Incremental Term Facility so agree, be limited such that the only representations and warranties the accuracy of which shall be a condition to the availability of such Incremental Facility shall be (A) customary “specified representations”, and (B) such representations and warranties under the definitive agreement governing such Limited Condition Acquisition as entitle the applicable Loan Party to terminate its obligations under such definitive agreement or decline to consummate such Limited Condition Acquisition if such representations and warranties fail to be true and correct;

 

(iii)       the condition set forth in clause (a) in the proviso of the definition of “Permitted Acquisition” shall be satisfied if (A) no Default shall have occurred and be continuing at the time of the execution of the definitive agreement governing such Limited Condition Acquisition, and (B) no Specified Event of Default shall have occurred and be continuing at the time of consummation of such Limited Condition Acquisition;

 

(iv)        if the proceeds of any Incremental Term Facility are being used to finance such Limited Condition Acquisition, and the applicable Domestic Borrower has obtained Incremental Facility Commitments for such Incremental Term Facility, the conditions set forth in Section 2.01(c)(ii), Section 2.01(c)(vii)(A)(2)(y) and Section 5.02(b) shall, if and to the extent the Lenders providing such Incremental Facility Commitments for such Incremental Term Facility so agree, be satisfied if (A) no Default shall have occurred and be continuing at the time of the execution of the definitive agreement governing such Limited Condition Acquisition, and (B) no Specified Event of Default shall have occurred and be continuing at the time of the funding of such Incremental Term Facility in connection with the consummation of such Limited Condition Acquisition; and

 

(v)        for purposes of determining whether the condition set forth in clause (e) in the proviso of the definition of “Permitted Acquisition” has been satisfied in connection with such Limited Condition Acquisition, and, if the proceeds of any Incremental Term Facility are being used to finance such Limited Condition Acquisition and the applicable Domestic Borrower has obtained Incremental Facility Commitments for such Incremental Term Facility, for purposes of calculating the applicable amounts in Section 2.01(c)(i)(A)(2) and Section 2.01(c)(i)(B) and determining whether the condition set forth in Section 2.01(c)(vii)(B) has been satisfied in connection with such Limited Condition Acquisition, at the option of the Borrower Representative (the Borrower Representative’s election to exercise such option in connection with any Limited Condition Acquisition, a “LCA Election”) the date of determination of such applicable amounts and whether any such condition has been satisfied shall be deemed to be the date the definitive agreement governing such Limited Condition Acquisition is executed (the “LCA Test Date”), and if, for the Limited Condition Acquisition and the funding of such Incremental Term Facility in connection with the consummation of such Limited Condition Acquisition, the Loan Parties would have satisfied such conditions on the relevant LCA Test Date, such conditions shall be deemed to have been satisfied.

 

If the Borrower Representative has made a LCA Election for any Limited Condition Acquisition, then in connection with any calculation of any ratio, test or basket availability hereunder (each, a “Subsequent Transaction”) following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated and the date that the definitive agreement governing such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, for purposes of determining whether such Subsequent Transaction is permitted under this Agreement, any such ratio, test or basket shall be calculated and tested both (x) on a Pro Forma Basis assuming such Limited Condition Acquisition and the other transactions in connection therewith (including any assumption or incurrence of Indebtedness) have been consummated on the relevant LCA Test Date until such time as the applicable Limited Condition Acquisition has actually closed or the definitive agreement governing such Limited Condition Acquisition has been terminated or expires without consummation of such Limited Condition Acquisition, and (y) on a standalone basis without giving effect to such Limited Condition Acquisition and the other transactions in connection therewith.  It is understood and agreed that this Section 1.03(e) shall not limit the conditions set forth in Section 5.02 with respect to any proposed Credit Extension, in connection with such Limited Condition Acquisition or otherwise, other than the incurrence of an Incremental Term Facility in connection with a Limited Condition Acquisition.

 

1.04       Rounding.

 

Any financial ratios required to be maintained by the Borrowers pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

1.05       Exchange Rates; Currency Equivalents.

 

(a)         The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Alternative Currencies.  Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur.  Except for purposes of financial statements delivered by the Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the L/C Issuer, as applicable.

 

(b)          Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the L/C Issuer, as the case may be.

 

1.06       Additional Alternative Currencies.

 

(a)          The Borrower Representative may from time to time request that Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of “Alternative Currency;” provided that (i) such requested currency is an Eligible Currency and (ii) such requested currency shall only be treated as a “LIBOR Quoted Currency” to the extent that there is published LIBOR rate for such currency.  In the case of any such request with respect to the making of Eurocurrency Rate Loans, such request shall be subject to the approval of the Administrative Agent and each Lender with a Commitment under which such currency is requested to be made available; and in the case of any such request with respect to the issuance of Letters of Credit, such request shall be subject to the approval of the Administrative Agent and the L/C Issuer.

