ELEVENTH AMENDMENT
Exhibit 10.1
Execution Version
ELEVENTH AMENDMENT
THIS ELEVENTH AMENDMENT, dated as of May 11, 2023 (this “Amendment”), to the Credit Agreement (as defined below), by and among Orion Engineered Carbons GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of Germany (the “Borrower Representative”), each Revolving Credit Lender party hereto, and Xxxxxxx Xxxxx Bank USA, in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the “Administrative Agent”).
RECITALS
WHEREAS, pursuant to the Credit Agreement, originally dated as of July 25, 2014, as amended on August 7, 2014, September 29, 2016, May 5, 2017, May 31, 2017,
November 2, 2017, May 3, 2018, October 29, 2018, April 10, 2019, September 30, 2021 and May 31, 2022 (as further amended, restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”), among the Borrowers, the Guarantors from time to time party thereto, the several banks, other financial institutions and institutional investors from time to time party thereto (the “Lenders”) and Administrative Agent, the Lenders have agreed to make certain loans and other extensions of credit to the Borrowers;
WHEREAS, in accordance with Section 3.05(e) of the Existing Credit Agreement, the Borrower Representative (on behalf of the U.S. Borrower) and the Administrative Agent wish to amend the Existing Credit Agreement on the terms and subject to the conditions set forth herein and in the Amended Credit Agreement (as defined below); and
WHEREAS, the Revolving Credit Lenders party hereto are willing, on the terms and subject to the conditions set forth below, to consent to amend certain terms of the Existing Credit Agreement as hereinafter provided on the Eleventh Amendment Effective Date (as defined below).
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Existing Credit Agreement, as amended hereby.
SECTION 2. Amendments. Effective as of the Eleventh Amendment Effective Date (as defined below), each of the parties hereto agrees that the Existing Credit Agreement shall be amended as set forth in the document attached as Exhibit A hereto (the Existing Credit Agreement, as so amended, the “Amended Credit Agreement”) to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text).
SECTION 3. Conditions to Effectiveness of Amendment. The effectiveness of the amendments set forth in Section 2 hereof shall occur on the date of the satisfaction of the following conditions precedent (such date, the “Eleventh Amendment Effective Date”);
Orion - Eleventh Amendment
to the Credit Agreement
Exhibit 10.1
provided that the Required Lenders (excluding (i) Total Revolving Credit Outstandings for the purposes of paragraph (a) of such definition and (ii) Required Lenders under paragraph (c) of such definition) shall not have objected to this Amendment within five (5) Business Days after the Administrative Agent has posted this Amendment to all Lenders.
(a)the Borrower Representative, each Revolving Credit Lender and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent;
(b)the Administrative Agent and Collateral Agent shall have received the Collateral Documents and other documentation identified on Schedule A-1 hereto, in each case in form and substance reasonably acceptable to the Administrative Agent;
(c)each of the representations and warranties contained in Section 4 of this Amendment shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Eleventh Amendment Effective Date;
(d)at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Eleventh Amendment Effective Date, no Default or Event of Default exists;
(e)the Administrative Agent shall have received a certificate dated the Eleventh Amendment Effective Date and signed by a Responsible Officer of the Borrower Representative, confirming compliance with the conditions set forth in Sections 3(c) and 3(d) hereof;
(f)the Administrative Agent and Collateral Agent shall have received, on behalf of itself and the Lenders on the Eleventh Amendment Effective Date, a customary written opinion of local counsel as specified in Schedule A-2 hereto, in each case (i) dated the Eleventh Amendment Effective Date, (ii) addressed to the Administrative Agent and the Lenders and (iii) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Amendment and the other Loan Documents as the Administrative Agent shall reasonably request; provided that counsel to the Administrative Agent shall provide such opinions to the extent customary in any applicable jurisdiction to be mutually agreed;
(g)the Administrative Agent shall have received (i) a certificate of each Loan Party that is required to deliver the Collateral Documents and other documentation identified on Schedule A-1 hereto pursuant to paragraph (a) above, dated the Eleventh Amendment Effective Date and executed by a Responsible Officer of such Loan Party, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its board of directors, members or other governing body (to the extent applicable) authorizing the execution, delivery and performance of the Collateral Documents and other documentation to which it is a party, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the Responsible Officer or authorized signatory of such Loan Party authorized to sign the Collateral Documents and other documentation to which it is a party and (C) certify that attached thereto is a true and complete copy of the certificate
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or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by- laws or operating, management, partnership or similar agreement (to the extent applicable) and that such documents or agreements have not been amended since the date of the last amendment thereto shown on the certificate of good standing referred to below (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the state of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party), and (iii) in relation to each Loan Party incorporated or established in Italy, (A) a copy of the constitutional documents of such Loan Party, (B) a copy of a resolution of the board of directors or of the shareholder’s meeting of such Loan Party (1) approving the terms of, and the transactions contemplated by, the the Collateral Documents and other documentation to which it is a party and resolving that it execute, deliver and perform the Collateral Documents and other documentation to which it is a party, (2) authorizing a specified person or persons to execute the the Collateral Documents and other documentation to which it is a party on its behalf, (3) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the the Collateral Documents and other documentation to which it is a party; and (4) authorizing the Borrower Representative to act as its agent in connection with the the Collateral Documents and other documentation to which it is a party, (C) a specimen of the signature of each person authorized by the resolution referred to in the previous paragraph (B) in relation to the the Collateral Documents and other documentation to which it is a party, (D) an up-to-date electronic certified true and complete certificate of good standing (certificato di iscrizione e vigenza), issued by the relevant Companies Register (Registro delle Imprese) no earlier than three Business Days prior to the Amendment Effective Date confirming that no insolvency procedures have been started in relation to each relevant Loan Party incorporated or established in Italy, and (E) a certificate of an authorized signatory of such Loan Party certifying that each copy document relating to it is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the Eleventh Amendment Effective Date; and
(h)all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Administrative Agent and the Collateral Agent, for which invoices have been presented to the Parent at least three Business Days prior to the Eleventh Amendment Effective Date, on or before the Eleventh Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel).
SECTION 4. Representations and Warranties. The Borrower Representative hereby represents and warrants, on and as of the date hereof and the Eleventh Amendment Effective Date, that:
(a)The execution and delivery of this Amendment and the performance of this Amendment and the Amended Credit Agreement are within the Borrower Representative’s corporate or other organizational powers and has been duly authorized by all necessary corporate or other organizational action of the Borrower
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Representative. This Amendment has been duly executed and delivered by the Borrower Representative and, each of this Amendment and the Amended Credit Agreement is a legal, valid and binding obligation of the Borrower Representative, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and to general principles of equity and principles of good faith and fair dealing.
(b)The execution and delivery of this Amendment by the Borrower Representative and the performance by it of this Amendment and the Amended Credit Agreement (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) for filings necessary to perfect Liens created pursuant to the Loan Documents and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which could not be reasonably expected to have a Material Adverse Effect, (b) will not violate any (i) of the Borrower Representative’s Organizational Documents or (ii) any Requirements of Law applicable to the Borrower Representative which, in the case of this clause (b)(ii), could reasonably be expected to have a Material Adverse Effect and (c) will not violate or result in a default under any Contractual Obligation of the Borrower Representative which in the case of this clause (c) could reasonably be expected to result in a Material Adverse Effect.
SECTION 5. Effects on Loan Documents. Except as specifically amended herein, the Existing Credit Agreement and all other Loan Documents shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. Except as otherwise expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Secured Party or any Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. The Borrower Representative and the other parties hereto acknowledge and agree that, on and after the Eleventh Amendment Effective Date, this Amendment shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents. On and after the effectiveness of this Amendment, each reference in any Loan Document to “the Credit Agreement” shall mean and be a reference to the Amended Credit Agreement and each reference in the Existing Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Amended Credit Agreement.
SECTION 6. Acknowledgment; Other Agreements. Subject to any limitations on its obligations expressly stated in the Loan Documents to which it is a party, the Borrower Representative on behalf of itself and each other Loan Party (i) acknowledges and agrees that all of its and each other Loan Party’s obligations under the Loan Guaranty set out in Article XII of the Amended Credit Agreement and the other Collateral Documents to which the Borrower Representative and each other Loan Party are party are reaffirmed and remain in full force and effect on a continuous basis, (ii) reaffirms each Lien granted by itself and each other Loan Party to (x) the Collateral Agent for the benefit of the Secured Parties or (y) the Secured Parties in their capacities as such (or any of them) and reaffirms the Loan Guaranty made pursuant to the Amended Credit Agreement and (iii) acknowledges and agrees that the grants of security interests by and the Loan Guaranty of the Borrower Representative and each other Loan Party contained in the Amended Credit Agreement and the other Collateral Documents
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Exhibit 10.1
are, and shall remain, in full force and effect after giving effect to this Amendment. Nothing contained in this Amendment shall be construed as substitution or novation of the obligations outstanding under the Existing Credit Agreement or the other Loan Documents, which shall remain in full force and effect, except to any extent modified hereby. The Borrower Representative on behalf of itself and each other Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, the Borrower Representative and each other Guarantor is not required by the terms of the Existing Credit Agreement, the Amended Credit Agreement or any other Loan Document to consent to the amendment to the Existing Credit Agreement effected pursuant to this Amendment, (ii) nothing in the Existing Credit Agreement, the Amended Credit Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of the Borrower Representative and each other Guarantor to any future amendments to the Amended Credit Agreement and
(iii) the acknowledgements and reaffirmations set forth in this Section 6 shall become valid and binding obligations of the Borrower Representative and each other Guarantor a moment in time prior to the amendments set forth in Section 2 hereof.
SECTION 7. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY AGREES TO BE BOUND BY THE TERMS OF SECTION 10.11 OF THE AMENDED CREDIT AGREEMENT AS IF SUCH SECTION WAS SET FORTH IN FULL HEREIN.
SECTION 8. Miscellaneous.
(a)This Amendment and the Amended Credit Agreement is binding and enforceable as of the date hereof against each party hereto and thereto and its successors and permitted assigns.
(b)Section 2 of this Amendment shall be effective upon due execution by the Administrative Agent, the Revolving Credit Lenders party hereto and the Borrower Representative. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Amendment.
(c)To the extent permitted by law, any provision of this Amendment or the Amended Credit Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
(d)Each of the parties hereto hereby agrees that Sections 10.10(b), 10.10(c), 10.10(d) and 10.11 of the Amended Credit Agreement are incorporated by reference
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herein, mutatis mutandis, and shall have the same force and effect with respect to this Amendment as if originally set forth herein.
SECTION 9. Existing Eurocurrency Rate Loans. Notwithstanding anything to the contrary in this Amendment or in the Amended Credit Agreement, it is hereby acknowledged and agreed that until June 30, 2023 (the “LIBOR Fall Away Date”), the Borrower Representative may request Term Loans be advanced or continued as, or converted into, Eurocurrency Rate Loans denominated in Dollars, in a manner consistent with the provisions of the Existing Credit Agreement; provided, however, that from the Eleventh Amendment Effective Date, (x) no Term Loan denominated in Dollars may be advanced or continued as, or converted into, a Eurocurrency Rate Loan with an Interest Period greater than three (3) months and (y) the Borrower Representative shall not request any Term Loan denominated in Dollars be advanced or continued as, or converted into, a Eurocurrency Rate Loan if the Interest Period applicable to such advanced, continued or converted Term Loan would begin on or after the LIBOR Fall Away Date. The Borrower Representative and the Administrative Agent acknowledge that, notwithstanding anything to the contrary in this Amendment or in the Amended Credit Agreement, any Eurocurrency Rate Loans denominated in Dollars outstanding immediately prior to the effectiveness of this Amendment (and any Term Loan denominated in Dollars advanced or continued as, or converted into, a Eurocurrency Rate Loan after the effectiveness of this Amendment pursuant to the preceding sentence) shall continue to bear interest at a rate determined by reference to the Adjusted Eurocurrency Rate (as defined in the Existing Credit Agreement) until the end of the Interest Period applicable to such Eurocurrency Rate Loan.
[The remainder of page intentionally left blank.]
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Exhibit 10.1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
ORION ENGINEERED CARBONS GMBH as Borrower Representative | |||||
By: | ______________________________ | ||||
Name: | Dr. Xxxxxx Xxxxxxx | ||||
Title: | Managing Director (Geschäftsführerin) |
By: | ______________________________ | ||||
Name: | Xx. Xxxxxxxxx Xxxxxx | ||||
Title: | Managing Director (Geschäftsführer) |
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XXXXXXX XXXXX BANK USA as Administrative Agent |
By: | ______________________________ | ||||
Name: | Xxxx Xxx | ||||
Title: | Vice President Investment Banking Division |
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to the Credit Agreement
Exhibit 10.1
Name of Institution: | Crédit Industriel et Commercial, London Branch |
Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxx Xxxxxxx Title: Director, Acquisition Finance | ||
[For any institution requiring a second signature line]: By: __________________________________________________ Name: Xxxxxxxxx Xxxxxxx Title: Director, Acquisition Finance |
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to the Credit Agreement
Exhibit 10.1
Name of Institution: | CITIZENS BANK, N.A. |
Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxx X. Xxxxxxxx, Xx. Title: Senior Vice President |
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to the Credit Agreement
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Name of Institution: | Deutsche Bank Luxembourg S.A. |
Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxxx-Xxxxx Xxxxxxxxx Title: AVP | ||
[For any institution requiring a second signature line]: By: __________________________________________________ Name: Xxxx Xxxxxx Title: AVP |
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Name of Institution: | DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main |
Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxxxx Xxxxxxx Title: Director | ||
[For any institution requiring a second signature line]: By: __________________________________________________ Name: Xxxxx Xxxxxxx Title: Vice President |
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Orion - Eleventh Amendment
to the Credit Agreement
Exhibit 10.1
Name of Institution: | Fifth Third Bank, National Association |
Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxxxxx X. XxXxxxx Title: Vice President | ||
[For any institution requiring a second signature line]: By: __________________________________________________ Name: Title: |
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Name of Institution: | Landesbank Hessen-Thüringen Girozentrale |
Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxxxxxx Xxxxx Title: Associate Director | ||
[For any institution requiring a second signature line]: By: __________________________________________________ Name: Ba Trac Vo Title: Associate Director |
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Name of Institution: | ING Bank, a branch of ING-DiBa AG |
Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxxxx Xxxxxx Title: Director | ||
[For any institution requiring a second signature line]: By: __________________________________________________ Name: Xxxxxx Xxxx Title: Managing Director |
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to the Credit Agreement
Exhibit 10.1
Name of Institution: | JPMorgan Chase Bank, N.A. |
Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxxx Xxxxxxxx Title: Vice President |
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to the Credit Agreement
Exhibit 10.1
Name of Institution: Landesbank Baden-Württemberg Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxxxxxxxx Xxxxxxxxx Title: [For any institution requiring a second signature line]: By: __________________________________________________ Name: Xxxxxxx Xxxx Title: Exec. Director |
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Name of Institution: Mediobanca International (Luxembourg) S.A. Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxxxxxxxx Xxxxx Title: Chief Executive Officer [For any institution requiring a second signature line]: By: __________________________________________________ Name: Xxxxxxx Xxxxxxxx Title: Authorised Signatory |
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Exhibit 10.1
Name of Institution: UniCredit Bank AG Executing as a Revolving Credit Lender: By: __________________________________________________ Name: Xxxxxx Xxxx Title: Managing Director [For any institution requiring a second signature line]: By: __________________________________________________ Name: Xxxxxxx Xxxx Title: Director |
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Schedule A-1
Closing Date Collateral Documents
Security Document Amendments/Supplements:
Collateral Grantor | Collateral Document | Governing Law | ||||||
Orion Engineered Carbons LLC | Eighth Amendment to Quota Pledge Agreement | Brazil |
Security Document Confirmations:
Collateral Grantor | Collateral Document | Governing Law | ||||||
Orion Engineered Carbons S.r.l. | Confirmation Agreement of a Pledge Over Bank Accounts | Italy | ||||||
Orion Engineered Carbons S.r.l. | Confirmation Agreement of a Receivables Assignment Agreement By Way of Security | Italy | ||||||
Orion Engineered Carbons Holdco S.r.l. | Confirmation Agreement of Quota Pledge Agreement over Orion Engineered Carbon S.r.l. | Italy | ||||||
Orion Engineered Carbons GmbH | Confirmation Agreement of Quota Pledge Agreement over Orion Engineered Carbons Holdco S.r.l. | Italy |
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Schedule A-2
Closing Date Local Counsel Opinions
Jurisdiction | Opinion | Issuing Law Firm | ||||||
Brazil | Capacity | PG Law | ||||||
Brazil | Enforceability | Lefosse Avogados | ||||||
Italy | Capacity | Pirola Pennuto Zei & Associati | ||||||
Italy | Enforceability | Nctm Studio Legale |
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Exhibit 10.1
EXHIBIT A
[Attached]
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Exhibit 10.1
CONFORMED COPY

CREDIT AGREEMENT
Dated as of July 25, 2014
AMONG
Orion Engineered Carbons S. à x.x., as Parent,
Orion Engineered Carbons Holdings GmbH,
as Holdings,
Orion Engineered Carbons BondCo GmbH,
as Intermediate Holdings, Orion Engineered Carbons GmbH,
OEC FINANCE US LLC,
and Certain Other Subsidiaries of Parent,
as Borrowers,
Certain Subsidiaries of Parent,
as Guarantors,
Xxxxxxx Xxxxx Bank USA, as Administrative Agent, and
The Other Lenders Party Hereto

Xxxxxxx Xxxxx Bank USA
AND
UBS Securities LLC,
as Joint Global Coordinators and Joint Lead Bookrunners
Xxxxxxx Xxxxx Bank USA, UBS Securities LLC, Barclays Bank PLC,
Xxxxxx Xxxxxxx Senior Funding, Inc.,
X.X. Xxxxxx Limited, Fifth Third Bank, HSBC Bank PLC, Mediobanca S.p.A.,
AND
DZ BANK AG,
as Mandated Lead Arrangers
Barclays Bank PLC, Xxxxxx Xxxxxxx Senior Funding, Inc.,
AND
X.X. Xxxxxx Limited,
as Joint Bookrunners
NY\6497185.2
Exhibit 10.1
TABLE OF CONTENTS
PRELIMINARY STATEMENTS 1
ARTICLE I. Definitions and Accounting Terms 1
Section 1.01 Defined Terms 1
Section 1.02 Other Interpretive Provisions 59
Section 1.03 Accounting Terms 60
Section 1.04 Rounding 61
Section 1.05 References to Agreements and Laws 61
Section 1.06 Times of Day 61
Section 1.07 Timing of Payment or Performance 61
Section 1.08 Currency Equivalents Generally 61
Section 1.09 Change in Currency 62
Section 1.10 Letter of Credit Amounts 62
Section 1.11 Calculation of Baskets 62
Section 1.12 Guaranty and Security Principles 63
Section 1.13 Borrower Representative 63
Section 1.14 Italian Terms 63
Section 1.15 Luxembourg Terms 64
ARTICLE II. The Commitments and Credit Extensions 64
Section 2.01 The Loans 64
Section 2.02 Borrowings, Conversions and Continuations of Loans 65
Section 2.03 Letters of Credit 67
Section 2.04 [Reserved] 74
Section 2.05 Prepayments 74
Section 2.06 Termination or Reduction of Commitments 78
Section 2.07 Repayment of Loans 80
Section 2.08 Interest 81
Section 2.09 Fees 81
Section 2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate 82
Section 2.11 Evidence of Indebtedness 82
Section 2.12 Payments Generally; Administrative Agent’s Clawback 83
Section 2.13 Sharing of Payments 84
Section 2.14 Incremental Credit Extensions. 85
Section 2.15 Extensions of Loans and Incremental Revolving Commitments. 88
Section 2.16 Cash Collateral 91
Section 2.17 Defaulting Lenders 92
Section 2.18 Specified Refinancing Debt 93
Section 2.19 Ancillary Facilities 95
ARTICLE III. Taxes, Currency Equivalents, Increased Costs Protection and Illegality 100
Section 3.01 Taxes 100
Section 3.02 [Reserved] 102
Section 3.03 Illegality 102
Section 3.04 Inability to Determine Rates 103