 

(b)       Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 20 Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of Credit, the L/C Issuer, in its or their sole discretion).  In the case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Lender with a Commitment under which such currency is requested to be made available thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent shall promptly notify the L/C Issuer thereof.  Each Lender with a Commitment under which such currency is requested to be made available (in the case of any such request pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining to Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., 10 Business Days after receipt of such request whether it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested currency.

 

(c)          Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued in such requested currency.  If the Administrative Agent and all the Lenders with a Commitment under which such currency is requested to be made available consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent shall so notify the Borrower Representative and (i) the Administrative Agent and such Lenders may amend the definition of Eurocurrency Rate for any Non-LIBOR Quoted Currency to the extent necessary to add the applicable Eurocurrency Rate for such currency and (ii) to the extent the definition of Eurocurrency Rate reflects the appropriate interest rate for such currency or has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency for purposes of any Borrowings of Eurocurrency Rate Loans.   If the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify the Borrower Representative and (A) the Administrative Agent and the L/C Issuer may amend the definition of Eurocurrency Rate for any Non-LIBOR Quoted Currency to the extent necessary to add the applicable Eurocurrency Rate for such currency and (B) to the extent the definition of Eurocurrency Rate reflects the appropriate interest rate for such currency or has been amended to reflect the appropriate rate for such currency, such currency shall thereupon be deemed for all purposes to be an Alternative Currency for purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.06, the Administrative Agent shall promptly so notify the Borrower Representative.

 

1.07       Change of Currency.

 

(a)         Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the Closing Date shall be redenominated into Euro at the time of such adoption.  If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.  Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

 

(b)         Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.

 

1.08       Times of Day; Rates.

 

(a)          Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

(b)          Rates.  The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “Eurocurrency Rate” or with respect to any rate that is an alternative or replacement for or successor to any of such rate (including any LIBOR Successor Rate) or the effect of any of the foregoing, or of any LIBOR Successor Rate Conforming Changes.

 

1.09       Letter of Credit Amounts.

 

Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

 

2.01       Loans.

 

(a)          The Term Loans.  Subject to the terms and conditions set forth herein, each Term Lender severally agrees to make a single loan (each, a “Term Loan”) to the Domestic Borrowers, in Dollars, on the First Amendment Effective Date in an amount not to exceed such Term Lender’s Term Commitment.  The Borrowing of the Term Loans shall consist of loans made simultaneously by the Term Lenders in accordance with their respective Applicable Percentages with respect to the Aggregate Term Commitments.  Amounts repaid or prepaid on the Term Loans may not be reborrowed.  The Term Loans may consist of Base Rate Loans or Eurocurrency Rate Loans, or a combination thereof, as further provided herein; provided, however, all Borrowings made on the First Amendment Effective Date shall be made as Base Rate Loans unless the Borrowers deliver a funding indemnity letter, in form and substance satisfactory to the Administrative Agent, to the Administrative Agent not less than three (3) Business Days prior to the date of such Borrowings.

 

(b)         Revolving Loans.  Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrowers, in Dollars or in one or more Alternative Currencies, from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided, however, that after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Commitment, and (iii) the aggregate Outstanding Amount of all Loans denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit.  Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow Revolving Loans under this Section 2.01(b), prepay Revolving Loans under Section 2.05, and reborrow under this Section 2.01(b).  Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, or a combination thereof, as further provided herein; provided, however, all Borrowings made on the Closing Date or any of the three (3) Business Days following the Closing Date shall be made as Base Rate Loans unless the Borrowers deliver a funding indemnity letter, in form and substance satisfactory to the Administrative Agent, to the Administrative Agent not less than three (3) Business Days prior to the date of such Borrowings.

 

(c)         Incremental Facilities.  The Borrower Representative may from time to time, upon at least ten (10) Business Days’ prior written notice to the Administrative Agent in each case, at any time prior to the Maturity Date, increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”) and/or add one or more tranches of term loans (each an “Incremental Term Facility”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower Representative by an agreement in writing entered into by the applicable Borrowers, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:

 

(i)         the sum of the cumulative aggregate original principal amount of all Incremental Facilities established under this Section 2.01(c) plus the cumulative aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under Section 8.03(r) shall not exceed, at the time any such Incremental Facility is established (and giving effect thereto), as the case may be, the sum of: (A) the greater of (1) $225,000,000 and (2) Consolidated EBITDA for the most recently ended period of four fiscal quarters for which the Borrowers have delivered financial statements pursuant to Section 7.01(a) or (b), plus (B) such additional amount that would not cause the Consolidated Senior Secured Leverage Ratio, calculated on a Pro Forma Basis after giving effect to any such Incremental Facility (and treating any Incremental Revolving Increase as fully drawn for such purpose), to be greater than 2.50 to 1.00 (which amount under this clause (B) shall be deemed incurred, and the Consolidated Senior Secured Leverage Ratio calculated as aforesaid, prior to giving effect to any substantially concurrent incurrence of Incremental Facilities under the preceding clause (A));

 

(ii)         no Default shall have occurred and be continuing, and no Default would exist after giving effect to any Incremental Facility, both on the date on which such Incremental Facility is requested and on the date on which such Incremental Facility is to become effective;