Section 3.05 Increased Cost and Reduced Return; Capital Adequacy 104
Section 3.06 Funding Losses 105
Section 3.07 Matters Applicable to All Requests for Compensation 106
Section 3.08 Replacement of Lenders under Certain Circumstances 107
ARTICLE IV. Conditions Precedent to Credit Extensions 108
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Page | ||||||||
Section 4.01 | Closing Date | 108 | ||||||
Section 4.02 | Conditions to All Credit Extensions | 111 | ||||||
ARTICLE V. Representations and Warranties | 111 | |||||||
Section 5.01 | Organization; Powers | 111 | ||||||
Section 5.02 | Authorization; Enforceability | 111 | ||||||
Section 5.03 | Governmental Approvals; No Conflicts | 111 | ||||||
Section 5.04 | Financial Condition; No Material Adverse Effect | 112 | ||||||
Section 5.05 | Properties | 112 | ||||||
Section 5.06 | Litigation and Environmental Matters | 112 | ||||||
Section 5.07 | Compliance with Laws | 113 | ||||||
Section 5.08 | Investment Company Status | 113 | ||||||
Section 5.09 | Taxes | 113 | ||||||
Section 5.10 | ERISA | 113 | ||||||
Section 5.11 | Disclosure | 113 | ||||||
Section 5.12 | Solvency | 114 | ||||||
Section 5.13 | Capitalization and Subsidiaries | 114 | ||||||
Section 5.14 | Security Interest in Collateral | 114 | ||||||
Section 5.15 | Federal Reserve Regulations | 115 | ||||||
Section 5.16 | Anti-Terrorism Laws and Anti-Corruption Laws | 115 | ||||||
Section 5.17 | Central Administration; COMI | 115 | ||||||
Section 5.18 | Senior Debt | 115 | ||||||
Section 5.19 | Direzione e Coordinamento | 116 | ||||||
Section 5.20 | Italian Transparency Provisions—Summary Sheet (“Documento di Sintesi”) | 116 | ||||||
Section 5.21 | Luxembourg Specific Representations | 116 | ||||||
ARTICLE VI. Affirmative Covenants | 116 | |||||||
Section 6.01 | Financial Statements and Other Reports | 116 | ||||||
Section 6.02 | Existence | 119 | ||||||
Section 6.03 | Payment of Taxes | 120 | ||||||
Section 6.04 | Maintenance of Properties | 120 | ||||||
Section 6.05 | Insurance | 120 | ||||||
Section 6.06 | Inspections; Annual Presentation | 120 | ||||||
Section 6.07 | Maintenance of Book and Records | 121 | ||||||
Section 6.08 | Compliance with Laws | 121 | ||||||
Section 6.09 | Environmental | 121 | ||||||
Section 6.10 | Designation of Subsidiaries | 122 | ||||||
Section 6.11 | Use of Proceeds | 123 | ||||||
Section 6.12 | Additional Collateral; Further Assurances | 123 | ||||||
Section 6.13 | Guarantor Coverage Test | 125 | ||||||
Section 6.14 | Maintenance of Ratings | 125 | ||||||
Section 6.15 | Post-Closing Items | 126 | ||||||
ARTICLE VII. Negative Covenants | 126 | |||||||
Section 7.01 | Indebtedness | 126 | ||||||
Section 7.02 | Liens | 130 | ||||||
Section 7.03 | No Further Negative Pledges | 134 | ||||||
Section 7.04 | Restricted Payments; Certain Payments of Indebtedness | 135 | ||||||
Section 7.05 | Restrictions on Subsidiary Distributions | 139 | ||||||
Section 7.06 | Investments | 140 | ||||||
Section 7.07 | Fundamental Changes; Disposition of Assets | 143 | ||||||
Section 7.08 | Sales and Lease-Backs | 146 | ||||||
Section 7.09 | Transactions with Affiliates | 146 | ||||||
Section 7.10 | Conduct of Business | 148 |
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Section 7.11 | Amendments or Waivers of Organizational Documents | Page 148 | ||||||
Section 7.12 | Amendments of or Waivers with Respect to Restricted Debt | 148 | ||||||
Section 7.13 | Fiscal Year | 148 | ||||||
Section 7.14 | Change of COMI | 148 | ||||||
Section 7.15 | Permitted Activities | 148 | ||||||
Section 7.16 | Financial Covenant | 149 | ||||||
Section 7.17 | Segregation of Assets or Revenues | 150 | ||||||
Section 7.18 | U.S. Tax Classification of the U.S. Borrower | 150 | ||||||
ARTICLE VIII. Events of Default and Remedies | 150 | |||||||
Section 8.01 | Events of Default | 150 | ||||||
Section 8.02 | Remedies Upon Event of Default | 152 | ||||||
Section 8.03 | Right to Cure | 153 | ||||||
Section 8.04 | Application of Funds | 153 | ||||||
ARTICLE IX. Administrative Agent | 155 | |||||||
Section 9.01 | Appointment and Authorization of Administrative Agent | 155 | ||||||
Section 9.02 | Withholding Tax | 159 | ||||||
ARTICLE X. Miscellaneous | 160 | |||||||
Section 10.01 | Notices | 160 | ||||||
Section 10.02 | Waivers; Amendments | 161 | ||||||
Section 10.03 | Expenses; Indemnity; Damage Waiver | 166 | ||||||
Section 10.04 | Waiver of Claim | 167 | ||||||
Section 10.05 | Successors and Assigns | 167 | ||||||
Section 10.06 | Survival | 174 | ||||||
Section 10.07 | Counterparts; Integration; Effectiveness | 175 | ||||||
Section 10.08 | Severability | 175 | ||||||
Section 10.09 | Right of Setoff | 175 | ||||||
Section 10.10 | Governing Law; Jurisdiction; Consent to Service of Process | 175 | ||||||
Section 10.11 | Waiver of Jury Trial | 177 | ||||||
Section 10.12 | Headings | 177 | ||||||
Section 10.13 | Confidentiality | 177 | ||||||
Section 10.14 | No Fiduciary Duty | 178 | ||||||
Section 10.15 | Several Obligations; Violation of Law | 178 | ||||||
Section 10.16 | USA PATRIOT Act | 178 | ||||||
Section 10.17 | Disclosure | 178 | ||||||
Section 10.18 | Appointment for Perfection | 178 | ||||||
Section 10.19 | Interest Rate Limitation | 178 | ||||||
Section 10.20 | Intercreditor Agreement; Appointment of Agents | 179 | ||||||
Section 10.21 | Conflicts | 179 | ||||||
Section 10.22 | Certain Undertakings with Respect to any Securitization Subsidiary | 179 | ||||||
ARTICLE XI. | 180 | |||||||
ARTICLE XII LOAN GUARANTY | 180 | |||||||
Section 12.01 | Guaranty | 180 | ||||||
Section 12.02 | Guaranty of Payment | 181 | ||||||
Section 12.03 | No Discharge or Diminishment of Loan Guaranty | 181 | ||||||
Section 12.04 | Defenses Waived | 181 | ||||||
Section 12.05 | Authorization | 182 | ||||||
Section 12.06 | Rights of Subrogation | 183 | ||||||
Section 12.07 | Reinstatement; Stay of Acceleration | 183 |
NY\6497185.2
Exhibit 10.1
Page | ||||||||
Section 12.08 | Information | 183 | ||||||
Section 12.09 | Maximum Liability | 183 | ||||||
Section 12.10 | Limitation of Liability for German Guarantors | 183 | ||||||
Section 12.11 | Contribution | 186 | ||||||
Section 12.12 | Limitation on Loan Guaranty by French Guarantor | 186 | ||||||
Section 12.13 | Limitation on Guarantee by Korean Guarantors | 187 | ||||||
Section 12.14 | Limitation of Liability for Swedish Guarantors | 187 | ||||||
Section 12.15 | Disposition and Release of Assets Subject to Swedish Collateral | 187 | ||||||
Section 12.16 | Limitation on Guaranty by Luxembourg Guarantor | 187 | ||||||
Section 12.17 | Limitation of Liability for Polish Guarantor | 188 | ||||||
Section 12.18 | Limitation of Liability for Italian Guarantors | 188 | ||||||
Section 12.19 | Liability Cumulative | 190 | ||||||
Section 12.20 | Keepwell | 190 |
NY\6497185.2
Exhibit 10.1
SCHEDULES
1.01(a) Collateral Documents and Provisions
1.01(b) Guaranty and Security Principles
1.01(c) Closing Date Mortgaged Properties
1.01(d) Original Guarantors
1.01(e) Material Subsidiaries
1.01(f) Excluded Subsidiaries
2.01 Commitments and Pro Rata Shares
4.02(b) Jurisdictions of Local Counsel Opinions
5.05 Material Real Estate Assets
5.13 Subsidiaries and Other Equity Investments
6.15 Post-Closing Items
7.01Existing Indebtedness
7.02Existing Liens
7.03Existing Restrictions
7.06 Existing Investments
7.08Sale and Lease-Back Transactions
7.09Transactions with Affiliates
9.01Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Term Note
C Revolving Credit Note
D Compliance Certificate
E Assignment and Assumption
F Affiliate Lender Assignment and Assumption
G Administrative Questionnaire
H Solvency Certificate
I Intercreditor Agreement
J Joinder Agreement
NY\6497185.2
Exhibit 10.1

PRELIMINARY STATEMENTS
The Borrowers have requested that, upon the satisfaction in full of the conditions precedent set forth in Article IV below, the applicable Lenders (a) make term loans in Dollars to the Borrowers in an aggregate principal amount equal to the Euro Amount of €266,000,000 (which shall be fixed at the Dollar Amount of $358,062,600), (b) make term loans in Euros to the Borrowers in an aggregate principal amount of €399,000,000 and (c) make available to the Borrowers a €115,000,000 multicurrency revolving credit facility for the making, from time to time, of revolving loans and the issuance, from time to time, of letters of credit, in each case, on the terms and subject to the conditions set forth in this 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
Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Additional Commitments” means any commitments added pursuant to Sections 2.14, 2.15 or 10.02(d). “Additional Credit Facilities” means any credit facilities added pursuant to Sections 2.14, 2.15 or 10.02(d). “Additional Lender” has the meaning assigned to such term in Section 2.14(b).
“Additional Revolving Facility” means any revolving credit facilities added pursuant to Section 2.14, 2.15 or 10.02(d)(ii).
“Additional Securitization Undertakings” means an unsecured guarantee or recourse constituting Indebtedness and granted by any Borrower or any Subsidiary in respect of Recourse Permitted Securitizations.
“Additional Term Loans” means any term loans added pursuant to Section 2.14, 2.15 or 10.02(d)(i). “Adjusted Eurocurrency Rate” means, with respect to any Eurocurrency Rate Borrowing for any Interest
Period, an interest rate per annum equal to (a) with respect to any Eurocurrency Rate Borrowing denominated in
Dollars, the greater of (i) the Eurocurrency Rate based on clause (a) of the definition of “Eurocurrency Rate” with respect to Dollars for such Interest Period, multiplied by the Statutory Reserve Rate and (ii) solely with respect to Initial Term Loans, 0.00% per annum, (b) with respect to any Eurocurrency Rate Borrowing denominated in Euros, the greater of (i) the Eurocurrency Rate based on clause (b) of the definition of “Eurocurrency Rate” with respect to Euros for such Interest Period and (ii) solely with respect to Initial Term Loans, 0.00% per annum, and (cb) with
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NY\6497185.2
Exhibit 10.1
respect to any Eurocurrency Rate Borrowing denominated in any Alternative Currency, the Eurocurrency Rate based on clause (c) of the definition of “Eurocurrency Rate” with respect to such other Alternative Currency for such Interest Period. The Adjusted Eurocurrency Rate for any Eurocurrency Rate Borrowing that includes the Statutory Reserve Rate as a component of the calculation will be adjusted automatically with respect to all such Eurocurrency Rate Borrowings then outstanding as of the effective date of any change in the Statutory Reserve Rate.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that, solely with respect to the Initial Term Loans, the Adjusted Term SOFR for any Interest Period shall not be less than 0.50% per annum; provided, further, that solely with respect to all other Loans, the Adjusted Term SOFR for any Interest Period shall not be less than 0.00% per annum .
“Adjusted Group” means Parent and its Subsidiaries, but excluding each Subsidiary organized under the laws of South Africa, Brazil or China.
“Administrative Agent” has the meaning assigned to such term in the preamble to this Agreement. “Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit
G or any other form approved by the Administrative Agent.
“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf Parent or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Parent or any of its Subsidiaries, threatened in writing against or affecting Parent or any of its Subsidiaries or any property of Parent or any of its Subsidiaries.
“Affiliate” means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that Person. No Person shall be an “Affiliate” solely because it is an unrelated portfolio company of the Sponsor or an unrelated holder of publicly available shares in Parent and none of the Administrative Agent, any Lender (other than an Affiliated Lender or a Debt Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of any Parent Company, any Borrower or any Subsidiary thereof.
“Affiliated Lender” means any Non-Debt Fund Affiliate, each Parent Company, each Borrower and/or any subsidiary of Parent, which, for the avoidance of doubt, excludes any Debt Fund Affiliate.
“Affiliated Lender Cap” has the meaning assigned to such term in Section 10.05(g)(v). “Agreement” has the meaning assigned to such term in the preamble to this Agreement. “Agent-Related Persons” means each Agent, together with its Related Parties.
“Agents” means, collectively, the Administrative Agent, the Collateral Agent, the Arrangers and the Supplemental Agents (if any).
“Aggregate Commitments” means the Commitments of all the Lenders. “Agreed Currencies” means Dollars and each Alternative Currency.
“Alternative Currency” means any currency (other than Dollars and Euros) agreed to by the Administrative Agent, each applicable L/C Issuer, each Revolving Credit Lender and the Borrower Representative.
“Alternative Interest Rate Election Event” has the meaning assigned to such term in Section 3.05(e).
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NY\6497185.2
Exhibit 10.1
“Ancillary Commencement Date” means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall be a Business Day on and after the Closing Date, until and excluding the Business Day preceding the Maturity Date for the Revolving Credit Facility.
“Ancillary Commitment” means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Loans which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorized as such under Section 2.19, in each case as notified by the Ancillary Lender to the Administrative Agent pursuant to Section 2.19 to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility.
“Ancillary Document” means each document relating to or evidencing the terms of an Ancillary Facility. “Ancillary Facility” means any ancillary facility made available by an Ancillary Lender in accordance with
Section 2.19.
“Ancillary Lender” means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Section 2.19.
“Ancillary Outstandings” means, at any time, in relation to an Ancillary Lender and an Ancillary Facility then in force, the aggregate of the equivalents (as calculated by that Ancillary Lender) in Dollars or Euros in the following amounts outstanding under that Ancillary Facility:
(a)the principal amount under each overdraft facility and on demand short term loan facility;
(b)the face amount of each guarantee, bond and letter of credit under that Ancillary Facility;
and
(c)the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility,
in each case net of any credit balances on any account of any Borrower of an Ancillary Facility with the Ancillary Lender making available that Ancillary Facility to the extent that the credit balances are freely available to be set off by that Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility and in each case as determined by such Ancillary Lender, acting reasonably in accordance with its normal banking practice and in accordance with the relevant Ancillary Document.
For the purposes of this definition:
(i)in relation to any Borrowing denominated in Dollars or Euros, the amount of that Borrowing (determined as described in paragraphs (a) to (c) above) shall be used; and
(ii)in relation to any borrowing not denominated in Dollars or Euros, the equivalent (calculated as specified in the relevant Ancillary Document or, if not so specified, as the relevant Ancillary Lender may specify, in each case in accordance with its usual practice at that time for calculating that equivalent in Dollars or Euros (acting reasonably)) of the amount of that Borrowing (determined as described in paragraphs (a) to (c) above) shall be used.
“Annual ESG Compliance Certificate” means an Annual ESG Compliance Certificate substantially in the form of Exhibit K.
“Anticipated Cure Deadline” has the meaning specified in Section 8.03(a).
“Applicable Commitment Fee” means (i) prior to the Fourth Amendment Effective Date, 40% of Applicable Rate then in effect with respect to the Revolving Loans on the average daily unused portion of the
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NY\6497185.2
Exhibit 10.1

“Applicable Price” has the meaning assigned to such term in the definition of “Dutch Auction”. “Applicable Rate” means a percentage per annum equal to:
(a)with respect to the Initial Dollar Term Loans, (x) 2.25% per annum for Eurocurrency RateTerm Benchmark Loans and (y) 1.25% per annum for Base Rate Loans;
(b)with respect to the Initial Euro Term Loans, 2.50% per annum for Eurocurrency Rate Loans,
provided that if the Borrower Representative specifies in an Annual ESG Compliance Certificate that an ESG Trigger has been achieved for any Fiscal Year specified below (as determined at the end of the Fiscal Year to which the Annual ESG Compliance Certificate relates) (each an “ESG Notification”), from the date being three (3) Business Days following an ESG Notification the Applicable Rate in respect of the Initial Dollar Term Loans and the Initial Euro Term Loans shall be automatically varied as follows:
Fiscal Year ending | Initial Dollar Term Loans ESG Ratchet | Initial Euro Term Loans Ratchet | ||||||
During the Initial ESG Testing Period | (a) if both ESG Triggers are achieved at the end of such Fiscal Year, the Applicable Rate shall be 0.10% below that specified in paragraph (a) above; | (a) if both ESG Triggers are achieved at the end of such Fiscal Year, the Applicable Rate shall be 0.10% below that specified in paragraph (b) above; | ||||||
(b) if only one ESG Trigger is achieved at the end of such Fiscal Year, the Applicable Rate shall be equal to that specified in paragraph (a) above; and | (b) if only one ESG Trigger is achieved at the end of such Fiscal Year, the Applicable Rate shall be equal to that specified in paragraph (b) above; and | |||||||
(c) if neither ESG Trigger is achieved at the end of such Fiscal Year, the Applicable Rate shall be 0.10% above that specified in paragraph (a) above. | (c) if neither ESG Trigger is achieved at the end of such Fiscal Year, the Applicable Rate shall be 0.10% above that specified in paragraph (b) above. | |||||||
During the Secondary ESG Testing Period | (a) if both ESG Triggers are achieved at the end of such Fiscal Year, the Applicable Rate shall be equal to that specified in paragraph (a) above; | (a) if both ESG Triggers are achieved at the end of such Fiscal Year, the Applicable Rate shall be equal to that specified in paragraph (b) above; | ||||||
(b) if only one ESG Trigger is achieved at the end of such Fiscal Year, the Applicable Rate shall be 0.05% above that | (b) if only one ESG Trigger is achieved at the end of such Fiscal Year, the Applicable Rate shall be 0.05% above that |
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NY\6497185.2
Exhibit 10.1
specified in paragraph (a) above; and | specified in paragraph (b) above; and | |||||||
(c) if neither ESG Trigger is achieved at the end of such Fiscal Year, the Applicable Rate shall be 0.10% above that specified in paragraph (a) above. | (c) if neither ESG Trigger is achieved at the end of such Fiscal Year, the Applicable Rate shall be 0.10% above that specified in paragraph (b) above. |
provided further that if the Borrower Representative:
(i)fails to deliver an Annual ESG Compliance Certificate on the date required under Section 6.01(d)(B), the Applicable Rate in respect of the Initial Dollar Term Loans and Initial Euro Term Loans shall be the highest percentage rate per annum set out in the table above (as applicable). Once such Annual ESG Compliance Certificate has been delivered, the Applicable Rate in respect of the Initial Dollar Term Loans and Initial Euro Term Loans will be re-calculated on the basis of such Annual ESG Compliance Certificate and the terms of this definition of Applicable Rate shall apply, with any reduction in the Applicable Rate resulting from such recalculation taking effect from the date of delivery of such Annual ESG Compliance Certificate; or
(ii)notifies the Administrative Agent that an ESG Plant has been sold to a third party or ceases to be operated by a member of the Restricted Group (an “ESG Plant Sale Notification”), from the date of such ESG Plant Sale Notification the Applicable Rate in respect of (A) the Initial Dollar Term Loans shall be equal to that specified in paragraph (a) above and (B) the Initial Euro Term Loans shall be equal to that specified in paragraph (b) above, provided that the Borrower Representative must notify the Administrative Agent promptly after
(i) the sale of an ESG Plant to a third party or (ii) the time when a member of the Restricted Group ceases to operate the relevant ESG Plant.
(c)with respect to the Revolving Credit Facility,
First Lien Leverage Ratio | Eurocurrency Rate Loans | EurocurrencyTer m Benchmark Loans | Base Rate Loans | ||||||||
Greater than 3.25:1.00 | 2.70% | 2.70% | Not Available | ||||||||
Less than or equal to | 2.40% | 2.40% | Not Available | ||||||||
3.25:1.00 but greater | |||||||||||
than 2.75:1.00 | |||||||||||
Less than or equal to 2.75:1.00 but greater | 2.15% | 2.15% | Not Available | ||||||||
than 2.25:1.00 | |||||||||||
Less than or equal to | 1.90% | 1.90% | Not Available | ||||||||
2.25:1.00 but greater | |||||||||||
than 1.75:1.00 | |||||||||||
Less than or equal to | 1.65% | 1.65% | Not Available | ||||||||
1.75:1.00 |
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NY\6497185.2
Exhibit 10.1
Notwithstanding anything to the contrary contained in this Agreement, Revolving Credit Loans shall not be (or be converted into) Base Rate Loans, as contemplated by the Eighth Amendment.
“Appropriate Lender” means, at any time, (a) with respect to any Term Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Term Facility or the Revolving Credit Facility or holds a Term Loan with respect to such Term Facility or a Revolving Credit Loan with respect to such Revolving Credit Facility, respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) each L/C Issuer and
(ii) if any Letters of Credit have been issued pursuant to Section 2.03(a), the Revolving Credit Lenders, (c) with respect to any Incremental Term Facility, a Lender that has a Commitment with respect to such Incremental Term Facility or holds an Incremental Term Loan at such time, (d) with respect to any Specified Refinancing Debt, a Lender that holds Specified Refinancing Term Loans, (e) with respect to any Extended Term Loans, a Lender that holds an Extended Term Loan at such time and (f) with respect to any Extended Revolving Credit Commitments constituting a revolving credit facility, a Lender that has an Extended Revolving Credit Commitment or holds Extended Revolving Loans.
“Approved Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities and is administered, advised or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers, advises or manages such Lender.
“Arrangers” means each of (i) Xxxxxxx Xxxxx, UBS Securities LLC, Barclays Bank PLC, Xxxxxx Xxxxxxx Senior Funding, Inc., X.X. Xxxxxx Limited, Fifth Third Bank, National Association, HSBC Bank plc, Mediobanca
S.p.A. and DZ Bank AG, in their respective capacities as exclusive mandated lead arrangers under the Credit Agreement as in effect on the Closing Date, (ii) Xxxxxxx Xxxxx, in its capacity as exclusive mandated lead arranger under the Second Amendment, (iii) Xxxxxxx Xxxxx and UniCredit Bank AG in their capacities as exclusive mandated lead arrangers under the Third Amendment, (iv) UniCredit Bank AG, in its capacity as exclusive mandated lead arranger under the Fourth Amendment, (v) Xxxxxxx Xxxxx Bank USA, Citizens Bank N.A., Mediobanca International (Luxembourg) S.A. and ING Bank, a branch of ING-DiBa AG. in their capacities as exclusive mandated lead arrangers under the Fifth Amendment, (vi) Xxxxxxx Xxxxx Bank USA, ING Bank, a branch of ING-DiBa AG and Mediobanca International (Luxembourg) S.A. in their capacities as exclusive mandated lead arrangers under the Sixth Amendment, (vii) UniCredit Bank AG, in its capacity as exclusive mandated lead arranger under the Eighth Amendment, (viii) Xxxxxxx Xxxxx Bank USA, Deutsche Bank Securities Inc., ING Bank, a branch of ING-DiBa AG and UniCredit Bank AG in their capacities as exclusive mandated lead arrangers under the Ninth Amendment and (ix) UniCredit Bank AG, in its capacity as exclusive coordinator, bookrunner and mandated lead arranger under the Tenth Amendment.