 

(iii)        each Incremental Facility shall be in a minimum amount of $20,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may agree);

 

(iv)        no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;

 

(v)       each Person providing any Incremental Facility Commitment shall be an institution selected by the Borrower Representative that qualifies as an Eligible Assignee and is reasonably acceptable to the Administrative Agent and, in the case of any such institution providing an Incremental Revolving Increase, the L/C Issuer and the Swing Line Lender;

 

(vi)       each Incremental Facility shall be effective only upon receipt by the Administrative Agent of (A) additional commitments in respect of such requested Incremental Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (B) documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance acceptable to the Administrative Agent;

 

(vii)       the Administrative Agent shall have received:

 

(A)       a certificate of the applicable Borrowers dated as of the effective date of such Incremental Facility signed by a Responsible Officer of the Borrower Representative (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of each applicable Borrower approving such Incremental Facility, and (2) certifying that, before and after giving effect to such Incremental Facility, (x) the representations and warranties contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) on and as of the date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) as of such earlier date, and (y) no Default exists;

 

(B)       in the case of an Incremental Term Facility, a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Term Facility the Borrowers are in compliance with the financial covenants in Section 8.11 on a Pro Forma Basis;

 

(C)        such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility;

 

(D)        to the extent requested by the Administrative Agent, customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility; and

 

(E)        such other documents and certificates it may reasonably request relating to the necessary authority for such Incremental Facility and the validity of such Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;

 

(viii)       in the case of an Incremental Revolving Increase:

 

(A)        the terms and conditions (including interest rate, interest rate margins, fees (other than arrangement, structuring, underwriting and similar fees not paid generally to all Lenders under such Incremental Revolving Increase), prepayment terms and final maturity) of such Incremental Revolving Increase shall be the same as the terms applicable to the Aggregate Revolving Commitments hereunder;

 

(B)        Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving Commitments pursuant to this Section 2.01(c) and to include thereon any Person that becomes a Lender with a Revolving Commitment pursuant to this Section 2.01(c); and

 

(C)      on the effective date of such Incremental Revolving Increase, the existing Lenders with Revolving Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans to the Lenders providing such Incremental Revolving Increase, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Revolving Increase and such assignments and adjustments, each Revolving Lender (including the Lenders providing such Incremental Revolving Increase) will hold its pro rata share (based on its Applicable Revolving Percentage of the increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans; and

 

(ix)        in the case of an Incremental Term Facility;

 

(A)         the interest rate, interest rate floors, interest rate margins, fees, discount, prepayment premiums, mandatory prepayments, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Borrower Representative and the Lenders providing such Incremental Term Facility; provided that:

 

(1)          the final maturity of such Incremental Term Facility shall not be earlier than the later of (x) the Maturity Date and (y) the final maturity of any other Incremental Term Facility;

 

(2)         the weighted average life to maturity of such Incremental Term Facility shall not be less than the remaining weighted average life to maturity of the Term Loans or any other Incremental Term Facility (in each case, as determined by the Administrative Agent in accordance with customary financial practice); and

 

(3)          unless approved by the Administrative Agent, such Incremental Term Facility is on terms and conditions that are not materially more restrictive than the terms and conditions applicable to the Revolving Commitments, the Term Loans and any other Incremental Term Facility hereunder;

 

(B)         the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility;

 

(C)         Schedule 2.01 shall be deemed revised to add the commitments and commitment percentages of the Lenders providing the Incremental Term Facility; and

 

(D)       such Incremental Term Facility shall share ratably in any prepayments of the Term Loans and any other Incremental Term Facilities pursuant to this Agreement (or otherwise provide for more favorable prepayment treatment for the Term Loans and any then outstanding other Incremental Term Facilities) and shall have ratable voting rights with the Term Loans and any other Incremental Term Facilities (or otherwise provide for more favorable voting rights for the Term Loans and any then outstanding other Incremental Term Facilities).

 

The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by the Collateral Documents and any guarantees provided with respect to the Obligations.  The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent the Administrative Agent and the Borrower Representative deem necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.01(c) (including by adding provisions related to voluntary and mandatory prepayments of Incremental Term Loans as deemed appropriate by the parties to any Incremental Facility Amendment).  The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Facility Amendment.  This Section 2.01(c) shall supersede any provisions in Section 2.13 or 11.01 to the contrary.

Payment Dates	Principal Amortization Payment (% of Term Loans Advanced on the First Amendment Effective Date)
December 2019	0.625%
March 2020	0.625%
June 2020	0.625%
September 2020	0.625%
December 2020	0.625%
March 2021	0.625%
June 2021	0.625%
September 2021	0.625%
December 2021	0.625%
March 2022	0.625%
June 2022	0.625%
September 2022	0.625%
December 2022	1.250%
March 2023	1.250%
June 2023	1.250%
September 2023	1.250%
December 2023	1.250%
March 2024	1.250%
June 2024	1.250%
Maturity Date	Outstanding Principal Balance of Term Loans