“Article 55 BRRD” means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
“Assignment and Assumption” means (i) an assignment and assumption entered into by a Lender and an assignee that is not an Affiliated Lender (with the consent of any party whose consent is required by Section 10.05), and accepted by the Administrative Agent, in the form of Exhibit E or any other form approved by the Administrative Agent and the Borrower Representative and (ii) an assignment and assumption entered into by a Lender and an assignee that is an Affiliated Lender (with the consent of any party whose consent is required by Section 10.05), and accepted by the Administrative Agent, in the form of Exhibit F or any other form approved by the Administrative Agent and the Borrower Representative.
“Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Auction Agent” means (a) the Administrative Agent or any of its Affiliates or (b) any other financial institution or advisor engaged by the Borrower Representative (whether or not an Affiliate of the Administrative Agent) to act as an arranger in connection with any Auction pursuant to the definition of “Dutch Auction” approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed).
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NY\6497185.2
Exhibit 10.1
“Auction Amount” has the meaning assigned to such term in the definition of “Dutch Auction”. “Auction Notice” has the meaning assigned to such term in the definition of “Dutch Auction”. “Auction Party” has the meaning assigned to such term in the definition of “Dutch Auction”. “Auction Response Date” has the meaning assigned to such term in the definition of “Dutch Auction”. “Auditors’ Determination” has the meaning assigned to such term in Section 12.10(f)(ii).
“Available Amount” means, at any time, an amount equal to, without duplication:
(a)the sum of:
(i)$47,600,000; plus
(ii)an amount, not less than zero, determined on a cumulative basis equal to (A) the amount of Excess Cash Flow for the Fiscal Year ending December 31, 2015 and each completed Fiscal Year thereafter (but not less than zero for any such Fiscal Year) that is not required prior to the applicable date to be applied as a mandatory prepayment under Section 2.05(b)(i) (it being understood for the avoidance of doubt that, solely for purposes of this definition, (1) Excess Cash Flow for any Fiscal Year shall be deemed to be zero until the financial statements required to be delivered pursuant to Section 6.01(c) for such Fiscal Year, and the related Compliance Certificate required to be delivered pursuant to Section 6.01(d) for such Fiscal Year, have been received by the Administrative Agent and (2) for the Fiscal Years ending December 31, 2015, December 31, 2016 and December 31, 2017, the relevant amounts of Excess Cash Flow provided in Euros in the financial statements delivered pursuant to Section 6.01(c) for such Fiscal Year and the related Compliance Certificate delivered pursuant to Section 6.01(d) for such Fiscal Year shall be converted from Euros to US Dollars at a rate of 1.1906:1) less (B) the amount of any voluntary prepayments of loans that any Borrower elected to apply as a deduction to the calculation of the Excess Cash Flow payment under Section 2.05(b)(i) for such Fiscal Year (provided that the amounts in this clause (ii) shall not be available when an Event of Default under Section 8.01(a), (f) or (g) then exists or would result therefrom); plus
(iii)the amount of any capital contributions or other proceeds of issuances of Capital Stock (other than (x) amounts used to make a Restricted Payment pursuant to Section 7.04(a)(viii) or a Restricted Debt Payment pursuant to Section 7.04(b)(v)(A), or (y) any amounts constituting a Cure Amount or proceeds of issuances of Disqualified Capital Stock) received as Cash equity by Parent, plus the fair market value, as determined in good faith by the Borrower Representative, of marketable securities or other property received by Parent as a capital contribution or in return for issuances of Capital Stock (other than any amounts constituting a Cure Amount or proceeds of issuances of Disqualified Capital Stock), in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus
(iv)the aggregate principal amount of any Indebtedness or Disqualified Capital Stock, in each case, of Parent and/or any Subsidiary issued after the Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to any Parent Company, any Borrower or a Subsidiary), which has been converted into or exchanged for Capital Stock of any Parent Company, any Borrower, and/or any Subsidiary that does not constitute Disqualified Capital Stock, together with the fair market value of any Cash Equivalents and the fair market value (as reasonably determined by the Borrower Representative) of any property or assets received by Parent or such Subsidiary upon such exchange or conversion, in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus
(v)the net proceeds received by Parent or any Subsidiary during the period from and including the day immediately following the Closing Date through and including such time in connection with the Disposition to a Person (other than any Loan Party or any Subsidiary) of any Investment made pursuant to Section 7.06(r); plus
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NY\6497185.2
Exhibit 10.1
(vi)to the extent not already reflected as a return of capital with respect to any Investment for purposes of determining the amount of such Investment, the proceeds received by Parent and/or any Subsidiary during the period from and including the day immediately following the Closing Date through and including such time in connection with Cash returns, Cash profits, Cash distributions and similar Cash amounts, including Cash principal repayments of loans, in each case received in respect of any Investment made pursuant to Section 7.06(r) (in an amount not to exceed the original amount of each such Investment); plus
(vii)an amount equal to the sum of (A) the amount of any Investments by any Borrowers and/or any Subsidiary pursuant to Section 7.06(r) in any Unrestricted Subsidiary (in an amount not to exceed the original amount of each such Investment) that has been re-designated as a Subsidiary or has been merged, consolidated or amalgamated with or into, or is liquidated, wound up or dissolved into, any Borrowers or any Subsidiary and (B) the fair market value (as reasonably determined by the Borrower Representative) of the property or assets of any Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed (in an amount not to exceed the original amount of the Investment in such Unrestricted Subsidiary) to any Borrowers and/or any Subsidiary, in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus
(viii)any Declined Amounts; minus
(b)an amount equal to the sum of (i) Restricted Payments made pursuant to Section 7.04(a)(iii), plus (ii) Restricted Debt Payments made pursuant to Section 7.04(b)(vi), plus (iii) Investments made pursuant to Section 7.06(r), in each case, made after the Closing Date and prior to such time, or contemporaneously therewith.
“Available Ancillary Commitment” means in relation to an Ancillary Facility, an Ancillary Lender’s Ancillary Commitment less the Ancillary Outstandings in relation to that Ancillary Facility.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then- removed from the definition of “Interest Period” pursuant to clause (f) of Section 3.04.
“Bail-In Action” means the exercise of any Write-down and Conversion Powers. “Bail-In Legislation” means:
(a)in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time;
(b)in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write- down and Conversion Powers contained in that law or regulation; and
(c)in relation to the United Kingdom, the UK Bail-In Legislation. “Bankruptcy Code” means Title 11 of the U.S. Code (11 U.S.C. § 101 et seq.).
“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal FundsPrime Rate in effect on such day plus 1/2 of 1%, (b) the Prime LendingFederal Funds Effective Rate in effect on such day, (c) the Adjusted Eurocurrency Rate for Loans denominated in Dollars published on such day (or if such day is not a Business Day the next previous Business Day) for an Interest Period of one month plus 1% and (d)
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NY\6497185.2
Exhibit 10.1
solely with respect to Initial Dollar Term Loans, 1.00%. plus ½ of 1.00% and (c) Adjusted Term SOFR (which rate shall be calculated based on an Interest Period of one month as of such date) plus 1.00%. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.04 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 3.04), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause
(d)above.
“Base Rate Loan” means a Loan denominated in Dollars that bears interest based on the Base Rate.

“Benchmark” means, initially, the Relevant Rate; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Relevant Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.04.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event for any then-current Benchmark the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1)Daily Simple SOFR and, in the case of Initial Term Loans and Revolving Loans denominated in Dollars that are Term Benchmark Loans, the Term SOFR Adjustment, and
(2)the sum of (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower Representative as the replacement such Benchmark giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in Dollars at such time and (ii) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower Representative giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in Dollars at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides (or, for purposes of clause (2) of the definition of “Benchmark Replacement”, the Administrative Agent in consultation with the Borrower Representative) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and the other provisions contemplated by Section 3.04 in a manner substantially consistent with market practice (provided that any such change that is not substantially consistent with both (i) market practice and (ii) other syndicated credit facilities for similarly situated borrowers denominated in Dollars for which the Administrative Agent acts as administrative agent
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NY\6497185.2
Exhibit 10.1
shall be determined by the Administrative Agent in consultation with the Borrower Representative), and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of
(a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with
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NY\6497185.2
Exhibit 10.1
respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clause (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.04 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.04.
“Bona Fide Debt Fund” means any Person that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by any Person Controlling, Controlled by or under common Control with (a) any competitor of Parent and/or any of its subsidiaries or (b) any Affiliate of such competitor, but with respect to which no personnel involved with any investment in such competitor or Affiliate (i) makes, has the right to make or participates with others in making any investment decisions with respect to such Person or (ii) has access to any information (other than information that is publicly available) relating to Parent or its subsidiaries or any entity that forms a part of the business of Parent or any of its subsidiaries.
“Borrower Parties” means the collective reference to the Borrowers and the Subsidiaries, and “Borrower Party” means any one of them.
“Borrower Representative” means the entity appointed to act on behalf of the Borrowers pursuant to Section 1.13.
“Borrowers” means the collective reference to the Term Borrowers and the Revolving Borrowers, and “Borrower” means any one of them.
“Borrowing” means a Revolving Credit Borrowing or a Term Borrowing, as the context may require. “Business Day” means:
(a)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 jurisdiction where the Administrative Agent’s office with respect to Loans denominated in Dollars is located; provided that in relation to Loans denominated in U.S. Dollars and in relation to the calculation or computation of Term SOFR, the term “Business Day” shall also exclude any day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities;
(b)if such day relates to any interest rate settings as to a Eurocurrency Rate Loan or Letter of Credit denominated in:
(i)a Term Benchmark Loan or Letter of Credit denominated in Dollars, any fundings, settlements, payments and disbursements in Dollars in respect of any such Eurocurrency RateTerm Benchmark Loan or Letter of Credit, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency RateTerm Benchmark Loan or Letter of Credit, means any such day described in clause (a) above that is also a London Banking Day;
(ii)a Eurocurrency Rate Loan or Letter of Credit denominated in:
(iix) an Alternative Currency, any fundings, settlements, payments and disbursements in such Alternative Currency, or any other dealings in such Alternative Currency to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan or Letter of Credit, means any such day described in clause (a) above which is also a day on which dealings
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NY\6497185.2
Exhibit 10.1

(iiiy) Euros, any fundings, disbursements, settlements and payments in Euros in respect of any such Eurocurrency Rate Loan or Letter of Credit, or any other dealings in Euros to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan or Letter of Credit, means any such day described in clause (a) above that is also a TARGET Day; and
(c)if such day relates to any German law governed document or the performance of any obligation under the Loan Documents by any Loan Party organized or formed in Germany, means any day other than a day on which commercial banks are authorized to close under the laws of, or are in fact closed in, Germany.
“Capital Impairment” has the meaning assigned to such term in Section 12.10(a).
“Capital Lease” means, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with IFRS, is or is required to be accounted for as a capital lease on the balance sheet of that Person, but for the avoidance of doubt, shall exclude any lease which would be considered as an operating lease under IAS 17 (Leases) or ASC (480) which is subsequently treated as a Capital Lease as a result of any change to the treatment of such leases or other under arrangements under IFRS or GAAP and “operating lease” will be construed accordingly as any lease which is not a Capital Lease.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but excluding for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Cash” means money, currency or a credit balance in any demand or Deposit Account (for the avoidance of doubt, and in respect of any financial covenant or ratio, the amount thereof shall be determined in accordance with IFRS).
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent or L/C Issuer (as applicable) and the Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances (in the case of L/C Obligations in the respective currency or currencies in which the applicable L/C Obligations are denominated) or, if the Administrative Agent or L/C Issuer benefiting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the applicable L/C Issuer (which documents are hereby consented to by the Lenders).
“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 of determination, (a) readily marketable securities (i) issued or directly and unconditionally guaranteed or insured as to interest and principal by the U.S. government or (ii) issued by any agency or instrumentalities of the U.S. the obligations of which are backed by the full faith and credit of the U.S., in each case maturing within one year after such date and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P- 2 from Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, an equivalent rating
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NY\6497185.2
Exhibit 10.1
from another nationally recognized statistical rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates of deposit, or bankers’ acceptances (or similar instruments) maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the U.S. or any state thereof or the District of Columbia that has capital and surplus of not less than €100,000,000 (each Lender and each commercial bank referred to herein as a “Cash Equivalent Bank”) or, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (e) shares of any money market mutual fund that (i) has substantially all of its assets invested in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than €250,000,000 and (iii) has a rating of at least A-2 from S&P or at least P-2 from Xxxxx’x; and (f) solely with respect to Foreign Subsidiaries, investments of the types and maturities described in clause (a) through (e) above issued, where relevant, by a Cash Equivalent Bank or any commercial bank of recognized international standing chartered in the country where such Foreign Subsidiary is domiciled having unimpaired capital and surplus of at least €500,000,000.
“Cash Management Agreement” means any agreement to provide cash management services, including (i) commercial credit cards, (ii) stored value cards, (iii) purchasing cards, (iv) treasury management, check drawing and automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items, interstate depository network services, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management), (v) dealer incentive, supplier finance or similar programs, (vi) current account facilities and (vii) arrangements or services similar to any of the foregoing; it being understood that Cash Management Agreements shall not include any agreements documenting any Ancillary Facilities.
“Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Agent or an Affiliate of a Lender or an Agent, in its capacity as a party to such Cash Management Agreement.
“Cash Management Obligations” means, with respect to any Person, the obligations of such Person under any Cash Management Agreement.
“Change in Accounting Election Date” has the meaning given to such term in Section 1.03(d).
“Change in Law” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 3.05(b), by any Lending Office of such Lender or by such Xxxxxx’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement (other than any such request, guideline or directive to comply with any law, rule or regulation that was in effect on the date of this Agreement). For purposes of this definition and Section 3.05 (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the U.S. or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses (x) and (y) above, be deemed to be a Change in Law, regardless of the date enacted, adopted, issued or implemented. Notwithstanding anything in this Agreement to the contrary, increased costs as a result of any Change in Law pursuant to this definition of “Change in Law” shall only be reimbursable by any Borrower to the extent the applicable Lender is generally requiring reimbursement therefor from similarly situated borrowers under comparable syndicated credit facilities.
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NY\6497185.2
Exhibit 10.1
“Change of Control” means the earliest to occur of:
(a)the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act, but excluding any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor), other than one or more Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, amalgamation, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of Capital Stock representing more than 35.0% of the total voting power of all of the outstanding voting stock of the Parent;
(b)Holdings ceases to be a direct or (solely through a Qualified Intermediate Holding Company) indirect Wholly-Owned Subsidiary of the Parent; or
(c)either the German Borrower or the U.S. Borrower ceases to be a direct or indirect Wholly-Owned Subsidiary of Holdings.
“Charges” has the meaning assigned to such term in Section 10.19.
“Clean-Up Default” means any Default or Event of Default which occurs solely as a result of the implementation of the change from IFRS to GAAP.
“Clean-Up Period” has the meaning given to such term in Section 8.05.
“Clean-Up Period Commencement Date” has the meaning given to such term in Section 8.05. “Closing Date” means the date on which (i) each of the conditions to funding set forth in Article 4 have
been satisfied (or waived by the Lead Arrangers) and (ii) the borrowing of the Initial Term Loans occurs. “Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Collateral” means any and all property of a Loan Party subject to a Lien under the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that is or becomes subject to a Lien pursuant to the Collateral Documents to secure the Secured Obligations.
“Collateral Agent” means Wilmington Trust, National Association, acting through such of its Affiliates or branches as it may designate, in its capacity as “Security Agent” under the Intercreditor Agreement and as security or collateral agent under any of the other Loan Documents, or any successor collateral or security agent permitted by the terms of the Intercreditor Agreement.
“Collateral Documents” means, collectively, the Pledge and Security Agreement, the Mortgages, the German Closing Security Documents, the Luxembourg Security Documents and those certain foreign security and pledge agreements listed on Schedule 1.01(a) (as such schedule may be amended or supplemented from time to time), each of the mortgages, collateral assignments, Security Supplements, security agreements, pledge agreements or other similar agreements delivered to the Collateral Agent pursuant to Sections 6.12 or 6.15, and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of (i) the Collateral Agent for the benefit of the Secured Parties and/or (ii) the Secured Parties in their capacities as such (or any of them) to the extent required by applicable Law.
“Commitment” means a Term Commitment and/or a Revolving Credit Commitment, as the context may
require.
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NY\6497185.2
Exhibit 10.1

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit D. “Confidential Information” has the meaning assigned to such term in Section 10.13.
“Consolidated Adjusted EBITDA” means, as to any Person for any period, an amount determined for such Person on a consolidated basis equal to the total of (a) Consolidated Net Income of such Person for such period plus
(b) the sum, without duplication, of (in each case, to the extent deducted in calculating Consolidated Net Income, other than in respect of clauses (x), (xii) and (xiv) below) the amounts of:
(i)Consolidated Interest Expense;
(ii)Taxes paid (including pursuant to any Tax sharing arrangements) and provisions for Taxes of each Borrower and its Subsidiaries, including, in each case federal, state, provincial, local, foreign, unitary, franchise, excise, property, withholding and similar Taxes, including any penalties and interest;
(iii)total depreciation and amortization expense;
(iv)other non-Cash charges or losses, including the excess of IFRS rent expense over actual Cash rent paid during such period due to the use of a straight line rent for IFRS purposes; provided that if any such non-Cash charge, loss or expense represents an accrual or reserve for potential Cash items in any future period,
(A) the Borrower Representative may determine not to add back such non-Cash charge, loss or expense in the current period and (B) to the extent the Borrower Representative does decide to add back such non-Cash charge, loss or expense, the Cash payment in respect thereof in such future period shall be subtracted from Consolidated Adjusted EBITDA in the period in which such payment is made;
(v)(A) Transaction Costs, (B) transaction fees, costs and expenses incurred (1) in connection with the consummation of any transaction (or any transaction proposed and not consummated) permitted under this Agreement, including the issuance or offering of Capital Stock, Investments, acquisitions, Dispositions, recapitalizations, mergers, consolidations or amalgamations, option buyouts or the incurrence, repayment, refinancing, amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums and prepayment penalties) or similar transactions or (2) in connection with the IPO (whether or not consummated) and (C) the amount of any fee, cost, expense or reserve to the extent actually reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance; provided that in respect of any fee, cost, expense or reserve with respect thereto incurred pursuant to clause (C) above, such Person in good faith expects to receive reimbursement for such fee, cost, expense or reserve within the next four Fiscal Quarters (it being understood that to the extent not actually received within such Fiscal Quarters, such reimbursement amounts shall be deducted in calculating Consolidated Adjusted EBITDA for such Fiscal Quarters);
(vi)the amount of any expense or deduction associated with any Subsidiary of such Person attributable to non-controlling interests or minority interests of third parties;
(vii)the amount of any portion of management, monitoring, consulting, transaction and advisory fees and related expenses actually paid by or on behalf of, or accrued by, such Person or any of its subsidiaries (A) to the Investors (or their Affiliates or management companies) to the extent permitted under this Agreement or (B) as permitted by Section 7.09(f);
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NY\6497185.2
Exhibit 10.1
(viii)the amount of any costs, charges, accruals, reserves or expenses in connection with a single or one-time event, including in connection with (A) any Permitted Acquisition after the Closing Date, (B) the consolidation or closing of facilities, branches or distribution centers or plants during such period, (C) the closure, consolidation or transfer of production lines and (D) any discretionary bonuses for hourly employees outside of the ordinary course of business;
(ix)the amount of any earn-out and other contingent consideration obligations in connection with any Permitted Acquisition or other Investment permitted pursuant to Section 6.06 and that are paid or accrued during such applicable period and on similar acquisitions and Investments completed prior to the Closing Date;
(x)the amount of any expected cost savings, operating improvements and expense reductions, product margin synergies and other synergies (net of the amount of actual amounts realized) reasonably identifiable and factually supportable (in the good faith determination of the Borrower Representative) related to (A) the Transactions and (B) after the Closing Date, permitted asset sales, mergers or other business combinations, acquisitions, Investments, Dispositions or divestitures, operating improvements and expense reductions, restructurings, cost saving initiatives and certain other similar initiatives and specified transactions; provided that, with respect to clause (B) above, such cost savings, operating improvements and expense reductions, product margin synergies and other synergies are reasonably expected to be realized within 18 months of the event giving rise thereto or the consummation of such transaction;
(xi)(A) costs, charges, accruals, reserves or expenses attributable to the undertaking and/or implementation of cost savings initiatives or operating expense reductions, product margin synergies and other synergies and similar initiatives, integration, transition, reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, facilities opening and pre-opening, business optimization and other restructuring costs, charges, accruals, reserves and expenses (including inventory optimization programs, software development costs and costs related to the closure or consolidation of facilities, branches or distribution centers, and plants (without duplication of amounts in clause (viii) above), the closure, consolidation or transfer of production lines between facilities (without duplications of amounts in clause (viii) above) and curtailments, costs related to entry into new markets, consulting and other professional fees, signing costs and bonuses, retention or completion bonuses, executive recruiting costs, relocation expenses, severance payments, modifications to, or losses on settlement of, pension and post-retirement employee benefit plans, new systems design and implementation costs, project startup costs and other expenses relating to the realization of synergies from the Transactions) and (B) costs, charges, accruals, reserves or expenses associated with “greenfield startups” (including new customers, new products and new production lines) that are, in the case of this clause (xi)(B), reasonably identifiable and factually supportable (in the good faith determination of the Borrower Representative);
(xii)to the extent not included in Consolidated Net Income, proceeds of business interruption insurance in an amount representing the earnings for the applicable period that such proceeds are intended to replace (whether or not received so long as such Person in good faith expects to receive the same within the next four Fiscal Quarters (it being understood that to the extent not actually received within such Fiscal Quarters, such proceeds shall be deducted in calculating Consolidated Adjusted EBITDA for such Fiscal Quarters));
(xiii)unrealized net losses in the fair market value of any arrangements under Hedge Agreements and losses, charges and expenses attributable to the early extinguishment or conversion of Indebtedness, arrangements under Hedge Agreements or other derivative instruments (including deferred financing expenses written off and premiums paid);
(xiv)Cash actually received (or any netting arrangements resulting in reduced Cash expenditures) during such period, and not included in Consolidated Net Income in any period, to the extent that the non-Cash gain relating to such Cash receipt or netting arrangement was deducted in the calculation of Consolidated Adjusted EBITDA pursuant to clause (c)(i) below for any previous period and not added back; and
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NY\6497185.2
Exhibit 10.1
(xv)other add-backs and adjustments reflected in the Projections and Information
Memorandum;
(xvi)minus (c) to the extent such amounts increase Consolidated Net Income:
(i)other non-Cash items, including deductions for the excess of actual Cash rent paid over IFRS rent expense during such period due to the use of a straight line rent for IFRS purposes; provided that if any non-Cash gain or income relates to potential Cash items in any future periods, such Person may determine not to deduct such non-Cash gain or income in the current period;
(ii)unrealized net gains in the fair market value of any arrangements under Hedge
Agreements;
(iii)the amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(v)(C) above to the extent such reimbursement amounts were not received within the time period required by such clause;
(iv)the amount added back to Consolidated Adjusted EBITDA pursuant to clause (b)(xii) above to the extent such business interruption proceeds were not received within the time period required by such clause; and
(v)to the extent that such Person adds back the amount of any non-Cash charge to Consolidated Adjusted EBITDA pursuant to clause (b)(iv) above, the Cash payment in respect thereof in such future period.
Notwithstanding anything to the contrary, but subject to any adjustment set forth in the definition of “Pro Forma Basis”, it is agreed, that for the purpose of calculating the Total Net Leverage Ratio, the First Lien Leverage Ratio and the Interest Coverage Ratio for any period that includes the Fiscal Quarter ended June 30, 2013, the Fiscal Quarter ended September 30, 2013, the Fiscal Quarter ended December 31, 2013 or the Fiscal Quarter ended March 31, 2014, (i) Consolidated Adjusted EBITDA for the Fiscal Quarter ended June 30, 2013, shall be deemed to be
€51,700,000, (ii) Consolidated Adjusted EBITDA for the Fiscal Quarter ended September 30, 2013, shall be deemed to be €50,600,000, (iii) Consolidated Adjusted EBITDA for the Fiscal Quarter ended December 31, 2013, shall be deemed to be €43,600,000 and (iv) Consolidated Adjusted EBITDA for the Fiscal Quarter ended March 31, 2014, shall be deemed to be €50,000,000.
“Consolidated First Lien Debt” means, as at any date of determination, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured by a “first priority” Lien on any property of Parent or its Subsidiaries.
“Consolidated Interest Expense” means, for any period, the sum, without duplication, of (1) consolidated interest expense of the Borrowers and their Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Swap Obligations or other derivative instruments pursuant to IFRS), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any made (less net payments, if any, received), pursuant to interest rate Swap Obligations with respect to Indebtedness, and excluding (q) [reserved], (r) costs associated with obtaining Swap Obligations, (s) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any acquisition, (t) penalties and interest relating to taxes, (u) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (v) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees and expenses and discounted liabilities,
(w) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any acquisitions after the Closing Date, (x) commissions, discounts, yield and other fees and charges (including any
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NY\6497185.2
Exhibit 10.1
interest expense) related to any Permitted Securitization and (y) any accretion of accrued interest on discounted liabilities and any prepayment premium or penalty); plus
(2)consolidated capitalized interest of the Borrowers and their Subsidiaries for such period, whether paid or accrued; less
(3)interest income of the Borrowers and their Subsidiaries for such period.
For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by each Borrower to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with IFRS.
“Consolidated Net Income” means, as to any Person (the “Subject Person”) for any period, the net income (or loss) of the Subject Person on a consolidated basis for such period taken as a single accounting period determined in conformity with IFRS; provided that there shall be excluded, without duplication,
(a)the income (or loss) of any Person (other than a Subsidiary of the Subject Person) in which any other Person (other than the Subject Person or any of its Subsidiaries) has an interest, except, with respect to any income, to the extent of the amount of dividends or distributions or other payments (including any ordinary course dividend, distribution or other payment) paid in Cash (or to the extent converted into Cash) to the Subject Person or any of its Subsidiaries by such Person during such period,
(b)gains, income, losses, expenses or charges (less all fees and expenses chargeable thereto) attributable to asset Dispositions (including asset retirement costs) or returned surplus assets of any Pension Plan outside of the ordinary course of business,
(c)gains, income, losses, expenses or charges from (i) extraordinary items and (ii) nonrecurring or unusual items (including (x) costs of and payments of actual or prospective legal settlements, fines, judgments or orders and (y) gains, income, losses, expenses or charges arising from insurance claims and settlements),
(d)any unrealized or realized net foreign currency translation or transaction gains or losses impacting net income (including currency re-measurements of Indebtedness and any net gains or losses resulting from Hedge Agreements for currency exchange risk associated with the above or any other currency related risk and those resulting from intercompany Indebtedness),
(e)any net gains, charges or losses with respect to (i) disposed, abandoned and discontinued operations (other than assets held for sale) and any accretion or accrual of discounted liabilities on the disposal of such disposed, abandoned and discontinued operations and (ii) facilities, plants, stores or distribution centers that have been closed during such period,
(f)any net income or loss (less all fees and expenses or charges related thereto) attributable to the early extinguishment of Indebtedness,
(g)(i) any charges, costs, expenses, accruals or reserves incurred pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, pension plan, any stock subscription or shareholder agreement or any distributor equity plan or agreement and (ii) any charges, costs, expenses, accruals or reserves in connection with the rollover, acceleration or payout of Capital Stock held by management of the Subject Person, in each case, to the extent that (in the case of any Cash charges, costs and expenses) such charges, costs or expenses are funded with net Cash proceeds contributed to the Subject Person as a capital contribution or as a result of the sale or issuance of Capital Stock (other than Disqualified Capital Stock) of the Subject Person,
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NY\6497185.2
Exhibit 10.1
(h)accruals and reserves that are established or adjusted within 12 months after the Closing Date that are so required to be established or adjusted as a result of the Transactions in accordance with IFRS or as a result of the adoption or modification of accounting policies,
(i)any (i) write-off or amortization made in such period of deferred financing costs and premiums paid or other expenses incurred directly in connection with any early extinguishment of Indebtedness, (ii) good will or other asset impairment charges, write-offs or write-downs or (iii) amortization of intangible assets,
(j)(i) effects of adjustments (including the effects of such adjustments pushed down to the Subject Person and its Subsidiaries) in the Subject Person’s consolidated financial statements pursuant to IFRS (including in the inventory, property and equipment, software, goodwill, intangible assets, in-process research and development, deferred revenue, leases and debt line items thereof) resulting from the application of recapitalization accounting or acquisition or purchase accounting, as the case may be, in relation to the Transactions or any consummated acquisition or the amortization or write-off of any amounts thereof and (ii) the cumulative effect of changes in accounting principles, and
(k)the net income for such period of any Subsidiary (other than any Guarantor or any Borrower), to the extent the declaration or payment of dividends or similar distributions by that Subsidiary of its net income is not at the date of determination permitted without any prior governmental approval (which has not been obtained) or, directly or indirectly, by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule, or governmental regulation applicable to that Subsidiary or its stockholders, unless such restriction with respect to the payment of dividends or similar distributions has been legally waived; provided that Consolidated Net Income will be increased by the amount of dividends or other distributions or other payments actually paid in Cash (or to the extent converted into Cash) to Subject Person or a Subsidiary thereof in respect of such period, to the extent not already included therein.
“Consolidated Total Assets” means, at any date, all amounts that would, in conformity with IFRS, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person and its Subsidiaries at such date.
“Consolidated Total Debt” means, as at any date of determination, the aggregate principal amount of all Indebtedness for borrowed money (including drawn letters of credit that have not been reimbursed within three Business Days (except to the extent reimbursed with Indebtedness for borrowed money), Capital Leases and purchase money Indebtedness described in clauses (a), (b), (c) and (d) of the definition of “Indebtedness” of the Parent and its Subsidiaries.
“Consolidated Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
“Contesting Notice” has the meaning assigned to such term in Section 12.10(f)(ii).
“Contract Consideration” has the meaning given it in clause (b)(xv) of the definition of “Excess Cash
Flow”.
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any material indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“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, and “Controlling” and “Controlled” have meanings correlative thereto.
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NY\6497185.2
Exhibit 10.1
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension. “Creditor/Representative Xxxxxxx” has the meaning specified in the Intercreditor Agreement. “Cure Amount” has the meaning specified in Section 8.03.
“Cure Right” has the meaning specified in Section 8.03.
“Current Assets” means, at any time, the consolidated current assets (other than Cash, the current portion of current and deferred Taxes based on income, profits or capital, permitted loans made to third parties, assets held for sale, pension assets, deferred bank fees, derivative financial instruments, Cash Equivalents and insurance claims) of the Parent and its Subsidiaries.
“Current Liabilities” means, at any time, the consolidated current liabilities of the Parent and its Subsidiaries at such time, but excluding, without duplication, (a) the current portion of any long-term Indebtedness,
(b) outstanding revolving loans, (c) the current portion of interest expense, (d) the current portion of any Capital Leases, (e) the current portion of current and deferred Taxes based on income, profits or capital, (f) liabilities in respect of unpaid earn-outs and other contingent consideration obligations, (g) the current portion of any other long- term liabilities, (h) accruals relating to restructuring reserves; (i) liabilities in respect of funds of third parties on deposit with the Parent or any of its Subsidiaries, (j) any liabilities recorded in connection with stock-based awards, partnership interest-based awards, awards of profits interests, deferred compensation awards and similar incentive based compensation awards or arrangements and (k) liabilities related to Restricted Payments declared but not yet paid.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback that is at least one (1) Business Day) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Debt Fund Affiliate” means any Affiliate of any Sponsor (other than a natural person) (i) that is primarily engaged in, or advises funds or other investment vehicles that are primarily engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course and (ii) for which no personnel making investment decisions in respect of any equity fund which has a direct or indirect equity investment in any Parent Company, any Borrower or any of their Subsidiaries has the right to make any investment decisions.
“Debtor Joinder Agreement” means a joinder agreement substantially in the form attached as Exhibit 1 to the Intercreditor Agreement, as adopted to conform with local law requirements.
“Debtor Relief Laws” means the U.S. Bankruptcy Code, the German Insolvency Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Declined Amounts” has the meaning assigned to such term in Section 2.05(c). “Declining Lender” has the meaning specified in Section 2.05(c).
“Dedicated Receivables Accounts” means bank accounts of the Borrowers and their Subsidiaries, or any one of them, (a) used to collect, receive and hold accounts receivable owed to any Borrower or any Subsidiary arising in the ordinary course of business from the sale of goods or services that are the subject of a Permitted Securitization or Permitted Factoring Arrangement or (b) into which funds constituting the purchase price or similar payments received from any Qualified Factoring Agent in connection with a Qualified Factoring Arrangement or any
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NY\6497185.2
Exhibit 10.1
Securitization Subsidiary in connection with a Permitted Securitization (but excluding, for the avoidance of doubt, collections on receivables) are credited, which bank accounts do not at any time, in the aggregate, hold on deposit more than €5,000,000 of funds of any Loan Party or any Subsidiary other than funds described in clause (a) of this definition.
“Default” means any event or condition which upon notice, lapse of time or both would (unless cured or waived) become an Event of Default.
“Default Rate” means an interest rate equal to (after as well as before judgment), (a) with respect to any overdue principal for any Loan, the applicable interest rate for such Loan plus 2.00% per annum (provided that with respect to Term Benchmark Loans or Eurocurrency Rate Loans, the determination of the applicable interest rate is subject to Section 2.02(c) to the extent that Term Benchmark Loans or Eurocurrency Rate Loans may not be converted to, or continued as, Term Benchmark Loans or Eurocurrency Rate Loans, as applicable, pursuant thereto) and (b) with respect to any other overdue amount, including overdue interest, the interest rate applicable to Base Rate Loans that are Term Loans plus 2.00% per annum, in each case, to the fullest extent permitted by applicable Laws.
“Defaulting Lender” means, subject to Section 2.17(b), any Lender that (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit within three Business Days of the date required to be funded by it hereunder, (b) has notified the Borrowers or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or, solely with respect to a Revolving Credit Lender, under other agreements generally in which it commits to extend credit, (c) has failed, within three Business Days after reasonable request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such confirmation by the Administrative Agent) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment or (iv) become the subject of a Bail-In Action; provided that no Lender shall be a Defaulting Lender solely by virtue of (x) the ownership or acquisition by a Governmental Authority of any Equity Interest in that Lender or any direct or indirect parent company thereof 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, or (y) the occurrence of any of the events described in clause (d)(i), (d)(ii) or (d)(iii) of this definition which in each case has been dismissed or terminated prior to the date of this Agreement. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) upon delivery of written notice of such determination to the Borrowers, each L/C Issuer and each Lender.
“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
“Derivative Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement, interest rate option (including a cap, collar or floor), and any other instrument linked to interest rates that gives rise to similar credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency interest-rate swap, any forward foreign- exchange contract, any currency option, and any other instrument linked to exchange rates that gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any equity-linked option, any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and
(d) any commodity (including precious metal) derivative transaction, including any commodity-linked swap, any commodity-linked option, any forward commodity-linked contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided that no phantom stock or similar plan providing for payments only on
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NY\6497185.2
Exhibit 10.1
account of services provided by current or former directors, officers, employees, members of management, managers or consultants of the Parent or its subsidiaries shall be a Derivative Transaction.
“Designated Gross Amount” has the meaning specified in Section 2.19(b)(ii). “Designated Net Amount” has the meaning specified in Section 2.19(b)(ii).
“Designated Non-Cash Consideration” means the fair market value (as determined by the Borrower Representative in good faith) of non-Cash consideration received by the Borrower Representative or a Subsidiary in connection with a Disposition pursuant to Section 7.07(h) that is 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 (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
“Discount Range” has the meaning assigned to such term in the definition of “Dutch Auction”. “Disposition” or “Dispose” means the sale, lease, sublease, transfer, license, or other disposition of any
property of any Person.
“Disqualified Capital Stock” means any Capital Stock which, by its terms (or by the terms of any Security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (i) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (ii) is or becomes convertible into or exchangeable (unless at the sole option of the issuer thereof) for (a) debt securities or (b) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued, (iii) contains any mandatory repurchase obligation which may come into effect prior to the Termination Date or (iv) provides for the scheduled payments of dividends in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that (x) any Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Capital Stock upon the occurrence of a change in control or a Disposition occurring prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued shall not constitute Disqualified Capital Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions prior to the Termination Date and (y) for purposes of clause (i) through (iv) above, it is understood and agreed that if any such maturity, redemption, conversion, exchange, repurchase obligation or scheduled payment is in part, only such part coming into effect prior to, in the case of clauses (i), (ii) and (iv) above, the date that is 91 days following the Latest Maturity Date and, in the case of clause
(iii) above, prior to the Termination Date, shall constitute Disqualified Capital Stock.
Notwithstanding the preceding sentence, (A) if such Capital Stock is issued to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of any Borrower or any Subsidiary, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations and (B) no Capital Stock held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or Immediate Family Members) of any Borrower (or any Parent Company or any Subsidiary) shall be considered Disqualified Capital Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
“Disqualified Institution” means (i) any Person identified to the Administrative Agent in writing prior to the Closing Date, (ii) any other Person identified by name in writing to the Administrative Agent and the Lenders after
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NY\6497185.2
Exhibit 10.1
the Closing Date to the extent such Person becomes a competitor of Parent or its subsidiaries, which designations shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest in the Loans and (iii) any Affiliate of any Person referred to in clauses (i) or (ii) above that is either readily identifiable by name or has otherwise been identified as an Affiliate by the Parent in writing; provided that a “competitor” or an Affiliate of a competitor shall not include any Bona Fide Debt Fund (other than a Person identified in accordance with clause (i) above) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business which is managed, sponsored or advised by any Person controlling, controlled by or under common control with such competitor or Affiliate thereof, as applicable, and for which no personnel involved with the investment of such competitor or Affiliate thereof, as applicable, (A) makes any investment decisions or (B) has access to any information (other than information publicly available) relating to the Loan Parties or any entity that forms a part of the Loan Parties’ business (including their subsidiaries).
“Dollar” and “$” mean lawful money of the United States. “Dollar Amount” means, at any time:
(a)with respect to any Loan denominated in Dollars, the principal amount thereof then outstanding (or in which such participation is held);
(b)with respect to any Loan denominated in Euros or an Alternative Currency, the principal amount thereof then outstanding in Euros or the relevant Alternative Currency, converted to Dollars in accordance with Section 1.08; and
(c)with respect to any L/C Obligation (or any risk participation therein), (A) if denominated in Dollars, the amount thereof and (B) if denominated in Euros or an Alternative Currency, the amount thereof converted to Dollars in accordance with Section 1.08(a) and Section 1.08(b).
“DPTA” has the meaning assigned to such term in Section 12.10(e)(i).
“Dutch Auction” means an auction (an “Auction”) conducted by an Affiliated Lender or a Debt Fund Affiliate (any such Person, the “Auction Party”) in order to purchase Term Loans (or any Additional Term Loans, which for purposes of this definition, shall be deemed to be Term Loans (and the holders thereof, Lenders)) in accordance with the following procedures; provided that no Auction Party shall initiate any Auction unless (I) at least five Business Days shall have passed since the consummation of the most recent purchase of Term Loans pursuant to an Auction conducted hereunder; or (II) at least three Business Days shall have passed since the date of the last Failed Auction which was withdrawn pursuant to clause (c)(i) below:
(a)Notice Procedures. In connection with an Auction, the Auction Party will provide notification to the Auction Agent (for distribution to the relevant Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each Auction Notice shall be in a form reasonably acceptable to the Auction Agent and shall (i) specify the maximum aggregate principal amount of the Term Loans subject to the Auction, in a minimum amount of €5,000,000 and whole increments of €1,000,000 in excess thereof (or, in any case, such lesser amount as is otherwise reasonably acceptable to the Auction Agent) (the “Auction Amount”), (ii) specify the discount to par, which may be a range (the “Discount Range”) of percentages of the par principal amount of the Term Loans subject to such Auction, that represents the range of purchase prices that the Auction Party would be willing to accept in the Auction,
(iii) be extended, at the sole discretion of the Auction Party, to (x) each Lender and/or (y) each Lender with respect to any Term Loan Tranche and (iv) remain outstanding through the Auction Response Date. The Auction Agent will promptly provide each appropriate Lender with a copy of such Auction Notice and a form of the Return Bid to be submitted by a responding Lender to the Auction Agent (or its delegate) by no later than 5:00 p.m., New York City time, on the date specified in such Auction Notice (or such later date as the Auction Party may agree to extend with the reasonable consent of the Auction Agent) (the “Auction Response Date”).
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NY\6497185.2
Exhibit 10.1
(b)Reply Procedures. In connection with any Auction, each Lender holding the relevant Term Loans subject to such Auction may, in its sole discretion, participate in such Auction and may provide the Auction Agent with a notice of participation (the “Return Bid”) which shall be in a form reasonably acceptable to the Auction Agent, and shall specify (i) a discount to par (that must be expressed as a price at which it is willing to sell all or any portion of such Term Loans) (the “Reply Price”), which (when expressed as a percentage of the par principal amount of such Term Loans) must be within the Discount Range, and (ii) a principal amount of such Term Loans, which must be in whole increments of €1,000,000 (or, in any case, such lesser amount as is specified in the Auction Notice) (the “Reply Amount”). A Lender may avoid the minimum amount condition specified in clause (ii) of the preceding sentence solely when submitting a Reply Amount equal to the Lender’s entire remaining amount of such Term Loans. Lenders may only submit one Return Bid per Auction but each Return Bid may contain up to three bids only one of which may result in a Qualifying Bid (as defined below). In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Auction Agent, an Assignment and Assumption with the principal amount of the Term Loans to be assigned to be left in blank, which amount shall be completed by the Auction Agent in accordance with the final determination of such Xxxxxx’s Qualifying Bid pursuant to clause (c) below. Any Lender whose Return Bid is not received by the Auction Agent by the Auction Response Date shall be deemed to have declined to participate in the relevant Auction with respect to all of its Term Loans.
(c)Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Agent prior to the applicable Auction Response Date, the Auction Agent, in consultation with the Auction Party, will determine the applicable price (the “Applicable Price”) for the Auction, which will be the lowest Reply Price for which the Auction Party can complete the Auction at the Auction Amount; provided that, in the event that the Reply Amounts are insufficient to allow the Auction Party to complete a purchase of the entire Auction Amount (any such Auction, a “Failed Auction”), the Auction Party shall either, at its election, (i) withdraw the Auction or (ii) complete the Auction at an Applicable Price equal to the highest Reply Price sufficient to complete a purchase of the entire Auction Amount. The Auction Party shall purchase the relevant Term Loans (or the respective portions thereof) from each Lender with a Reply Price that is equal to or lower than the Applicable Price (“Qualifying Bids”) at the Applicable Price; provided that if the aggregate proceeds required to purchase all Term Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction, the Auction Party shall purchase such Term Loans at the Applicable Price ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Auction Agent in its discretion). If a Lender has submitted a Return Bid containing multiple bids at different Reply Prices, only the bid with the lowest Reply Price that is equal to or less than the Applicable Price will be deemed to be the Qualifying Bid of such Lender (e.g., a Reply Price of €100 with a discount to par of 1.0%, when compared to an Applicable Price of €100 with a 2.0% discount to par, will not be deemed to be a Qualifying Bid, while, however, a Reply Price of €100 with a discount to par of 2.50% would be deemed to be a Qualifying Bid). The Auction Agent shall promptly, and in any case within five Business Days following the Auction Response Date with respect to an Auction, notify (I) the Borrower Representative of the respective Lenders’ responses to such solicitation, the effective date of the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount of the Term Loans and the Tranches thereof to be purchased pursuant to such Auction, (II) each participating Lender of the effective date of the purchase of Term Loans pursuant to such Auction, the Applicable Price, and the aggregate principal amount and the Tranches of Term Loans to be purchased at the Applicable Price on such date, (III) each participating Lender of the aggregate principal amount and the Tranches of the Term Loans of such Lender to be purchased at the Applicable Price on such date and (IV) if applicable, each participating Lender of any rounding and/or proration pursuant to the second preceding sentence. Each determination by the Auction Agent of the amounts stated in the foregoing notices to the Borrower Representative and Lenders shall be conclusive and binding for all purposes absent manifest error.
(d)Additional Procedures.
(i)Once initiated by an Auction Notice, the Auction Party may not withdraw an Auction other than a Failed Auction. Furthermore, in connection with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will be
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NY\6497185.2
Exhibit 10.1
obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Price.
(ii)To the extent not expressly provided for herein, each purchase of Term Loans pursuant to an Auction shall be consummated pursuant to procedures consistent with the provisions in this definition, established by the Auction Agent acting in its reasonable discretion and as reasonably agreed by the Borrower Representative.
(iii)In connection with any Auction, the Borrowers and the Lenders acknowledge and agree that the Auction Agent may require as a condition to any Auction, the payment of customary fees and expenses by the Auction Party in connection therewith as agreed between the Auction Party and the Auction Agent.
(iv)Notwithstanding anything in any Loan Document to the contrary, for purposes of this definition, each notice or other communication required to be delivered or otherwise provided to the Auction Agent (or its delegate) shall be deemed to have been given upon the Auction Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.
(v)The Borrowers and the Lenders acknowledge and agree that the Auction Agent may perform any and all of its duties under this definition by itself or through any Affiliate of the Auction Agent and expressly consent to any such delegation of duties by the Auction Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions pursuant to this Agreement shall apply to each Affiliate of the Auction Agent and its respective activities in connection with any purchase of Term Loans provided for in this definition as well as activities of the Auction Agent.
“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.
“Eighth Amendment” means the certain eighth amendment to this Agreement dated as of April 2, 2019 by and among the Loan Parties, the Lenders party thereto, the Amendment Arranger (as defined therein), each L/C Issuer party thereto and the Administrative Agent.
“Eighth Amendment Effective Date” shall have the meaning given to such term in the Eighth Amendment. “Eligible Assignee” means (a) a Lender, (b) a commercial bank, insurance company, finance company,
financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of
the Securities Act), (c) any Affiliate of a Lender, (d) an Approved Fund of a Lender or (e) to the extent permitted under Section 10.05(g), any Affiliated Lender or any Debt Fund Affiliate; provided that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any Disqualified Institution or (iii) except as permitted under Section 10.05(g) (including with respect to Debt Fund Affiliates), the Parent or any of its Affiliates.
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NY\6497185.2
Exhibit 10.1
“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
“Environmental Claim” means any investigation, notice, notice of violation, claim, allegation, accusation, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (b) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (c) in connection with any actual or alleged damage, injury, threat or harm to natural resources or the environment.
“Environmental Laws” means any and all applicable current or future foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other applicable requirements of Governmental Authorities and the common law relating to
(a) environmental matters, including those relating to any Hazardous Materials Activity; or (b) the generation, use, storage, transportation or disposal of or exposure to Hazardous Materials, in any manner applicable to the Borrowers or any of their Subsidiaries or any Facility.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrowers or any Subsidiary 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, interests, rights, participations or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of any of the foregoing (including through convertible securities).
“Equity Issuance” means any issuance for cash by any Person to any other Person of (a) its Equity Interests,
(b) any of its Equity Interests pursuant to the exercise of options or warrants, (c) any of its Equity Interests pursuant to the conversion of any debt securities to equity or (d) any options or warrants relating to its Equity Interests.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person is a member and (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member.
“ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the 30-day notice period has been waived); (b) the failure of any of the Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan, (c) the provision to the Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates by the administrator of any Pension Plan pursuant to Section 4041(a)(2) or Section 302 of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by the Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to the Borrowers, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan, or the appointment of a trustee to administer any Pension Plan; (f) the imposition of liability on the Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) of the
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NY\6497185.2
Exhibit 10.1
Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates from any Multiemployer Plan if there is any liability therefor under Title IV of ERISA, or the receipt by the Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (h) the occurrence of an act or omission which could reasonably be expected to give rise to the imposition on the Borrowers or any of their Subsidiaries of fines, penalties, excise taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Pension Plan; or (i) the incurrence of liability or the imposition of a Lien on the assets of the Borrowers or any of their Subsidiaries pursuant to Section 436 or 430(k) of the Code or pursuant to Title IV of ERISA with respect to any Pension Plan, other than for PBGC premiums due but not delinquent.
“ESG Trigger” means the SO2 Emissions Targets and the NOx Emissions Targets. “Euro Amount” means, at any time:
(a)with respect to any Loan denominated in Euros, the principal amount thereof then outstanding (or in which such participation is held);
(b)with respect to any Loan denominated in Dollars or an Alternative Currency, the principal amount thereof then outstanding in Dollars or the relevant Alternative Currency, converted to Euros in accordance with Section 1.08; and
(c)with respect to any L/C Obligation (or any risk participation therein), (A) if denominated in Euros, the amount thereof and (B) if denominated in Dollars or an Alternative Currency, the amount thereof converted to Euros in accordance with Section 1.08(a) and Section 1.08(b).
“Eurocurrency Rate” means, for any Interest Period:
(a)in the case of any Eurocurrency Rate Loan denominated in Dollars:[reserved];
(i)the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the Reuters Page LIBOR01 (or any successor thereto) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the London interbank market for deposits of amounts in Dollars for delivery on the first day of such Interest Period, provided that if such rate is below zero, the Eurocurrency Rate will be deemed to be zero;
(ii)if the rate referenced in the preceding clause (a)(i) does not appear on such page or service or such page or service shall not be available, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service that displays an offered rate administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of that rate) for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the London interbank market for deposits of amounts in Dollars for delivery on the first day of such Interest Period; or
(iii)if the rates referenced in the preceding clauses (a)(i) and (a)(ii) are not available, the Interpolated Rate;
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NY\6497185.2
Exhibit 10.1
(b)
in the case of any Eurocurrency Rate Loan denominated in Euros:

(i)the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on Reuters Page EURIBOR01 (or any successor thereto) for deposits in Euros (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (Brussels time) two Business Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the European interbank market for deposits of amounts in Euros for delivery on the first day of such Interest Period, provided that if such rate is below zero, the Eurocurrency Rate will be deemed to be zero;
(ii)if the rate referenced in the preceding clause (b)(i) does not appear on such page or service or such page or service shall not be available, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service that displays an offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for deposits in Euros (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (Brussels time) two Business Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the European interbank market for deposits of amounts in Euros for delivery on the first day of such Interest Period; or
(iii)if the rates referenced in the preceding clauses (b)(i) and (a)(ii) are not available, the Interpolated Rate;
(c)in the case of any Eurocurrency Rate Loan denominated in an Alternative Currency:
(i)the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate administered by the ICE Benchmark Administration Limited (or any other Person that takes over the administration of that rate) that appears on Reuters Page LIBOREURIBOR01 (or any successor thereto) that displays an average British Bankers Association Interest Settlement Rate (or any other person which takes over the administration of that rate) for deposits in such Alternative Currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the London interbank market for deposits of amounts in the relevant currency for delivery on the first day of such Interest Period, provided that if such rate is below zero, Eurocurrency Rate will be deemed to be zero;
(ii)if the rate referenced in the preceding clause (c)(i) does not appear on such page or service or such page or service shall not be available, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service that displays an average British Bankers Association Interest Settlement Rate (or any other person which takes over the administration of that rate) for deposits in such Alternative Currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or, if different, the date on which quotations would customarily be provided by leading banks in the London interbank market for deposits of amounts in the relevant currency for delivery on the first day of such Interest Period; or
(iii)if the rates referenced in the preceding clauses (c)(i) and (a)(ii) are not available, the Interpolated Rate.
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NY\6497185.2
Exhibit 10.1
“Eurocurrency Rate Loan” means a Loan, whether denominated in Dollars, Euros or in an Alternative Currency, which bears interest at a rate based on the applicable Adjusted Eurocurrency Rate.
“European Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of May 29, 2000 on Insolvency Proceedings, as amended from time to time.
“Euros”, “€” and “EUR” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
“EU Bail-In Legislation Schedule” means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
“EU Sanctions Laws and Regulations” means any economic or financial sanctions or requirements imposed by the European Union, the United Nations or the Federal Republic of Germany.
“Event of Default” has the meaning specified in Article VIII.
“Excess Cash Flow” means, for any Test Period ending on the last day of a Fiscal Year, an amount (if positive) equal to:
(a)the sum, without duplication, of the amounts for such period of the following:
(i)Consolidated Net Income for such period, plus
(ii)the amount of all non-Cash charges or expenses (including depreciation and amortization) deducted in arriving at such Consolidated Net Income, but excluding any non-Cash charges representing an accrual or reserve for potential Cash items in any future period and excluding amortization of all prepaid Cash items that were paid (or required to have been paid) in a prior period, plus
(iii)decreases in Consolidated Working Capital for such period (other than any such decreases (A) arising from acquisitions or Dispositions of all or substantially all of the Capital Stock of any Subsidiary of the Borrowers or any business line, unit or division of the Borrowers or any such Subsidiary, in each case by the Borrowers and their Subsidiaries completed during such period, (B) the application of acquisition and/or purchase recapitalization accounting, (C) the effect of reclassification during such period between Current Assets and long-term assets and Current Liabilities and long-term liabilities (with a corresponding restatement to the prior period to give effect to such reclassification) and (D) the effect of any fluctuations in the amount of accrued and contingent obligations under any Hedge Agreement), plus
(iv)the aggregate net amount of any non-Cash loss on Dispositions of property by the Borrowers and their Subsidiaries during such period (other than Dispositions in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income, plus
(v)to the extent deducted, or not included in arriving at such Consolidated Net Income, (A) increases in non-current deferred revenue, (B) increases in accruals for future lease payments in respect of closed branches plus accretion thereof, (C) increases in non-current IFRS rent equalization liabilities, (D) increases in deferred landlord allowances and (E) accretion of asset retirement obligations recorded in accordance with IFRS, plus
(vi)Cash income or gain (actually received in Cash) of the type described in clauses (b), (c), (d), (e) and (f) of the definition of “Consolidated Net Income”, to the extent excluded from the calculation of Consolidated Net Income for such period pursuant to the definition thereof (other than in respect of sales or dispositions to the extent the Borrowers is permitted to reinvest such proceeds or is required to prepay the Loan with such proceeds, in each case, pursuant to Section 2.05(b)(ii)), plus
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NY\6497185.2
Exhibit 10.1
(vii)expenses deducted from Consolidated Net Income during such period in respect of expenditures made during any prior period for which a deduction from Excess Cash Flow was made in such prior period pursuant to clause (b) below, minus,
(b)the sum, without duplication, of the amounts for such period of the following:
(i)the amount of (A) all non-Cash credits, gains and income included in arriving at such Consolidated Net Income (including non-Cash gains on bargain purchases and excluding any such credit, gain or income representing the reversal of an accrual or reserve for a potential Cash item that reduced Consolidated Net Income in any prior period) and (B) all Cash expenses, charges and losses excluded in arriving at such Consolidated Net Income, in each case, to the extent not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness), plus
(ii)without duplication of amounts deducted from Excess Cash Flow in respect of a prior period, the aggregate amount actually paid by the Borrowers and their Subsidiaries in Cash during such period or after such period and prior to the relevant date of such Excess Cash Flow prepayment required by Section 2.05(b)(i) on account of capital expenditures and payments in respect of the exercise of purchase options under operating leases (excluding the principal amount of Indebtedness, other than revolving Indebtedness, incurred to finance such capital expenditures), plus
(iii)the aggregate amount of all principal payments and purchases of Indebtedness of the Borrowers and their Subsidiaries (including (A) scheduled principal payments with respect to Indebtedness pursuant to Section 2.07(a)(i) of this Agreement (or any equivalent provision in any Refinancing Indebtedness) and voluntary prepayments of Term Loans pursuant to Section 2.05(a) of this Agreement (except prepayments of Revolving Credit Loans that are not accompanied by a corresponding permanent commitment reduction of the corresponding Revolving Credit Commitments and Loans repurchased pursuant to Dutch Auctions or open market purchases in an amount equal to the discounted purchase price of such Loans paid in respect of such Loans pursuant to such Dutch Auctions or through open market purchases) (or any equivalent provision in any Refinancing Indebtedness) (other than prepayments of loans deducted pursuant to clause (B) of Section 2.05(b)(i) of this Agreement)), (B) the principal component of payments in respect of Capital Leases, (C) the amount of any mandatory prepayment of Term Loans pursuant to Section 2.05(b)(ii) of this Agreement (or any equivalent provision in any Refinancing Indebtedness), in each case, with the Net Proceeds of a Prepayment Asset Sale to the extent required due to a Disposition that resulted in an increase in Consolidated Net Income and not in excess of the amount of such increase and (D) purchases of Term Loans by the Borrowers and their Subsidiaries pursuant to Section 10.05(g) of this Agreement (or any equivalent provisions in any Refinancing Indebtedness), in each case, limited to the aggregate amount actually paid in Cash, but excluding (1) all other prepayments of Term Loans and
(2) all repayments of any revolving credit facility or arrangements (except to the extent there is an equivalent permanent reduction in commitments thereunder)) made during such period, except to the extent financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness), plus
(iv)increases in Consolidated Working Capital for such period (other than any such increases (A) arising from acquisitions or Dispositions of all or substantially all of the Capital Stock of any Subsidiary of the Borrowers or any business line, unit or division of the Borrowers or any such Subsidiary, in each case by the Borrowers and their Subsidiaries completed during such period, (B) the application of acquisition and/or purchase recapitalization accounting, (C) the effect of reclassification during such period between Current Assets and long-term assets and Current Liabilities and long-term liabilities (with a corresponding restatement to the prior period to give effect to such reclassification) and (D) the effect of any fluctuations in the amount of accrued and contingent obligations under any Hedge Agreement), plus
(v)to the extent included, or not deducted in arriving at such Consolidated Net Income, the aggregate consideration actually paid in Cash by the Borrowers or any of their Subsidiaries during such period or after such period and prior to the relevant date of such Excess Cash Flow prepayment required by Section 2.05(b)(i) with respect to Investments permitted under Section 7.06 (and not financed with long-term Indebtedness
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NY\6497185.2
Exhibit 10.1
(other than revolving Indebtedness)) (other than Investments in (x) Cash and Cash Equivalents and (y) the Borrowers or any of their Subsidiaries), plus
(vi)to the extent included, or not deducted in arriving at such Consolidated Net Income, (A) decreases in non-current deferred revenue, (B) decreases in accruals for future lease payments made in respect of closed branches, (C) decreases in non-current IFRS rent equalization liabilities, (D) decreases in deferred landlord allowances and (E) amounts paid with respect to asset retirement obligations, plus
(vii)any required up-front Cash payments in respect of Hedge Agreements to the extent not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) and not deducted in arriving at such Consolidated Net Income, plus
(viii)the amount of Restricted Payments made in Cash during such period pursuant to clauses (a)(i), (a)(ii), (a)(iv), and (a)(x) of Section 7.04 (or otherwise consented to by the Required Lenders) except, in each case, to the extent financed with long term Indebtedness (other than revolving Indebtedness), plus
(ix)without duplication of amounts deducted from Excess Cash Flow in respect of a prior period, at the option of the Borrower Representative, the aggregate consideration (including earn-outs) required to be paid in Cash by the Borrowers or their Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to capital expenditures, acquisitions or Investments permitted by Section 7.06 or otherwise consented to by the Required Lenders (other than Investments in
(x) Cash and Cash Equivalents and (y) the Borrowers or any of their Subsidiaries) to be consummated or made during the period of four consecutive Fiscal Quarters of the Borrowers following the end of such period (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness)); provided that to the extent the aggregate amount actually utilized to finance such capital expenditures, acquisitions or Investments during such subsequent period of four consecutive Fiscal Quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters, plus
(x)the amount of Cash Taxes paid in such period (and Tax reserves set aside and payable or reasonably estimated to be payable within the four consecutive Fiscal Quarters following such period) to the extent such Taxes exceed the amount of Tax expense deducted in arriving at Consolidated Net Income for such period; provided that, to the extent the aggregate amount of Tax reserves set aside and actually paid during such subsequent four consecutive Fiscal Quarters is less than such amount of Tax reserves set aside, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters, plus
(xi)to the extent not expensed (or exceeding the amount expensed) during such period or not deducted (or exceeding the amount deducted) in calculating Consolidated Net Income, the aggregate amount of expenditures, fees, costs and expenses paid in Cash by the Borrowers and their Subsidiaries during such period, other than to the extent financed with long-term Indebtedness (other than revolving Indebtedness).
“Exchange Act” means the Securities Exchange Act of 1934, as amended. “Exchange Percentage” has the meaning specified in Section 12.01(a).
“Exchange Rate” means on any day with respect to Dollars or any Alternative Currency, the rate at which such currency may be exchanged into Euros, as set forth at approximately 11:00 a.m. (London time) on such day on the Reuters World Currency Page for such currency; in the event that such rate does not appear on any Reuters World Currency Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrowers, or, in the absence of such agreement, such Exchange Rate shall instead be the arithmetic average of the spot rates of exchange of the Administrative Agent in the market where its foreign currency exchange operations in respect of such
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NY\6497185.2
Exhibit 10.1
currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date for the purchase of Euros for delivery two Business Days later.
“Excluded Information” means information regarding the Borrowers, the Sponsors or their respective Affiliates that may be material to a decision made by a Lender to participate in any assignment to an Affiliated Lender, including any information which is (a) not publicly available, (b) material with respect to the Parent Companies, the Borrowers and their respective subsidiaries or their respective securities for purposes of U.S. federal and state securities laws and (c) not of a type that would be publicly disclosed in connection with any issuance by the Parent Companies, the Borrowers or any of their respective subsidiaries of debt or equity securities issued pursuant to a public offering, a Rule 144A offering or other private placement where assisted by a placement agent.
“Excluded Subsidiary” means any Subsidiary that is (a) an Unrestricted Subsidiary, (b) not wholly owned directly by any Parent Company, the German Borrower, the U.S. Borrower or one or more of their respective wholly owned Subsidiaries, (c) an Immaterial Subsidiary (except to the extent necessary to comply with Section 6.13 hereof), (d) [reserved], (e) Foreign Subsidiary for which the providing of a Guarantee of the Obligations would reasonably be expected to result in a violation or breach of, or conflict with, fiduciary duties of such Foreign Subsidiary’s officers, directors, or managers as of the Closing Date, (f) a Subsidiary that is prohibited by applicable Law as of the Closing Date from guaranteeing the Facilities, or which would require governmental (including regulatory) consent, approval, license or authorization to provide a guarantee unless, such consent, approval, license or authorization has been received, in each case so long as the Administrative Agent shall have received a certification from a Responsible Officer of each Borrower as to the existence of such prohibition or consent, approval, license or authorization requirement as of the Closing Date, (g) a Subsidiary that is prohibited from guaranteeing the Facilities by any Contractual Obligation in existence on the Closing Date and is listed on Schedule 1.01(f) hereto (or, in the case of any newly-acquired Subsidiary, in existence at the time of acquisition thereof but not entered into in contemplation thereof), (h) a Subsidiary with respect to which a guarantee by it of the Facilities would result in material adverse tax consequences to Parent or one or more of its Subsidiaries, as reasonably determined by the Borrower Representative, (i) not-for-profit subsidiaries, (j) any Foreign Subsidiary to the extent excluded by application of the Guaranty and Security Principles, (k) Subsidiaries that are special purpose entities, (l) any other Subsidiary with respect to which the Borrowers and the Administrative Agent reasonably agree that the cost or other consequences (including any adverse tax consequences) of guaranteeing the Facilities shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (m) any Subsidiary organized under the laws of South Africa, Brazil or China; provided that (i) no Borrower and no Parent Company shall constitute an “Excluded Subsidiary” and (ii) if a Subsidiary executes this Agreement as a “Guarantor,” then it shall not constitute an “Excluded Subsidiary” (unless released from its obligations in accordance with the terms hereof); provided further, that no Subsidiary of the Borrowers shall be an Excluded Subsidiary if such Subsidiary is not an “Excluded Subsidiary” (or comparable term) for the purposes of any Incremental Equivalent Debt, Refinancing Notes or any other Permitted Additional Debt.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest would otherwise have become effective with respect to such Swap Obligation but for such Guarantor’s failure to constitute an “eligible contract participant”; provided that with the written consent of the Administrative Agent and the Borrowers, a given Excluded Swap Obligation (determined as provided above without regard to this proviso) may be excluded from this definition. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof).
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by such Recipient’s net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result
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NY\6497185.2
Exhibit 10.1
of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office or any other kind of permanent establishment located in, the jurisdiction imposing such Tax, (ii) that are Other Connection Taxes or (iii) imposed under § 49 para. 1 Nr. 5 lit. c (aa) of the German Income Tax Act by virtue of the Lender having security over German-situs real estate (inländischen Grundbesitz) or over rights subject to the civil law provisions applicable to real estate (inländische Rechte, die den Vorschriften des bürgerlichen Rechts über Grundstücke unterliegen) (“German Real Estate Security”), (b) Taxes attributable to such Recipient’s failure to comply with Section 3.01(h), (c) any withholding Taxes imposed under FATCA and (d) any withholding tax imposed on payments to a Lender by the German tax authorities under § 50a para. 7 German Income Tax Act by virtue of the Lender having German Real Estate Security.
“Executive Order” means Executive Order No. 13224 of September 23, 2001, entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)).
“Exempt Intra-Group Obligation” means any Indebtedness of any Loan Party owing to any Subsidiary that is (i) not a Loan Party and (ii) organized in a jurisdiction in which no other Loan Party is organized, and the aggregate principal amount of such Indebtedness does not exceed $23,800,000 at any time.
“Existing Credit Agreement” means that certain Super Senior Revolving Facility Agreement dated as of June 10, 2011, among Holdings, Intermediate Holdings, the German Borrower, as the Company, UBS Limited, as Agent and Security Agent, and the other parties thereto, as the same has been amended, restated, supplemented or otherwise modified prior to the Closing Date.
“Existing PIK Notes” means the Orion Engineered Carbons Finance & Co. S.C.A.’s $425,000,000 9.25%/10.00% PIK Toggle Notes due 2019.
“Existing Senior Secured Notes” means the Orion Engineered Carbons BondCo GmbH’s Euro Denominated 10.000% Senior Secured Notes due 2018 and U.S. Dollar Denominated 9.625% Senior Secured Notes due 2018.
“Extended Revolving Credit Commitment” has the meaning specified in Section 2.15(a)(ii). “Extended Revolving Loans” has the meaning specified in Section 2.15(a)(ii).
“Extended Term Loans” has the meaning specified in Section 2.15(a)(iii). “Extending Term Lender” means any Term Lender holding Extended Term Loans. “Extension” has the meaning specified in Section 2.15(a).
“Extension Offer” has the meaning specified in Section 2.15(a).
“Facility” means the Term Facilities, the Revolving Credit Facility or the Letter of Credit Sublimit, as the context may require.
“Factoring Assets” means any accounts receivable owed to any Borrower or any Subsidiary (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, all proceeds of such accounts receivable, any bank accounts (if such bank accounts are used solely to collect, receive and hold such proceeds) and other assets (including contract rights, transport insurance policies and credit insurance policies) which are of the type customarily transferred or in respect of which security interests are customarily granted in connection with the factoring of accounts receivable and which are sold, transferred, pledged or otherwise conveyed by a Borrower or a Subsidiary pursuant to a Permitted Factoring Arrangement.
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NY\6497185.2
Exhibit 10.1
“Failed Auction” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Fair Market Value” means the current value that would be attributed to Securitization Assets or Factoring Assets by an independent and unaffiliated third party purchasing the Securitization Assets or Factoring Assets in an arms-length sale transaction, as determined in good faith by the board of directors of the Borrower.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any intergovernmental agreements and fiscal or regulatory legislation, rules or official interpretations adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“Federal Funds Effective Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnightcalculated by the NYFRB based on such day’s federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, 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 soby depositary institutions, as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day,by the NYFRB as the federal funds effective rate; provided that if the Federal Funds Effectiv Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent.shall be less than zero, suh rate shall be deemed to be zero for the purposes of calculating such rate.
“Fee Letter” means the Fee Letter dated July 3, 2014 by and among the German Borrower and certain of the Arrangers.
“Fifth Amendment” means the certain fifth amendment to this Agreement dated as of November 2, 2017, by and among the Borrower Representative, the other Loan Parties party thereto, the Amendment Arrangers (as defined therein), the Administrative Agent and the Lenders party thereto.
“Fifth Amendment Effective Date” shall have the meaning given to it in the Fifth Amendment. “Finance Party” means any Agent, Arranger, L/C Issuer or Lender.
“Financial Officer” of any Person means the chief financial officer, the treasurer, any assistant treasurer, any vice president of finance or the controller of such Person or any officer with substantially equivalent responsibilities of any of the foregoing.
“Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of a Financial Officer of each Borrower that such financial statements fairly present, in all material respects, in accordance with IFRS, the consolidated financial condition of such Borrower as at the dates indicated and the results of its operations and its cash flows for the periods indicated, subject to (in the case of unaudited financial statements only) changes resulting from audit and normal year-end adjustments.
“First Lien Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt as of such date (net of the Unrestricted Cash Amount as of such date) to (b) Consolidated Adjusted EBITDA of Parent and its Subsidiaries for the Test Period then most recently ended for which financial statements have been delivered pursuant to Section 6.01(b) or (c), as applicable.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of the Parent ending on December 31 of each year.
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NY\6497185.2
Exhibit 10.1
“Fitch” means Fitch Ratings Inc. and any successor thereto.
“Flood Hazard Property” means any Real Estate Asset subject to a Mortgage and located in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to Adjusted Term SOFR. For the avoidance of doubt, for the Initial Term Loans, the initial Floor is 0.50% per annum.
“Foreign Benefit Event” means, with respect to any Foreign Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable Law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required contributions or payments, under any applicable Law, on or before the due date for such contributions or payments, (c) the receipt of a notice by a Governmental Authority relating to (i) the intention to terminate any such Foreign Plan or to appoint a trustee or similar official to administer any such Foreign Plan or (ii) the insolvency of any such Foreign Plan, (d) the incurrence of any liability by the German Borrower or any its Subsidiaries under applicable Law on account of the complete or partial termination of such Foreign Plan or the complete or partial withdrawal of any participating employer therein or (e) the occurrence of any transaction that is prohibited under any applicable Law and that could reasonably be expected to result in the incurrence of any liability by the German Borrower any of its Subsidiaries, or the imposition on the German Borrower or any of its Subsidiaries of, any fine, excise tax or penalty resulting from any noncompliance with any applicable Law.
“Foreign Casualty Event” shall have the meaning assigned to such term in Section 2.05(b)(ix). “Foreign Disposition” shall have the meaning assigned to such term in Section 2.05(b)(ix).
“Foreign Lender” means (a) if the applicable Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a jurisdiction other than that in which the applicable Borrower is resident for tax purposes.
“Foreign Plan” means any pension plan, benefit plan, fund (including any superannuation fund) or other similar program that, under the applicable Law of any jurisdiction other than the United States, is required to be funded through a trust or other funding vehicle (other than a trust or funding vehicle maintained exclusively by a Governmental Authority) by a Loan Party primarily for the benefit of employees employed and residing outside the United States.
“Foreign Subsidiary” means any direct or indirect Subsidiary of the German Borrower that is not a U.S. Subsidiary.
“Fourth Amendment” means the certain fourth amendment to this Agreement dated as of May 31, 2017 by and among the Loan Parties, the Lenders party thereto, the Amendment Arranger (as defined therein), each L/C Issuer party thereto and the Administrative Agent.
“Fourth Amendment Effective Date” shall have the meaning given to the term “Amendment Effective Date” as defined in the Fourth Amendment.
“FRB” means the Board of Governors of the Federal Reserve System of the United States. “French Guarantor” means any Guarantor organized or incorporated in France.
“French Loan Party” means any Loan Party organized or incorporated in France.
“Fronting Exposure” means, at any time there is a Defaulting Lender under any Tranche of the Revolving Credit Facility, with respect to an L/C Issuer under such Tranche, such Defaulting Lender’s Pro Rata Share of the outstanding L/C Obligations under such Tranche (other than L/C Obligations as to which such Defaulting Lender’s
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NY\6497185.2
Exhibit 10.1
participation obligation has been reallocated to other Non-Defaulting Lenders under such Tranche or Cash Collateralized in accordance with the terms hereof).
“Funds Flow Statement” means a funds flow statement mutually agreed among the Borrowers and the Lead Arrangers which includes a statement of the sources and uses for the Transaction.
“GAAP” means generally accepted accounting principles in the United States; provided, however, that if the Borrower Representative (on behalf of the Borrowers) notifies the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring after the Change in Accounting Election Date to the generally accepted accounting principles in the United States or the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change to the generally accepted accounting principles in the United States or in the application thereof, then such provision shall be interpreted on the basis of the generally accepted accounting principles in the United States as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
“German Borrower” has the meaning specified in the introductory paragraph to this Agreement.
“German Closing Security Documents” means (a) the German law share pledge agreement among Parent as pledgor, Holdings and the Collateral Agent relating to the shares of Holdings, (b) the German law share pledge agreement among Holdings as pledgor, Intermediate Holdings and the Collateral Agent relating to the shares of Intermediate Holdings, (c) the German law share pledge agreement among Intermediate Holdings as pledgor, the German Borrower and the Collateral Agent relating to the shares of the German Borrower, (d) the German law share pledge agreement among the German Borrower as pledgor, Orion Engineered Carbons International GmbH and the Collateral Agent relating to the shares of Orion Engineered Carbons International GmbH, (e) the German law security assignment agreement between Intermediate Holdings as assignor and the Collateral Agent relating to intra- group receivables, (f) the German law insurance receivables assignment agreement between the German Borrower as assignor and the Collateral Agent relating to insurance receivables of the German Borrower governed by German law, (g) a German law account pledge agreement among Parent, Intermediate Holdings and Holdings as pledgors and the Collateral Agent relating to the respective bank accounts of the pledgors, (h) a German law account pledge agreement among Orion Engineered Carbons International GmbH as pledgor and the Collateral Agent relating to the bank accounts of the pledgor, (i) a German law global assignment of receivables between the German Borrower as assignor and the Collateral Agent relating to certain trade and other receivables, (j) a German law security transfer agreement between the German Borrower as transferor and the Collateral Agent relating to movable assets of the transferors, (k) a German law assignment of receivables between Orion Engineered Carbons S.r.l. as assignor and the Collateral Agent relating to intra-group receivables, (l) a German law security purpose agreement relating to land charges between the German Borrower as chargor and the Collateral Agent and (m) a German law land charge, including a submission to immediate foreclosure, among the German Borrower as chargor and the Collateral Agent relating to certain real estate of the German Borrower.
“German Guarantor” means any Guarantor incorporated under the laws of Germany. “German Guarantor Guaranty” has the meaning assigned to such term in Section 12.10(a).
“German Insolvency Code” means the German Insolvenzordnung of October 5, 1994, as amended.
“German Obligor” means, collectively, Holdings, Intermediate Holdings, the German Borrower and any German Guarantor and “German Obligors” means all of them.
“German Real Estate Security” has the meaning specified in the definition of “Excluded Taxes”. “GmbHG” has the meaning assigned to such term in Section 12.10(b).
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NY\6497185.2
Exhibit 10.1
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, 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).
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Granting Lender” has the meaning specified in Section 10.05(e).
“Guarantee” means any obligation, contingent or otherwise, of any Person guaranteeing, or having the economic effect of guaranteeing, any Indebtedness or other monetary obligation of any other Person (the “Primary Obligor”) in any manner and including any obligation of such Person, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or monetary obligation, (e) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part) or (f) secured by any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
“Guaranteed Obligations” has the meaning assigned to such term in Section 12.01.
“Guarantor” means, collectively, (a) the Original Guarantors and (b) each Subsidiary of the Parent that executes a Guarantee after the Closing Date pursuant to Section 6.12.
“Guarantor Percentage” has the meaning assigned to such term in Section 12.11. “Guaranty and Security Principles” means the principles set forth on Schedule 1.01(b).
“Hazardous Materials” means any chemical, material, substance or waste, or any constituent thereof, exposure to which is prohibited, limited or regulated by any Environmental Law or any Governmental Authority.
“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Material, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Material, including any corrective action or response action with respect to any of the foregoing.
“Hedge Agreement” means any agreement with respect to any Derivative Transaction between any Loan Party and any other Person.
“Hedge Bank” means any Person that has executed the Intercreditor Agreement as a “Hedge Counterparty” (as defined in the Intercreditor Agreement) or executed and delivered (in its capacity as a “Hedge Counterparty” (as
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NY\6497185.2
Exhibit 10.1
defined in the Intercreditor Agreement)) a Creditor/Representative Xxxxxxx to the Collateral Agent and the Administrative Agent, which Creditor/Representative Xxxxxxx has been accepted in accordance with the terms of the Intercreditor Agreement.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“HGB” has the meaning assigned to such term in Section 12.10(b).
“Historical Financial Statements” has the meaning assigned to such term in Section 5.04(a). “Holdings” has the meaning assigned to such term in the introductory paragraph to this Agreement. “Honor Date” has the meaning specified in Section 2.03(c)(i).
“IFRS” means the International Financial Reporting Standards promulgated by the International Accounting Standards Board; provided, however, that if the Borrower Representative (on behalf of the Borrowers) notifies the Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date to the International Financial Reporting Standards or the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change to the International Financial Reporting Standards or in the application thereof, then such provision shall be interpreted on the basis of to the International Financial Reporting Standards as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
“Immaterial Subsidiary” means, as of any date, any Subsidiary of the German Borrower that is not a Material Subsidiary.
“Immediate Family Member” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, such individual’s estate (or an executor, administrator, heir or legatee, in each case, acting on their behalf) or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
“Incremental Cap” has the meaning assigned to such term in Section 2.14(a).
“Incremental Commitment” means any commitment made by a Lender to provide all or any portion of an Incremental Facility or Incremental Loans.
“Incremental Equivalent Debt” has the meaning assigned to such term in Section 7.01(x). “Incremental Facilities” has the meaning assigned to such term in Section 2.14(a). “Incremental Loans” has the meaning assigned to such term in Section 2.14(a).
“Incremental Revolving Commitment” means any commitment made by a Lender to provide all or any portion of an Incremental Revolving Facility or Incremental Revolving Loans.
“Incremental Revolving Facility” has the meaning assigned to such term in Section 2.14(a).
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NY\6497185.2
Exhibit 10.1
“Incremental Revolving Facility Lender” means, with respect to any Incremental Revolving Facility, each Revolving Lender providing any portion of such Incremental Revolving Facility.
“Incremental Revolving Loans” has the meaning assigned to such term in Section 2.14(a).
“Incremental Term Commitment” means any commitment made by a Lender to provide all or any portion of an Incremental Term Facility or Incremental Term Loans.
“Incremental Term Facility” has the meaning assigned to such term in Section 2.14(a). “Incremental Term Loans” has the meaning assigned to such term in Section 2.14(a).
“Indebtedness” as applied to any Person, means, without duplication, (a) all indebtedness for borrowed money; (b) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with IFRS; (c) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments to the extent the same would appear as a liability on a balance sheet prepared in accordance with IFRS; (d) any obligation owed for all or any part of the deferred purchase price of property or services (excluding
(w) any earn out obligation or purchase price adjustment until such obligation becomes a liability on the balance sheet (excluding the footnotes thereto) in accordance with IFRS, (x) any such obligations incurred under ERISA, (y) accrued expenses and trade accounts payable in the ordinary course of business (including on an inter-company basis) and (z) liabilities associated with customer prepayments and deposits), which purchase price is (i) due more than six months from the date of incurrence of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument to the extent the same would appear as a liability on a balance sheet prepared in accordance with IFRS; (e) all Indebtedness of others secured by any Lien on any property or asset owned or held by such Person regardless of whether the indebtedness secured thereby shall have been assumed by such Person or is non-recourse to the credit of such Person; (f) the face amount of any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for reimbursement of drawings (except to the extent the relevant reimbursement obligations relate to trade payables and are satisfied within 20 days following the incurrence thereof);
(g) the Guarantee by such Person of the Indebtedness of another; (h) all obligations of such Person in respect of any Disqualified Capital Stock and (i) all net obligations of such Person in respect of any Derivative Transaction, including any Hedge Agreement, whether or not entered into for hedging or speculative purposes; provided that (i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any calculation of the Total Net Leverage Ratio, the First Lien Leverage Ratio, the Interest Coverage Ratio or any other financial ratio under this Agreement and (ii) the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the fair market value of the property encumbered thereby as determined by such Person in good faith. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness 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 a joint venturer, except to the extent such Person’s liability for such Indebtedness is otherwise limited and only to the extent such Indebtedness would otherwise be included in the calculation of Consolidated Total Debt; provided that notwithstanding anything herein to the contrary, the term “Indebtedness” shall not include, and shall be calculated without giving effect to, (y) the effects of Accounting Standards Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the terms of such Indebtedness; and any such amounts that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness hereunder and (z) the effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivative created by the terms of such Indebtedness and any such amounts that would have constituted Indebtedness under this Agreement but for the application of this sentence shall not be deemed to be an incurrence of Indebtedness under this Agreement. For the avoidance of doubt, Indebtedness shall exclude ordinary course intercompany payables among Parent and its subsidiaries.
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NY\6497185.2
Exhibit 10.1
“Indemnified Taxes” means (a) all 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 (a), all Other Taxes.
“Indemnitee” has the meaning assigned to such term in Section 10.03(b). “Information” has the meaning assigned to such term in Section 5.11(a).
“Initial Dollar Term Borrowing” means a borrowing consisting of simultaneous Initial Dollar Term Loans having the same Interest Period made by each of the Term Lenders with an Initial Dollar Term Commitment pursuant to Section 2.01(a) on the Closing Date.
“Initial Dollar Term Commitment” means, as to each Term Lender, its obligation to make Initial Dollar Term Loans to the Borrowers pursuant to Section 2.01(a) in an aggregate principal amount not to exceed the amount set forth opposite such Term Lender’s name on Schedule 2.01 under the caption “Initial Dollar Term Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement including as such amount may be reduced from time to time pursuant to Section 2.06 or reduced or increased from time to time pursuant to assignments by or to such Term Lender pursuant to an Assignment and Assumption. The initial aggregate amount of the Initial Dollar Term Commitments is an aggregate principal amount equal to the Euro Amount of €266,000,000 (which shall be fixed at the Dollar Amount of $358,062,600).
“Initial Dollar Term Loans” has the meaning specified in Section 2.01(a).
“Initial ESG Testing Period” means the period from (and including) January 1, 2022 to (and including) December 31, 2025.
“Initial Euro Term Borrowing” means a borrowing consisting of simultaneous Initial Euro Term Loans having the same Interest Period made by each of the Term Lenders with an Initial Euro Term Commitment pursuant to Section 2.01(b) on the Closing Date.
“Initial Euro Term Commitment” means, as to each Term Lender, its obligation to make Initial Euro Term Loans to the Borrowers pursuant to Section 2.01(b) in an aggregate principal amount not to exceed the amount set forth opposite such Euro Term Lender’s name on Schedule 2.01 under the caption “Initial Euro Term Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement including as such amount may be reduced from time to time pursuant to Section 2.06 or reduced or increased from time to time pursuant to assignments by or to such Term Lender pursuant to an Assignment and Assumption. The initial aggregate amount of the Initial Euro Term Commitments is €399,000,000.
“Initial Euro Term Loans” has the meaning specified in Section 2.01(b).
“Initial Term Borrowings” means (a) the Initial Euro Term Borrowing and (b) the Initial Dollar Term Borrowing.
“Initial Term Commitments” means (a) the Initial Euro Term Commitments and (b) the Initial Dollar Term Commitments.
“Initial Term Loans” means (a) the Initial Euro Term Loans and (b) the Initial Dollar Term Loans.
“Intercreditor Agreement” means that certain Intercreditor Agreement substantially in form of Exhibit I
hereto.
“Interest Coverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Adjusted EBITDA of Parent and its Subsidiaries for the most recently ended Test Period for which financial statements have
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NY\6497185.2
Exhibit 10.1
been delivered pursuant to Section 6.01(b) or (c), as applicable, to (b) Consolidated Interest Expense of Parent and its Subsidiaries for such Test Period.
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a Term Benchmark Loan or 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, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made (commencing with the last Business Day of December 2014).
“Interest Period” means, as to each Term Benchmark Loan or Eurocurrency Rate Loan, the period commencing on the date such Term Benchmark Loan or Eurocurrency Rate Loan is disbursed or converted to or continued as a Term Benchmark Loan or Eurocurrency Rate Loan, as applicable, and ending on the date one, three or six months thereafter, or to the extent consented to by all Appropriate Lenders, two or twelve months thereafter (or such shorter interest period as may be agreed to by all Appropriate Lenders), as selected by the Borrower Representative in a Committed 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 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 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 scheduled Maturity Date of the Facility under which such Loan was made.
“Intermediate Holdings” has the meaning assigned to such term in the introductory paragraph to this Agreement.
“Interpolated Rate” means, in relation to the Eurocurrency Rate for any Eurocurrency Rate Loan, the rate per annum (rounded to the same number of decimal places as the relevant Eurocurrency Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the applicable Eurocurrency Rate for the longest period (for which the applicable Eurocurrency Rate is available for the applicable currency) that is shorter than the Interest Period of that Eurocurrency Rate Loan and (b) the applicable Eurocurrency Rate for the shortest period (for which such Eurocurrency Rate is available for the applicable currency) that exceeds the Interest Period of that Eurocurrency Rate Loan, in each case, as of (x) in the case of the Eurocurrency Rate based on clauses (a) and (c) of the definition of “Eurocurrency Rate”, 11:00 a.m. (London time) or (y) in the case of the Eurocurrency Rate based on clause (b) of the definition of “Eurocurrency Rate”, 11:00 a.m. (Brussels time), two Business Days prior to the first day of such Interest Period. When determining the rate for a period which is less than the shortest period for which the relevant Eurocurrency Rate is available, the applicable Eurocurrency Rate for purposes of clause (a) above shall be deemed to be the Overnight Rate.
“Investment” means (a) any purchase or other acquisition by the Borrowers or any of their Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person (other than the Borrowers or a Guarantor), (b) the acquisition by purchase or otherwise (other than purchases or other acquisitions of inventory, materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or fixed assets of any Person or any division or line of business or other business unit of any Person and (c) any loan, advance (other than (i) advances to current or former employees, officers, directors, members of management, managers, consultants or independent contractors of the Borrowers or their Subsidiaries or any Parent Company for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business and (ii) advances made on an intercompany basis in the ordinary course of business for the purchase of
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NY\6497185.2
Exhibit 10.1
inventory) or capital contribution by the Borrowers or any of their Subsidiaries to any other Person (other than the Borrowers or any Guarantor). Subject to Section 6.10, the amount of any Investment shall be the original cost of such Investment, plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, but giving effect to any repayments of principal in the case of Investments in the form of loans and any return of capital or return on Investment in the case of equity Investments (whether as a distribution, dividend, redemption or sale but not in excess of the amount of the initial Investment).
“Investors” has the meaning specified in the definition “Permitted Holders”. “IP Rights” has the meaning specified in Section 5.05(c).
“IPO” means the underwritten initial public offering of common shares of the Parent conducted pursuant to the Parent’s Registration Statement on Form F-1, initially filed with the Securities and Exchange Commission on April 21, 2014, that produces aggregate net proceeds to the Parent of at least $320,000,000.
“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 applicable L/C Issuer and the applicable Borrower or any Subsidiary or in favor of such L/C Issuer and relating to such Letter of Credit.
“Italian Civil Code” means the Italian civil code, enacted by Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.
“Italian Obligor” means an Loan Party which is incorporated under the laws of Italy. “Italian Usury Law” has the meaning specified in Section 2.08(e).
“Junior Indebtedness” means any Subordinated Indebtedness or Indebtedness secured by Liens that are expressly junior to the Liens of the Collateral Agent with respect to the Collateral.
“Korean Guarantor” means a Guarantor incorporated or organized under the laws of the Republic of Korea. “Korean Intercompany Lender” means (i) Orion Engineering Carbons Korea Co., Ltd., in the case Orion
Engineering Carbons Co., Ltd. is the borrower of the Korean Intercompany Loan, and (ii) Orion Engineered Carbons
GmbH (formerly known as Kinove German Bidco GmbH), in the case Orion Engineering Carbons Korea Co., Ltd. is the borrower of the Korean Intercompany Loan.
“Korean Intercompany Loan” means an intercompany loan made pursuant to a Korean Intercompany Loan Agreement.
“Korean Intercompany Loan Agreement” means all intercompany loan agreements entered into (or to be entered into) between a Korean Intercompany Lender and a Korean Guarantor.
“Latest Maturity Date” means, at any date of determination, the latest maturity or expiration date applicable to any Term Loan Tranche or Revolving Tranche at such time under this Agreement (including the latest maturity date or expiration date of any Extended Revolving Credit Commitment or any Extended Term Loan, in each case as extended in accordance with this Agreement from time to time).
“Laws” means, collectively, all applicable international, foreign, federal, provincial, state and local laws, 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
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NY\6497185.2
Exhibit 10.1
enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed by the Borrowers on the date required under Section 2.03(c)(i) or refinanced as a Revolving Credit Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“L/C Issuer” means any Lender reasonably acceptable to the Borrower Representative and with notice to the Administrative Agent that agrees to issue Letters of Credit pursuant hereto, in its capacity as an 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 1.10. 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.
“Lead Arrangers” means Xxxxxxx Xxxxx and UBS, in their respective capacities as exclusive joint global coordinators and bookrunners.
“Lender” has the meaning specified in the introductory paragraph to this Agreement and, as the context requires, includes each L/C Issuer and each Ancillary Lender.
“Lending Office” means, as to any Lender, the office or offices of such Xxxxxx described as such in such Xxxxxx’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower Representative and the Administrative Agent.
“Letter of Credit” means (a) any letter of credit issued hereunder(which may be a commercial letter of credit or a standby letter of credit) and (b) any guarantee, indemnity or other instrument, in each case in a form requested by the Borrower Representative and agreed by the applicable L/C Issuer.
“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 applicable L/C Issuer, together with a request for L/C Credit Extension, substantially in form and substance reasonably acceptable to the applicable L/C Issuer and Administrative Agent.
“Letter of Credit Expiration Date” means, subject to Section 2.03(a)(i)(C), the day that is five Business Days prior to the scheduled Maturity Date then in effect for the applicable Revolving Tranche (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Sublimit” means a Euro Amount equal to $29,700,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“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 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 Capital Lease having substantially the same economic effect as
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NY\6497185.2
Exhibit 10.1
any of the foregoing), in each case, in the nature of security; provided that in no event shall an operating lease in and of itself be deemed a Lien.
“Loan” means an extension of credit by a Lender to the Borrowers under Article II in the form of a Term Loan (solely with respect to extensions of credit made to the Term Borrowers) or a Revolving Credit Loan (solely with respect to extensions of credit made to the Revolving Borrowers).
“Loan Documents” means, collectively, (i) this Agreement, (ii) the Notes, (iii) the Guarantee, (iv) the Collateral Documents, (v) each Letter of Credit Application, (vi) the Intercreditor Agreement and any other intercreditor agreement entered into in accordance with the terms of this Agreement, (vi) any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of this Agreement, (vii) the Fee Letter, (viii) any Refinancing Amendment, (ix) any Ancillary Document and (x) any other documents or instrument designated by the Borrower Representative and the Administrative Agent as a “Loan Document.” Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, amendments and restatements, supplements or other modifications thereto.
“Loan Guaranty” means the guaranty set forth in Article 12 of this Agreement. “Loan Parties” means, collectively, the Borrowers and the Guarantors.
“Loan Party EBITDA” means, for any period for any Loan Party, the aggregate (without double counting) earnings before interest, tax, depreciation and amortization attributable to such Loan Party for such period, calculated on the same basis as Consolidated Adjusted EBITDA, but on an unconsolidated basis, and excluding all intra-group items and investments in such Loan Party’s Subsidiaries.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank market.
“Luxembourg” means the Grand Duchy of Luxembourg.
“Luxembourg Companies Register” means the Luxembourg Register of Commerce and Companies. “Luxembourg Guarantor” means any Guarantor whose registered office or place of central administration is
in Luxembourg.
“Luxembourg Loan Party” means the Parent and any Loan Party whose registered office or place of central administration is in Luxembourg.
“Luxembourg Security Documents” means (i) the Luxembourg law account pledge agreement made between the Parent as pledgor and the Collateral Agent relating to the bank accounts of the Parent and (ii) the Luxembourg law receivables pledge agreement made between the Parent as pledgor and the Collateral Agent relating to certain receivables owed to the Parent.
“Majority Lenders” means, with respect to any Tranche, those Non-Defaulting Lenders having Loans or Commitments in respect of such Tranche and which would constitute the Required Lenders under, and as defined in, this Agreement if all outstanding Obligations of the other Tranches under this Agreement were repaid in full and all Commitments with respect thereto were terminated.
“Management Determination” has the meaning assigned to such term in Section 12.10(f)(i).
“Material Adverse Effect” means (a) a material adverse effect on the business, assets, property, liabilities (actual or contingent), financial condition or results of operations of the Restricted Group, taken as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to perform their respective obligations
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NY\6497185.2
Exhibit 10.1
under the Loan Documents or (c) a material adverse effect on the rights and remedies of the Agents or the Lenders under the Loan Documents.
“Material Non-Public Information” means information which is (i) material with respect to Parent or any of its Subsidiaries, or any of the securities of any of the foregoing, for purposes of U.S. federal and state securities laws and (ii) not publicly available.
“Material Real Estate Asset” means (a) any fee-owned Real Estate Asset owned by any Loan Party as of the Closing Date having a fair market value (as reasonably estimated by the Borrowers) in excess of $5,900,000 as of such date and (b) any fee-owned Real Estate Asset acquired by any Loan Party after the Closing Date having a fair market value (as reasonably estimated by the Borrowers) in excess of $5,900,000 as of the date of acquisition thereof.
“Material Subsidiary” means, at any time:
(a)any Subsidiary of the German Borrower that:
(i)is listed on Schedule 1.01(e), provided that, after the Closing Date, such Subsidiaries will only continue to be Material Subsidiaries to the extent they meet the conditions set forth in clauses (ii) or (iii) below;
(ii)has Consolidated Adjusted EBITDA (excluding goodwill, intra-group items and Investments in Subsidiaries) for any Test Period representing 5% or more of the Consolidated Adjusted EBITDA of Parent and its Subsidiaries for such Test Period; or
(iii)has gross assets (calculated as total assets excluding goodwill, intra-group items and Investments in Subsidiaries) at such time representing 5% or more of the consolidated gross assets of Parent and its Subsidiaries at such time,
each as determined by reference to the most recently delivered Compliance Certificate delivered with the financial statements pursuant to Sections 6.01(b) and 6.01(c); and
(b)any direct holding company of a wholly-owned Subsidiary that itself is a Material Subsidiary pursuant to paragraph (a) above.
“Maturity Date” means: (a) with respect to the Revolving Credit Facility, the earlier of (i) April 25, 2024 (the “Original Revolving Maturity Date”) and (ii) the date of termination in whole of the Revolving Credit Commitments and the Letter of Credit Commitments pursuant to Section 2.06(a) or 8.02; and (b) with respect to the Initial Term Loans, the earliest of (i) September 24, 2028 (the “Original Term Maturity Date”), (ii) the date of termination in whole of the Initial Term Commitments pursuant to Section 2.06(a) prior to any Initial Term Borrowing and (iii) the date that the Initial Term Loans are declared due and payable pursuant to Section 8.02; provided that the reference to Maturity Date with respect to (i) Term Loans and Revolving Credit Commitments that are the subject of a loan modification offer pursuant to Section 10.02, (ii) Term Loans and Revolving Credit Commitments that are incurred pursuant to Sections 2.14 or 2.18 after the Ninth Amendment Effective Date and (iii) Extended Term Loans and Extended Revolving Credit Commitments, shall, in each case, be the final maturity date as specified in the loan modification documentation, incremental documentation, specified refinancing documentation or Extension Offer, as applicable thereto.
“Maximum Guaranteed Amount” has the meaning assigned to such term in Section 12.12(b). “Maximum Liability” has the meaning assigned to such term in Section 12.09.
“Maximum Rate” has the meaning assigned to such term in Section 10.19.
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NY\6497185.2
Exhibit 10.1
“Minimum Extension Condition” has the meaning assigned to such term in Section 2.15(b). “Moody’s” means Xxxxx’x Investors Service, Inc. and any successor thereto.
“Mortgaged Properties” means the owned real properties of the Loan Parties specified on Schedule 1.01(c), and each other Material Real Estate Asset with respect to which a Mortgage is required to be granted hereunder pursuant to Section 6.12.
“Mortgages” means any mortgage, land charge (Grundschuld), deed of trust or other agreement which grants or evidences a Lien in favor of the Collateral Agent, for the benefit of the Collateral Agent and the other relevant Secured Parties, on any Material Real Estate Asset (it being understood and agreed that any requirement for Mortgages shall be subject to the provisions of Section 6.12).
“Multiemployer Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any of its Subsidiaries, or any of their respective ERISA Affiliates, makes or is obligated to make contributions and with respect to which any of them has an ongoing obligation.
“Narrative Report” means, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of the Borrowers and their Subsidiaries for the applicable Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate.
“Net Assets” has the meaning assigned to such term in Section 12.10(a).
“Net Insurance/Condemnation Proceeds” means an amount equal to: (a) any Cash payments or proceeds (including Cash Equivalents) received by the Borrowers or any of their Subsidiaries (x) under any casualty insurance policy in respect of a covered loss thereunder of any assets of the Borrowers or any of their Subsidiaries or (y) as a result of the taking of any assets of the Borrowers or any of their Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, minus (b) (i) any actual out-of-pocket costs incurred by the Borrowers or any of their Subsidiaries in connection with the adjustment, settlement or collection of any claims the Borrowers or any of their Subsidiaries in respect thereof, (ii) the payment of the outstanding principal amount of, premium or penalty, if any, and interest and other amounts on any Indebtedness (other than the Loans or other Indebtedness secured by a Lien on the assets in question that is pari passu or junior to the Lien on the Collateral securing the Secured Obligations) that is secured by a Lien on the assets in question and that is required to be repaid (or otherwise comes due or would be in default, in each case, pursuant to the terms thereof as a result of such loss, taking or sale and is repaid) under the terms thereof as a result of such loss, taking or sale, (iii) [reserved], (iv) in the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (v) any selling costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, transfer and similar Taxes and the Borrower Representative ’s good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements in connection with such sale)) in connection with any sale of such assets as referred to in clause (a)(y) of this definition and (vi) any amounts provided as a reserve, in accordance with IFRS, against any liabilities under any indemnification obligations or purchase price adjustments associated with any sale or taking of such assets as referred to in clause (a)(y) of this definition (provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Insurance/Condemnation Proceeds).
“Net Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds thereof (including Cash Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-Cash consideration initially received), net of (i) selling costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, transfer and similar Taxes and the Borrower Representative ’s good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements) in connection with such sale), (ii) amounts provided as a reserve, in accordance with IFRS, against any liabilities under any indemnification obligations or purchase price adjustment associated with such Disposition (provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Proceeds),
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NY\6497185.2
Exhibit 10.1
(iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness (other than the Loans or other Indebtedness secured by a Lien on the assets in question that is pari passu or junior to the Lien on the Collateral securing the Secured Obligations) which is secured by the asset sold in such Disposition and which is required to be repaid or otherwise comes due or would be in default, in each case, pursuant to the terms thereof as a result of such Disposition and is repaid (other than any such Indebtedness assumed by the purchaser of such asset), and (iv) Cash escrows (until released from escrow to the Borrower Representative or any of its Subsidiaries) from the sale price for such Disposition; and (b) with respect to any issuance or incurrence of Indebtedness or Capital Stock, the Cash proceeds thereof, net of all Taxes and customary fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith.
“Ninth Amendment” means the certain ninth amendment to this Agreement dated as of September 30, 2021, by and among the Borrower Representative, the other Loan Parties party thereto, the Amendment Arrangers (as defined therein), the Administrative Agent and the Lenders party thereto.
“Ninth Amendment Effective Date” shall have the meaning given to it in the Ninth Amendment. “Non-Consenting Lender” has the meaning specified in Section 3.08(c).
“Non-Debt Fund Affiliate” means the Sponsor and any Affiliate of the Sponsor other than any Debt Fund Affiliate, Parent or any Subsidiary of Parent.
“Non-Defaulting Lender” means, at any time, any Lender other than a Defaulting Lender.
“Non-German Subsidiary” means any Subsidiary that is not organized, formed or incorporated in the Federal Republic of Germany.
“Non-Paying Guarantor” has the meaning assigned to such term in Section 12.11. “Note” means a Term Note or a Revolving Credit Note, as the context may require.
“NOx Emissions Target” means the following cumulative nitrogen oxide emissions targets for the United States based plants (being Belpre, Ohio; Orange, Texas; Ivanhoe, Lose Angeles and Borger, Texas (each an “ESG Plant”)):
Fiscal Year ending | NOx Emissions Target (in tonnes) | ||||
December 31, 2022 | 1,620 | ||||
December 31, 2023 | 1,430 | ||||
December 31, 2024 | 1,144 | ||||
December 31, 2025 and each Fiscal Year thereafter until the Fiscal Year ending December 31, 2028 | 1,049 |
“NYFRB” means the Federal Reserve Bank of New York.
“Obligated Party” has the meaning assigned to such term in Section 12.02.
“Obligations” means 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, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due,
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NY\6497185.2
Exhibit 10.1
now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party 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. Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the Loan Documents include (x) the obligation to pay principal, interest, Letter of Credit commissions, charges, expenses, fees, indemnities and other amounts payable by any Loan Party under any Loan Document and (y) the obligation of any Loan Party to reimburse any amount in respect of any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf of such Loan Party; provided that for the avoidance of doubt, the “Obligations” shall not include any Excluded Swap Obligations.
“OFAC” means the Office of Foreign Assets Control of the United States Treasury Department. “Organizational 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 or limited liability company agreement (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (c) with respect to any Loan Party established under the laws of Germany, solely its articles of association (Satzung or Gesellschaftsvertrag, as applicable) and, if applicable, any by-laws (Geschäftsordnung) of its supervisory or advisory board and (d) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture, trust 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.
“Original Guarantor” means Parent and each Subsidiary of Parent listed on Schedule 1.01(d) hereto. “Original Revolving Maturity Date” has the meaning specified in the definition of “Maturity Date”. “Original Term Maturity Date” has the meaning specified in the definition of “Maturity Date”. “Other L/C” has the meaning specified in Section 2.03(b)(v).
“Other Connection Taxes” means Taxes imposed on any Recipient as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising solely 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 and/or enforced any Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, excise, 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 imposed with respect to an assignment (other than an assignment made pursuant to Section 3.08).
“Outstanding Amount” means: (a) with respect to the Term Loans and Revolving Credit Loans on any date, the aggregate outstanding principal Euro Amount thereof after giving effect to any borrowings and prepayments or repayments of the Term Loans and Revolving Credit Loans (including any refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit Extensions as a Revolving Credit Borrowing), as the case may be, occurring on such date; and (b) with respect to any L/C Obligations with respect to any Revolving Tranche on any date, the Euro Amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension with respect to such Revolving Tranche occurring on such date and any other changes in the aggregate amount of the L/C Obligations with respect to such Revolving Tranche as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit (including any refinancing of outstanding unpaid drawings
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NY\6497185.2
Exhibit 10.1


“Parent” has the meaning specified in the introductory paragraph to this Agreement.
“Parent Company” means (a) Parent, (b) Holdings, (c) Intermediate Holdings, (d) any Qualified Intermediate Holding Company and (e) any other Person of which any Borrower is a direct or indirect Wholly- Owned Subsidiary, but excluding any holder of publicly issued shares of Parent.
“Participant” has the meaning specified in Section 10.05(c)(i). “Participant Register” has the meaning specified in Section 10.05(c)(ii).
“Participating Member State” means each state so described in any EMU Legislation. “Party” means a party to this Agreement.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrowers or any of their Subsidiaries, or any of their respective ERISA Affiliates, is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Permitted Acquisition” means any acquisition by any Borrower or any of its Subsidiaries, whether by purchase, merger, amalgamation or otherwise, of all or substantially all of the assets of or any business line, unit, or division or any plant of, any Person or of at least a majority of the outstanding Capital Stock of any Person (but in any event including any Investment in a Subsidiary which serves to increase such Borrower’s or any Subsidiary’s respective equity ownership in such Subsidiary); provided that on the date of execution of the purchase agreement in respect of such acquisition, no Event of Default shall have occurred and be continuing or would result from the execution of such agreement.
“Permitted Factoring Arrangement” means any transaction or series of transactions entered into by any Borrower or any Subsidiary pursuant to which any Borrower or such Subsidiary sells, conveys, assigns or otherwise transfers Factoring Assets to a Qualified Factoring Agent in return for the simultaneous payment of a purchase price in immediately available funds; provided that such transaction is on customary market terms as determined in good faith by the board of directors of the Borrower Representative.
“Permitted Holders” means (a) Triton Advisers Limited and Rhone Group Capital (together with their respective affiliates and funds managed or advised by any of them or their respective affiliates, the “Sponsors”) and other investors disclosed to the Administrative Agent prior to the Closing Date, which may include members of management of the Borrowers and their subsidiaries (together with the Sponsors, the “Investors”), and (b) any person or entity with which the persons described in clause (a) form a “group” (within the meaning of the federal

1 NTD: We will need this in connection with USD since this term is still used in the context of letters of credit.
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NY\6497185.2
Exhibit 10.1
securities laws) so long as, in the case of this clause (b), such persons described in clause (a) beneficially own more than 50% of the relevant voting stock beneficially owned by that group.
“Permitted Liens” means Liens permitted pursuant to Section 7.02.
“Permitted Securitization” means a Securitization that complies with the following criteria: (i) the Securitization (including financing terms, covenants, termination events and other provisions) is in the aggregate fair and reasonable to the Borrowers and their Subsidiaries (other than the Securitization Subsidiary), on the one hand, and the related Securitization Subsidiary, on the other hand, (ii) the Securitization, including the sale of the Securitization Assets and/or the incurrence of Indebtedness in connection therewith, is effected on market terms, taking into account the applicable Securitization market for assets similar to the respective Securitization Assets and the structure implemented for such Securitization (as determined in good faith by the Parent), and (iii) subject to the Guarantee and Security Principles, the Securitization Seller’s Retained Interest and all proceeds thereof shall constitute Collateral hereunder and all necessary steps to perfect a security interest in favor of the Collateral Agent in such Securitization Seller’s Retained Interest are taken by the applicable Borrower or Subsidiary.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Platform” has the meaning specified in Section 6.01(l).
“Pledge and Security Agreement” means that certain Pledge and Security Agreement dated as of the Closing Date to be entered into by and among the U.S. Borrower, Orion Engineered Carbons USA Holdco LLC and Orion Engineered Carbons LLC, as grantors, and the Collateral Agent, together with each other security agreement and security agreement supplement executed and delivered pursuant to Section 6.12.
“Polish Guarantor” means a Guarantor incorporated and established under the laws of Poland. “Preferred” as applied to the Equity Interests of any Person, means any Equity Interests of such Person
(other than common Equity Interests of such Person) of any class or classes (however designed) that rank prior, as to
the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to the Equity Interests of any other class of such Person.
“Prepayment Amount” has the meaning specified in Section 2.05(c).
“Prepayment Asset Sale” means any Disposition by the Borrowers or their Subsidiaries made pursuant to Section 7.07(h), Section 7.07(j), Section 7.07(o), Section 7.07(q) and Section 7.07(r).
“Prepayment Date” has the meaning specified in Section 2.05(c).
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the
U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent).
“Pro Forma Basis” or “pro forma effect” means with respect to any determination of the Total Net Leverage Ratio Interest Coverage Ratio, the First Lien Leverage Ratio, Consolidated Adjusted EBITDA or Consolidated Total Assets (including, in each case, component definitions thereof) that all specified transactions and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable Test Period (or, in the case of Consolidated Total Assets, as of the last day of such Test Period) with respect to any test or covenant for which such calculation is being made: (a) income statement items (whether positive or negative) attributable to the property or Person subject to such specified transaction, (i) in the case of a Disposition of all or substantially all of the Capital Stock of any Subsidiary of any Borrower or any business line,
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NY\6497185.2
Exhibit 10.1
unit or division of any Borrower or any of its Subsidiaries or any designation of a subsidiary as an Unrestricted Subsidiary, shall be excluded, and (ii) in the case of a Permitted Acquisition, Investment or designation of an Unrestricted Subsidiary as a Subsidiary shall be included, (b) any retirement or repayment of Indebtedness (other than normal fluctuations in revolving Indebtedness incurred for working capital purposes), (c) any Indebtedness incurred by any Borrower or any of its Subsidiaries in connection therewith; provided that, (x) 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 that is or would be in effect with respect to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such Indebtedness), (y) interest on any obligations with respect to Capital Leases shall be deemed to accrue at an interest rate reasonably determined by a Responsible Officer of such Borrower to be the rate of interest implicit in such obligation in accordance with IFRS and (z) interest on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a Eurocurrency interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as such Borrower or such Subsidiary may designate and (d) the acquisition of any assets included in calculating Consolidated Total Assets, whether pursuant to any specified transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into any Borrower or any of its subsidiaries or the Disposition of any business line, unit or division included in calculating Consolidated Total Assets; provided that, the foregoing pro forma adjustments described in clause (a) above may be applied to any such test or covenant solely to the extent that such adjustments are consistent with the definition of “Consolidated Adjusted EBITDA” and give effect to events (including operating expense reductions) that are (x) directly attributable to such transaction, (y) expected to have a continuing impact on the Borrowers and their subsidiaries and (z) factually supportable.
“Projections” means the projections of the Borrowers and the Subsidiaries included in the Information Memorandum (or a supplement thereto).
“Pro Rata Share” means, with respect to each Lender and any Facility or all the Facilities or any Tranche or all the Tranches (as the case may be) at any time, a fraction (expressed as a percentage, carried out to the ninth decimal place, and subject to adjustment as provided in Section 2.17), the numerator of which is the amount of the Commitments of such Lender under the applicable Facility or the Facilities or Tranche or Tranches (and, in the case of any Term Loan Tranche after the applicable borrowing date and without duplication, the outstanding principal amount of Term Loans under such Tranche, of such Lender, at such time) at such time and the denominator of which is the amount of the Aggregate Commitments under the applicable Facility or the Facilities or Tranche or Tranches at such time (and, in the case of any Term Loan Tranche and without duplication, the outstanding principal amount of Term Loans under such Tranche, at such time); provided that if the commitment of each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender immediately prior to such termination and after giving effect to any subsequent assignments made pursuant to the terms hereof.
The initial Pro Rata Share of each Lender as of the Closing Date is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as applicable.
“Purchase” has the meaning specified in the definition of “Dutch Auction”.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
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NY\6497185.2
Exhibit 10.1
“Qualified Factoring Agent” means a bank, financial institution or other third party which provides financing pursuant to transactions similar to the type described in the definition of “Permitted Factoring Arrangement” in the ordinary course of its business.
“Qualified Holding Company Debt” means unsecured Indebtedness of any Parent Company (A) that is not subject to any Guarantee by any subsidiary of any Parent Company, (B) that will not mature prior to the date that is six (6) months after the Latest Maturity Date in effect on the date of the issuance or incurrence thereof, (C) that has no scheduled amortization or scheduled payments of principal prior to the date that is six (6) months after the Latest Maturity Date in effect on the date of the issuance or incurrence thereof and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (it being understood that such Indebtedness may have mandatory prepayment, repurchase or redemption provisions satisfying the requirements of clause (D) below) and (D) that has mandatory prepayment, repurchase or redemption, covenant, default and remedy provisions customary for senior discount notes of an issuer that is the parent of a borrower under senior secured credit facilities; provided that the Borrower Representative shall have delivered a certificate of a Responsible Officer to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower Representative has reasonably determined in good faith that such terms and conditions satisfy the foregoing requirement (and such certificate shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower Representative within such five Business Day period that it disagrees with such determination (including a reasonably detailed description of the basis upon which it disagrees)); provided, further, that any such Indebtedness shall constitute Qualified Holding Company Debt only if immediately after giving effect to the issuance or incurrence thereof and the use of proceeds thereof, no Event of Default shall have occurred and be continuing.
“Qualified Intermediate Holding Company” means a Wholly-Owned Subsidiary of Parent (a) subject to the Guaranty and Security Principles, all of the Equity Interests of which have been pledged by Parent as Collateral and
(b) that (i) is organized in either Luxembourg or Germany, (ii) is a Guarantor, (iii) directly owns 100% of Holdings, and (iv) subject to the Guaranty and Security Principles, has granted a Lien on substantially all of its assets as Collateral, including a pledge of all of the Equity Interests of Holdings and all of its intercompany receivables; provided, that, the Guaranty and Security Principles shall not prevent (i) the pledge by Parent of the Equity Interests of the Qualified Intermediate Holding Company as Collateral, (ii) the Qualified Intermediate Holding Company from providing a Loan Guaranty, and (iii) the Qualified Intermediate Holding Company from pledging the Equity Interests of Holdings and its intercompany receivables as Collateral.
“Qualifying Bid” has the meaning assigned to such term in the definition of “Dutch Auction”. “Qualifying Bids” has the meaning specified in the definition of “Dutch Auction”.
“Real Estate Asset” means all right, title and interest of any Loan Party in and to any real property and the improvements and fixtures thereon.
“Receiving Party” has the meaning specified in Section 3.01(i)(ii).
“Recipient” means the Administrative Agent, any Lender and any 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 or under any other Loan Document, as applicable.
“Recourse Permitted Securitization” means any one or more Permitted Securitizations guaranteed by (or otherwise with recourse to) any Borrower or any Subsidiary on an unsecured basis where such guarantee or recourse constitutes Indebtedness with an aggregate principal amount outstanding at any time that does not exceed (when aggregated with the amount of all Permitted Factoring Arrangements that are recourse to Parent or any of its Subsidiaries and constitute Indebtedness then outstanding) €30,000,000.
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NY\6497185.2
Exhibit 10.1
“Reference Time” means, with respect to any setting of the then-current Benchmark means if such Benchmark is Term SOFR, 5:00 p.m. (New York City time) on the day that is two Business Days preceding the date of such setting.
“Refinancing Amendment” means an amendment to this Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrowers, the Administrative Agent and the Lenders providing Specified Refinancing Debt, effecting the incurrence of such Specified Refinancing Debt in accordance with Section 2.18.
“Refinancing Notes” means one or more series of (1) senior secured notes secured by the Collateral on a first lien “equal and ratable” basis with the Liens securing the Obligations issued by the Borrowers or (2) senior unsecured notes or senior secured notes secured by the Collateral on a “junior” basis with the Liens securing the Obligations issued by the Borrowers, in each case, in respect of a refinancing of outstanding Indebtedness of the Term Borrowers under any one or more Term Loan Tranches with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed); provided that, (a) if such Refinancing Notes shall be secured, then such Refinancing Notes shall only be secured by a security interest in the Collateral that secured the Term Loan Tranche being refinanced; (b) such Refinancing Notes shall be issued subject to customary intercreditor arrangements that are reasonably satisfactory to the Administrative Agent (it being understood that, if such Refinancing Notes are senior unsecured notes, the form of Intercreditor Agreement is satisfactory to the Administrative Agent); (c) no Refinancing Notes shall (i) mature prior to the date that is 91 days after the Latest Maturity Date with respect to Term Loans then in effect immediately after giving effect to such refinancing or (ii) be subject to any amortization prior to the final maturity thereof, or be subject to any mandatory redemption or prepayment provisions or rights (except customary asset sale or change of control provisions); (d) the covenants, events of default, guarantees, collateral and other terms of such Refinancing Notes are customary for similar debt securities in light of then-prevailing market conditions at the time of issuance (it being understood that no Refinancing Notes shall include any financial maintenance covenants (including indirectly by way of a cross-default to this Agreement), but that customary cross-acceleration provisions may be included and that any negative covenants with respect to indebtedness, investments, liens or restricted payments shall be incurrence-based) and in any event are not more restrictive, when taken as a whole, to the Restricted Group than those set forth in this Agreement (other than with respect to interest rate, prepayment premiums and redemption provisions), except for covenants or other provisions applicable only to periods after the Latest Maturity Date then in effect immediately after giving effect to such refinancing (provided that a certificate of a Responsible Officer of the Borrower Representative delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Refinancing Notes, together with a reasonably detailed description of the material terms and conditions of such Refinancing Notes or drafts of the documentation relating thereto, stating that the Borrower Representative has determined in good faith that such terms and conditions satisfy the requirements set forth in this clause (d), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower Representative of its objection during such five Business Day period (including a reasonable description of the basis upon which it objects)); (e) such Refinancing Notes may not have guarantees or Liens that are more extensive than those which applied to the Indebtedness being refinanced; and (f) the Net Cash Proceeds of such Refinancing Notes shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Term Loans under the applicable Term Loan Tranche being so refinanced.
“Register” has the meaning specified in Section 10.05(b)(iv). “Regulation S-X” means Regulation S-X under the Securities Act.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, members, directors, managers, officers, employees, agents, attorneys-in-fact, trustees and advisors of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing
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NY\6497185.2
Exhibit 10.1
any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.
“Relevant Governmental Body” shall mean with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.

“Relevant Rate” means with respect to any Term Benchmark Borrowing, Adjusted Term SOFR.2
“Relevant Party” has the meaning specified in Section 3.01(i)(ii)Screen Rate” means with respect to any Term Benchmark Borrowing, the Term SOFR Reference Rate.
“Relevant Transaction” has the meaning specified in Section 2.05(b)(ii). “Replaceable Lender” has the meaning specified in Section 3.08(a). “Replaced Revolving Facility” has the meaning specified in Section 10.02(d). “Replaced Term Loans” has the meaning specified in Section 10.02(d).
“Replacement Revolving Facility” has the meaning assigned to such term in Section 10.02(c). “Replacement Term Loans” has the meaning assigned to such term in Section 10.02(c). “Reply Amount” has the meaning assigned to such term in the definition of “Dutch Auction”. “Reply Price” has the meaning assigned to such term in the definition of “Dutch Auction”.
“Repricing Transaction” means each of (a) the prepayment, repayment, refinancing, substitution or replacement of all or a portion of the Term Loans substantially concurrently with the incurrence by any Loan Party of any term loans (including any Replacement Term Loans or Specified Refinancing Term Loans) having an effective interest cost or weighted average yield (with the comparative determinations to be made by the Administrative Agent in a manner consistent with generally accepted financial practices, and in any event consistent with the second proviso to Section 2.14(a)(iv)) that is less than the effective interest cost or weighted average yield (as determined by the Administrative Agent on the same basis) applicable to such Term Loans so prepaid, repaid, refinanced, substituted or replaced and (b) any amendment, waiver or other modification to this Agreement that would have the effect of reducing the effective interest cost of, or weighted average yield (to be determined by the Administrative Agent on the same basis as set forth in preceding clause(a)) of, the Term Loans; provided that the primary purpose of such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification was to reduce the effective interest cost or weighted average yield of the Term Loans; provided, further, that in no event shall any such prepayment, repayment, refinancing, substitution, replacement, amendment, waiver or other modification in connection with a Change of Control or Transformative Acquisition constitute a Repricing Transaction. Any such determination by the Administrative Agent as contemplated by preceding clauses
(a) and (b) shall be conclusive and binding on all Lenders, and the Administrative Agent shall have no liability to any Person with respect to such determination absent bad faith, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable decision).

2 NTD: We removed this language globally throughout the document, where applicable, since it’s understood that Term Benchmark is only in USD.
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NY\6497185.2
Exhibit 10.1
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Committed Loan Notice, and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.
“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the sum of the (a) Total Outstandings (with the aggregate Euro Amount of each Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Lender for purposes of this definition), (b) aggregate unused Term Commitments and (c) aggregate unused Revolving Credit Commitments; provided that the unused Term Commitments of, unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, (x) any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders and (y) any Affiliate Lenders (other than Debt Fund Affiliates) shall be deemed to have voted in the same proportion as Lenders that are not Affiliate Lenders vote on such matter.
“Required Revolving Lenders” means, as of any date of determination, Revolving Credit Lenders holding more than 50% of the sum of the Euro Amount of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments; provided that the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.
“Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority” means any body which has authority to exercise any Write-down and Conversion
Powers.
“Responsible Officer” means the chief executive officer, manager, president, vice president, executive vice president, chief financial officer, treasurer or assistant treasurer, director (Geschäftsführer), secretary or assistant secretary or other similar officer of a Loan Party. 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.
“Restricted Debt” has the meaning set forth in Section 7.04(b). “Restricted Debt Payment” has the meaning set forth in Section 7.04(b).
“Restricted Group” means Parent, Holdings, Intermediate Holdings, the Borrowers, and their respective Subsidiaries.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Persons thereof).
“Revaluation Rate” means:
(a)with respect to any Revolving Credit Loan denominated in Dollars, Euros or an Alternative Currency, each of the following: (i) each date of a Borrowing of such Revolving
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NY\6497185.2
Exhibit 10.1
Credit Loan, (ii) each date of a continuation of such Revolving Credit Loan pursuant to the terms of this Agreement, (iii) the date of any voluntary reduction of a Revolving Credit Commitment pursuant to this Agreement and (iv) the last day of each Fiscal Quarter of the German Borrower;
(b)with respect to any Letter of Credit denominated in Dollars, Euros or an Alternative Currency, each of the following: (i) each date of such L/C Credit Extension, (ii) each date of any amendment of such Letter of Credit that would have the effect of increasing the face amount thereof and (iii) the last day of each Fiscal Quarter of the German Borrower;
(c)with respect to any bank guarantee denominated in Dollars, Euros or an Alternative Currency, each of the following: (i) each date of issuance of such bank guarantee, (ii) each date of any amendment of such bank guarantee that would have the effect of increasing the stated amount thereof and (iii) the last day of each Fiscal Quarter of the German Borrower; and
(d)with respect to the unused Revolving Credit Commitment of a given Lender pursuant to Section 2.09(a), each day of the applicable period such unused Revolving Credit Commitment is in effect.
“Revolving Borrowers” means the German Borrower, the U.S. Borrower, Orion Engineered Carbons International GmbH, in respect of an Ancillary Facility only, any Affiliate of a Borrower that becomes a borrower of that Ancillary Facility pursuant to Section 2.19, and such other Subsidiaries of the German Borrower so long as (x) such Subsidiaries are organized in Germany or the United States, or (y) all of the Revolving Borrowers and Revolving Lenders agree, and, in the case of clauses (x) and (y), such other Subsidiaries have entered into and delivered documentation in connection therewith, as reasonably requested by the Administrative Agent, in form and substance reasonably satisfactory thereto.
“Revolving Credit Borrowing” means a borrowing of any Tranche of the Revolving Credit Facility consisting of simultaneous Revolving Credit Loans of the same Type and currency and, in the case of Term Benchmark Loans or Eurocurrency Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(c).
“Revolving Credit Commitment” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving Credit Loans to the Borrowers pursuant to Section 2.01(c) and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or in the Assignment and Assumption 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. The Revolving Credit Commitments shall include all Extended Revolving Credit Commitments, Incremental Revolving Commitments, and Ancillary Commitments. The aggregate Revolving Credit Commitment of all Revolving Credit Lenders shall be €350,000,000 on the Tenth Amendment Effective Date, as such amount may be adjusted from time to time in accordance with the terms of this Agreement.
“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.
“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment at such time (and after the termination of all Revolving Credit Commitments, any Lender that holds any Outstanding Amount in respect of Revolving Credit Loans and/or L/C Obligations).
“Revolving Credit Loan” has the meaning specified in Section 2.01(c).
“Revolving Credit Note” means a promissory note of the Revolving Borrowers payable to any Revolving Credit Lender or its registered assigns, in substantially the form of Exhibit C hereto, evidencing the aggregate
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NY\6497185.2
Exhibit 10.1
indebtedness of the Revolving Borrowers to such Revolving Credit Lender resulting from the Revolving Credit Loans made by such Revolving Credit Lender.
“Revolving Facility Utilisation” means a Revolving Credit Loan or a Letter of Credit. “Revolving Tranche” means (a) the Revolving Credit Facility, (b) any Extended Revolving Credit
Commitments, and (c) any commitments with respect to Incremental Revolving Facilities (other than any
Incremental Revolving Facility in the form of an increase to the Commitments under the Revolving Credit Facility), in each case, including the extensions of credit made thereunder.
“S&P” means Standard & Poor’s Financial Services LLC, a wholly owned subsidiary of The XxXxxx-Xxxx Companies, Inc., and any successor thereto.
“Sale and Lease-Back Transactions” has the meaning specified in Section 7.08.
“Same Day Funds” means disbursements and payments in immediately available funds.
“Sanctioned Country” means, at any time, a country or territory which is the subject of Sanctions Laws and Regulations or EU Sanctions Laws and Regulations.
“Sanctioned Person” has the meaning assigned to such term in Section 5.16(a).
“Sanctions Laws and Regulations” means (i) any sanctions or requirements imposed by, or based upon the obligations or authorities set forth in, the USA PATRIOT Act, the Executive Order No. 13224 of September 23, 2001, entitled Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), the U.S. International Emergency Economic Powers Act (50 U.S.C.
§§ 1701 et seq.), the U.S. Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), the U.S. Syria Accountability and Lebanese Sovereignty Act, the U.S. Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 or the Iran Sanctions Act, Section 1245 of the National Defense Authorization Act of 2012, all as amended, or any of the foreign assets control regulations (including but not limited to 31 C.F.R., Subtitle B, Chapter V, as amended) or any other law or executive order relating thereto administered by the U.S. Department of the Treasury Office of Foreign Assets Control, and any similar law, regulation, or executive order enacted in the United States after the date of this Agreement and (ii) any sanctions or requirements imposed under similar laws or regulations enacted by the United Kingdom that apply to any Borrower or Subsidiary.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Second Amendment” means that certain Second Amendment dated as of September 29, 2016, by and among the Loan Parties, the Administrative Agent and the Lenders party thereto.
“Second Amendment Effective Date” means the “Amendment Effective Date” as defined in the Second Amendment.
“Secondary ESG Testing Period” means the period from (and including) January 1, 2026 to (and including) December 31, 2028.
“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank, except for any such Cash Management Agreement designated by the Borrower Representative in writing to the Administrative Agent as an “unsecured cash management agreement” as of the Closing Date or, if later, as of the time of entering into such Cash Management Agreement.
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NY\6497185.2
Exhibit 10.1
“Secured Cash Management Obligations” means all Cash Management Obligations under any Secured Cash Management Agreement.
“Secured Hedge Agreement” means any Hedge Agreement permitted under Article VII that is entered into by and between any Loan Party and any Hedge Bank.
“Secured Hedging Obligations” means all Hedging Obligations under any Secured Hedge Agreement; provided that the “Secured Hedging Obligations” shall not include any Excluded Swap Obligations.
“Secured Obligations” means (a) the Obligations, (b) the Secured Hedging Obligations and (c) the Secured Cash Management Obligations; provided that the “Secured Obligations” shall not include any Excluded Swap Obligations.
“Secured Parties” means, collectively, the Administrative Agent, the Collateral Agent, the Lenders, the Hedge Banks to the extent they are party to one or more Secured Hedge Agreements, the Cash Management Banks to the extent they are party to one or more Secured Cash Management Agreements, any Supplemental Agent and each co-agent or sub-agent appointed by the Administrative Agent or the Collateral Agent from time to time pursuant to Article 9 or the Intercreditor Agreement.
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing; provided that “Securities” shall not include any earn-out agreement or obligation or any employee bonus or other incentive compensation plan or agreement.
“Securities Act” means the Securities Act of 1933, as amended.
“Securitization” means any transaction or series of transactions entered into by any Borrower or any Subsidiary pursuant to which such Borrower or such Subsidiary, as the case may be, sells, conveys, assigns, grants an interest in or otherwise transfers to a Securitization Subsidiary, Securitization Assets (and/or grants a security interest in such Securitization Assets transferred or purported to be transferred to such Securitization Subsidiary), and which Securitization Subsidiary finances the acquisition of such Securitization Assets (i) with cash, (ii) with the issuance to such Borrower or such Subsidiary of Securitization Seller’s Retained Interests or an increase in such Securitization Seller’s Retained Interests or (iii) with proceeds from the sale or collection of Securitization Assets.
“Securitization Assets” means any accounts receivable owed to any Borrower or any Subsidiary (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services, all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, all proceeds of such accounts receivable, any bank accounts (if such bank accounts are used solely to collect, receive and hold such proceeds) and other assets (including contract rights, transport insurance policies and credit insurance policies) which are of the type customarily transferred or in respect of which security interests are customarily granted in connection with securitizations of accounts receivable and which are sold, transferred, pledged or otherwise conveyed by a Borrower or a Subsidiary pursuant to a Securitization.
“Securitization Seller’s Retained Interest” means the debt or equity interests held by any Borrower or any Subsidiary in a Securitization Subsidiary to which Securitization Assets have been transferred, including any such debt or equity received as consideration for or as a portion of the purchase price for the Securitization Assets transferred, or any other instrument through which any Borrower or any Subsidiary has rights to or receives distributions in respect of any residual or excess interest in the Securitization Assets.
“Securitization Subsidiary” means a Person to which any Borrower or any Subsidiary sells, conveys, transfers or grants a security interest in Securitization Assets, which Person (i) is formed for the limited purpose of
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NY\6497185.2
Exhibit 10.1
effecting one or more Securitizations and related activities, or, in the case of a Person that is a financing conduit, which Person is formed for the limited purpose of effecting financing transactions, (ii) does not have any Indebtedness that is guaranteed by or otherwise recourse to any member of the Restricted Group or any of their respective assets or properties (other than pursuant to Standard Securitization Undertakings), and (iii) with respect to which none of the Restricted Group has any obligation to maintain such Person’s financial condition or cause such entity to achieve any specified level of operating results (other than pursuant to Standard Securitization Undertakings); provided that, in the event such Securitization Subsidiary is a subsidiary of the Parent, it shall have been designated by the board of directors in its sole discretion, as an Unrestricted Subsidiary.
“Security Supplement” has the meaning specified in the Pledge and Security Agreement. “Share Capital Increase Resolution” has the meaning assigned to such term in Section 8.01(l).
“Sixth Amendment” means the certain Sixth amendment to this Agreement dated as of May 3, 2018, by and among the Borrower Representative, the other Loan Parties party thereto, the Amendment Arrangers (as defined therein), the Administrative Agent and the Lenders party thereto.
“Sixth Amendment Effective Date” shall have the meaning given to it in the Sixth Amendment.
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NY\6497185.2
Exhibit 10.1
Plants:
“SO2 Emissions Target” means the following cumulative sulfur dioxide emissions targets for the ESG
Fiscal Year ending | SO2 Emissions Target (in tonnes) | ||||
December 31, 2022 | 11,372 | ||||
December 31, 2023 | 8,845 | ||||
December 31, 2024 | 8,529 | ||||
December 31, 2025 and each Fiscal Year thereafter until the Fiscal Year ending December 31, 2028 | 8,213 |